RAMALINGESWARA RAO (DEAD) THR. LRS. & ANR.versusN. MADHAVA RAO & ORS.

472                      [2019]REPORTS
               SUPREME COURT    6 S.C.R. 472                [2019] 6 S.C.R.


A        T. RAMALINGESWARA RAO (DEAD) THR. LRS. & ANR.
                                        v.
                         N. MADHAVA RAO & ORS.
                         (Civil Appeal No. 3408 of 2019)
B                                APRIL 05, 2019
                     [ABHAY MANOHAR SAPRE AND
                       DINESH MAHESHWARI, JJ.]
            Appeal: Second appeal – Concurrent findings of facts by
      courts below – Interference by the High Court – Justification of –
C
      Held: Trial court and the first appellate court on appreciating the
      evidence of the parties came to a conclusion that the plaintiffs failed
      to prove the ingredients necessary for the grant of perpetual
      injunction – When the courts below have recorded concurrent
      findings of fact against the plaintiffs, based on appreciation of facts
D     and evidence, such findings are binding on the High Court – It is
      only when such findings are found to be against any provision of
      law or against the pleading or evidence or are found to be wholly
      perverse, the High Court may interfere in its second appellate
      jurisdiction – Thus, the High Court erred in interfering in the
      concurrent findings of facts of the courts below.
E
            Injunction: Perpetual injunction – Claim of – On facts,
      appellants purchased suit land from one of the co-sharers –
      Respondent no. 1-3, sons of another co-sharer, filed suit against
      appellants seeking perpetual injunction, rejected by the trial court
      and first appellate court, however, allowed by the High Court – On
F
      appeal, held: Possession of one co-sharer is possession of all co-
      sharers, it cannot be adverse to them, unless there is a denial of
      their right to their knowledge by the person in possession, and
      exclusion and ouster following thereon for the statutory period –
      Respondents have no case for grant of perpetual injunction – Even
G     assuming that the respondents claimed to be in possession of the
      suit property for claiming injunction, yet they were not entitled to
      claim injunction against the other co-sharers over the suit property
      – Appellants being the purchasers of the suit property from one of
      the co-sharers stepped into the shoes of their co-sharer, thus, had a
H
                                       472
      T. RAMALINGESWARA RAO (DEAD) THR. LRS v.                            473
               N. MADHAVA RAO & ORS.

right to defend their title and possession against the other co-sharer    A
– High Court erred in interfering in the concurrent findings of the
fact without recording a finding as to why the concurrent findings
of fact are bad in law and why it requires interference – Order
passed by the High Court is set aside and that of the trial court and
first appellate is restored.
                                                                          B
      Allowing the appeal, the Court
      HELD: 1.1 The High Court erred in interfering in the
concurrent findings of facts of the two Courts below, which
dismissed the plaintiffs’ suit. The trial court and the first appellate
court on appreciating the evidence of the parties had rightly come        C
to a conclusion that the plaintiffs failed to prove the ingredients
necessary for the grant of perpetual injunction. [Paras 10, 11]
[476-H; 477-A]
      1.2 When the two courts below have recorded concurrent
findings of fact against the plaintiffs, which are based on               D
appreciation of facts and evidence, such findings being concurrent
in nature are binding on the High Court. It is only when such
findings are found to be against any provision of law or against
the pleading or evidence or are found to be wholly perverse, a
case for interference may call for by the High Court in its second
appellate jurisdiction. Such was not the case made out in the High        E
Court. It is for this reason, the High Court should not have
interfered in the findings of the two courts below and instead, the
findings should have been upheld by the High Court.
[Paras 12, 13][476-B-D]
       2.1 The plaintiffs-respondent Nos.1-3 have no case much            F
less prima facie for grant of perpetual injunction. Even assuming
that the plaintiffs claimed to be in possession of the suit property
(which the two courts below did not find in their favour) for
claiming injunction, yet they were not entitled to claim injunction
against the other co-sharers over the suit property. The                  G
possession of one co-sharer is possession of all co-sharers, it
cannot be adverse to them, unless there is a denial of their right
to their knowledge by the person in possession, and exclusion
and ouster following thereon for the statutory period. Defendant
Nos. 1 and 2-appellants being the purchasers of the suit property
                                                                          H
474            SUPREME COURT REPORTS                         [2019] 6 S.C.R.


A     from one of the co-sharers stepped into the shoes of their vendor
      (co-sharer) and, therefore, had a right to defend their title and
      possession against the other co-sharer. [Para 14, 17 and 19]
      [476-D; F-G; 477-A]
            2.2 The plaintiffs had no case to claim injunction against
B     defendant Nos.1 and 2 in relation to the suit property. The two
      courts below, therefore, rightly declined it and the same is
      affirmed. [Para 20][477-B]
            2.3 The High Court failed to appreciate the factual and legal
      controversy in its proper perspective and, therefore, erred in
      interfering in the concurrent findings of the fact without recording
C
      a finding as to why the concurrent findings of fact are bad in law
      and why it requires interference in its second appellate
      jurisdiction. The impugned order is set aside and the judgment/
      decree of the trial court/first appellate which dismissed the suit
      filed by respondent no. 1-3 is restored. [Para 21, 22][477-C-D]
D           Mohammad Baqar & Ors. v. Naim-un-Nisa Bibi & Ors.
            AIR 1956 SC 548 – referred to.
                              Case Law Reference
            AIR 1956 SC 548              relied on            Para 17

E           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3408
      OF 2019
            From the Judgment and Order dated 23.11.2010 of the High Court
      of Andhra Pradesh at Hyderabad in S.A. No. 1036 of 2006.
            M. Rajesh, Byrapaneni Suyodhan, Ms. Tatini Basu, Advs. for the
F     appellants.
            K. Maruthi Rao, Ms. K. Radha, Mrs. Anjani Aiyagari, Aniruddha
      P. Mayee, K.Subba Rao, Ms. K. V. Bharathi Upadhyaya, Advs. for the
      respondents.
            The Judgment of the Court was delivered by
G
            ABHAY MANOHAR SAPRE, J. 1. Leave granted.
            2. This appeal is filed against the final judgment and order dated
      23.11.2010 passed by the High Court of Judicature, Andhra Pradesh at
      Hyderabad in Second Appeal No.1036 of 2006 whereby the High Court
      allowed the second appeal filed by respondent Nos.1 to 3 herein.
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     T. RAMALINGESWARA RAO (DEAD) THR. LRS v.                                 475
 N. MADHAVA RAO & ORS. [ABHAY MANOHAR SAPRE, J.]

