JUDGMENT
P.S. Narayana, J.
1. The legal representatives of one P. Rajak Sab, the plaintiff in O.S.No. 76/85 on the file of Principal District Munsif, Adoni are the present appellants in the Second Appeal. The said Rajak Sab instituted the said suit for the relief of permanent injunction against the defendants relating to the land of an extent of Acs.7-55 cents in S.No. 444/D, within the village limits of Mandigiri, Sub-Registration District of Adoni and Registration District of Kurnool. The defendants filed written statements and Issues were settled. Before the Court of first instance, on behalf of the plaintiff, P.W.l to P.W.5 were examined and Bxs.A-1 to A-5 were marked and on behalf of the defendants D.W.1 to D.W.5 were examined and Exs.B-1 to B-11 were marked and apart from the aforesaid documentary evidence, Exs.X-1 to X-11 were marked as third party series. The learned Principal District Munsif, Adoni after answering all the Issues came to the conclusion that defendants 6 to 9 are the owners of an extent of Acs.3-87 cents in S.No. 444/D whereas the plaintiff is the owner of an extent of Acs.3-38 cents only in the same survey number and this fact had been well established by the defendants by way of various documents and since the plaintiff is claiming injunction to an extent of Acs.7-55 cents including the share of the defendants which is dishonest, the relief was negatived. Aggrieved by the said judgment and decree, the said Rajak Sab filed A.S.No. 18/89 on the file of Subordinate Judge, Adoni and the learned Subordinate Judge also had arrived at the conclusion that unless the plaintiff proves his title and possession over the entire plaint schedule property no injunction can be granted to the plaintiff and the appellate Court also had agreed with the finding of the trial Court that defendants 6 to 9 are the owners of an extent of Acs.3-87 cents in S.No. 444/D, whereas the plaintiff is the owner of an extent of Acs.3-38 cents in the said survey number. However, ultimately the appellate Court also had taken the view that since the plaintiff failed to establish his title and possession over the entire extent of the plaint schedule land, he is not entitled to any relief and ultimately dismissed the Appeal without costs. Aggrieved by the same, the said Rajak Sab filed the present Second Appeal and pending the Second Appeal he died and hence the legal representatives were brought on record in C.M.P. No. 2891/2000 and thus at present the legal representatives of the original plaintiff Rajak Sab are prosecuting the present Second Appeal.
2. Sri Srinivas, the learned counsel representing the appellants had taken me through the concurrent findings recorded by both the Courts below to the effect that Rajak Sab is the owner of an extent of Acs.3-38 cents in S.No. 444/D and he is entitled to the said extent. The learned counsel with all emphasis had contended that the Courts below definitely have totally erred in negativing the relief to the extent to which the plaintiff is entitled to merely on the ground that the plaintiff prayed for the relief for a larger extent. The learned Counsel also had drawn my attention to Ex.B-11 and had pointed out that even as per the specific stand taken by the contesting defendants that there was already partition, the question of co-ownership will not arise and dismissal of the suit on the ground that the contesting defendants are co-owners along with the plaintiff in view of the genealogy cannot be sustained since it is definitely contrary to the stand taken by the contesting defendants themselves. The learned counsel in all fairness had submitted that this is the only substantial question of law which arises for consideration in the present Second Appeal.
3. Countering the submissions made by the learned Counsel for the appellants, Sri Lakshminarayana Reddy, the learned counsel representing the respondents had drawn my attention to the findings recorded by both the Courts below and also had taken me through the oral and documentary evidence. The counsel also had pointed out that the very stand taken in the written statement is that the plaintiff is entitled to an extent of Acs.3-38 cents within the specified boundaries. No doubt, both Courts below had recorded the findings to the effect that the plaintiff is entitled to an extent of Acs.3-38 cents. In all fairness, the learned counsel submitted that since the defendants themselves had produced the documentary evidence to establish this fact, the Courts had recorded such a finding. But however, the learned counsel would maintain that since the relief prayed for is the grant of permanent injunction which is an equitable relief, the party who had not approached the Court with clean hands is not entitled to such relief since under the guise of this litigation, the plaintiff had planned to have undue advantage for a larger extent and hence since the claim is not a bona fide one, the refusal of the relief of permanent injunction in the facts and circumstances of the case, definitely is well justified.
4. