HON’BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

JUDGMENT:

The Second Appeal is filed questioning the judgment and decree, dated 22.11.2024, passed by the III Additional Chief Judge, City Civil Court, Hyderabad in A.S.No.275 of 2016, whereby and whereunder the judgment and decree, dated 15.09.2016, passed by the XIX Junior Civil Judge, City Civil Court, Hyderabad in O.S.No.1042 of 2013 was confirmed.

2. The appellant No.1 herein is defendant in the suit (initially the suit was filed by plaintiffs against the sole defendant; as the sole defendant expired, his legal heirs were brought on record as appellant Nos.2 to 6). Respondent Nos.1 and 2 are plaintiffs in the suit. Respondent Nos.1 and 2 expired; as such, their legal heirs were brought on record as respondent Nos.3 to 5). For convenience, hereinafter the parties are referred to as they were arrayed in the suit.

3. The brief facts of the case, which led to the filing of the present Second Appeal, are that the plaintiffs filed a suit for permanent injunction against the defendant, restraining him from trespassing or interfering with the suit schedule property, i.e., H.No.16-7-737, Kattalguda, near Kamal Talkies, Hyderabad, admeasuring 400 square yards. In the plaint, it is averred that the plaintiffs were the joint owners and possessors of the property to an extent of 1,285 square yards comprising two buildings and a vacant land. Out of this, the plaintiffs sold a part of the property on 25.03.1994 to one Mr. Khader Mohiduddin and late Ahmed Mohiuddin, who jointly purchased only 885.0 square yards under a registered sale deed. The plaintiffs reserved their title and ownership rights in respect of the remaining land to an extent of 400 square yards. The defendant on 05.05.2013, 10.05.2013, and 19.05.2013 along with others, tried to encroach upon the said 400 square yards and threatened the plaintiffs.

Hence, the suit.

4. Defendant filed written statement denying the allegations in the plaint and averred that the suit is liable to be dismissed on the ground of suppression of material fact with regard to the pendency of suit filed by the plaintiffs vide O.S.No.3840 of 2004 on the file of the I Additional Senior Civil Judge, City Civil Court, Hyderabad. The defendant is the joint owner of the property bearing MCH No.16-7-737, admeasuring 885 square yards. The plaintiffs with a malafide intention to grab the property have filed suit for eviction against tenant vide O.S.No.3840 of 2004 in collusion with tenant and that the defendant filed application to implead him as one of the defendant in the said suit and his mother also filed another application to implead herself in the said suit though there is no cause of action for plaintiffs to file the present suit and that the plaintiffs are not in possession of the suit schedule property at any point of time. Therefore, the question of defendant threatening the plaintiffs does arise and the suit is liable to be dismissed.

5. On the basis of the above pleadings of both the parties, the trial Court framed the following issues for trial:-

i) Whether the plaintiff is entitled to the relief of perpetual injunction as prayed for?

ii) If so to what relief?

6. During the course of trial, plaintiff No.1 herself was examined as PW1 and Exs.A1 to A5 were marked and K.Shivanarayana was examined as PW2 and Exs.A6 to A10 were marked. On behalf of defendant, he himself got examined as DW1 and Exs.B1 to B4 were marked.

7. After full-fledged trial and upon considering the oral and documentary evidence and the contentions of both the parties, the trial Court decreed the suit, with costs.

8. The trial Court categorically observed as hereunder:-

(i) The defendant himself during his cross-examination stated that he has not filed any documents to show that he is in possession of suit schedule property and he also not having any document to show that they are the owners of property admeasuring 400 Sq. yards. The Plaintiffs have filed Exs.A-1 to show that he has purchased