      3. A few facts need mention hereinbelow for the disposal of this        A
appeal, which involves a short point.
      4. The appellants herein are defendant Nos.1 and 2, respondent
Nos.1-3 herein are the plaintiffs and respondent Nos.5-9 are the
defendant Nos.4-8 of the civil suit out of which this appeal arises.
      5. Respondent Nos.1-3 (plaintiffs) filed a civil suit against the       B
appellants (defendant Nos.1 and 2) and respondent Nos.5 to 9 (defendant
Nos.4 to 8) seeking perpetual injunction against the defendants restraining
them from interfering in his peaceful possession over the suit properties.
      6. The appellants (defendant Nos.1 and 2) contested the suit
whereas the remaining defendants (4 to 8) remained ex parte. The              C
Trial Court by judgment/decree dated 20.08.2001 dismissed the suit.
Respondent Nos.1-3 (plaintiffs) felt aggrieved and filed first appeal
before the Additional District & Sessions Judge(Fast Track Court),
Visakhapatnam. By judgment dated 07.11.2005, the First Appellate Court
dismissed the appeal and upheld the judgment/decree of the Trial Court.       D
       7. The plaintiffs (respondent Nos.1-3) felt aggrieved and filed
second appeal in the High Court of Andhra Pradesh. By impugned order,
the High Court allowed the appeal, set aside the judgment impugned
therein and decreed the plaintiffs’ suit by passing a decree for perpetual
injunction against the defendants in relation to the suit property, which     E
has given rise to filing of the present appeal by way of special leave in
this Court by defendant Nos.1 and 2.
       8. So, the short question, which arises for consideration in this
appeal, is whether the High Court was justified in allowing the plaintiffs’
second appeal and thereby was justified in decreeing their suit by granting   F
a decree of perpetual injunction against defendant Nos.1 and 2 in relation
to the suit property.
       9. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are constrained to allow the appeal and
while setting aside the impugned order restore the judgment/decree of
                                                                              G
the First Appellate Court and the Trial Court which resulted in dismissal
of the plaintiffs’ suit.
      10. In our considered opinion, the High Court erred in interfering
in the concurrent findings of facts of the two Courts below, which
dismissed the plaintiffs’ suit.
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476             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A            11. In our view, the Trial Court and the First Appellate Court on
      appreciating the evidence of the parties had rightly come to a conclusion
      that the plaintiffs failed to prove the ingredients necessary for the grant
      of perpetual injunction.
             12. When the two Courts below have recorded concurrent findings
B     of fact against the plaintiffs, which are based on appreciation of facts
      and evidence, in our view, such findings being concurrent in nature are
      binding on the High Court. It is only when such findings are found to be
      against any provision of law or against the pleading or evidence or are
      found to be wholly perverse, a case for interference may call for by the
      High Court in its second appellate jurisdiction.
C
             13. Such was not the case made out in the High Court. It is for
      this reason, we are of the view that the High Court should not have
      interfered in the findings of the two Courts below and instead, the findings
      should have been upheld by the High Court.
D           14. Coming now to the facts of the case, we find that the plaintiffs
      (respondent Nos.1-3) have no case much less prima facie for grant of
      perpetual injunction.
            15. The suit property is a part of big chunk of land owned by
      several brothers who inherited the same after the death of their father,
E     namely, Poornayya.
             16. The appellants (defendant Nos.1 and 2) are the purchasers of
      the suit land from one of the co-sharers (one of the brothers) by a
      registered sale deed. Respondent Nos.1-3 (plaintiffs) are the sons of
      another co-sharer (brother).
F             17. In our view, even assuming that the plaintiffs claimed to be in
      possession of the suit property (which the two Courts below did not find
      in their favour) for claiming injunction, yet they were not entitled to claim
      injunction against the other co-sharers over the suit property. It is a
      settled principle of law that the possession of one co-sharer is possession
      of all co-sharers, it cannot be adverse to them, unless there is a denial of
G
      their right to their knowledge by the person in possession, and exclusion
      and ouster following thereon for the statutory period. [See Mohammad
      Baqar & Ors. vs. Naim-un-Nisa Bibi & Ors.(AIR 1956 SC 548)]
            18. So far as the claim of the plaintiffs as being in exclusive
      possession to the exclusion of others was concerned, the same was held
H     not proved by the two Courts below.
     T. RAMALINGESWARA RAO (DEAD) THR. LRS v.                                  477
 N. MADHAVA RAO & ORS. [ABHAY MANOHAR SAPRE, J.]

       19. Defendant Nos.1 and 2 (appellants herein) being the purchasers      A
of the suit property from one of the co-sharers stepped into the shoes of
their vendor (co-sharer) and, therefore, had a right to defend their title
and possession against the other co-sharer.
       20. In the light of the aforesaid admitted position arising in the
case, in our view, the plaintiffs had no case to claim injunction against      B
defendant Nos.1 and 2 in relation to the suit property. The two Courts
below, therefore, rightly declined it and we affirm the same.
       21. As noted above, the High Court failed to appreciate the factual
and legal controversy in its proper perspective and, therefore, erred in
interfering in the concurrent findings of the fact without recording a         C
finding as to why the concurrent findings of fact are bad in law and why
it requires interference in its second appellate jurisdiction.
       22. In view of the foregoing discussion, we allow the appeal, set
aside the impugned order and restore the judgment/decree of the Trial
Court/First Appellate Court which dismissed the suit filed by respondent       D
Nos.1-3 (Plaintiffs).


Nidhi Jain                                                   Appeal allowed.


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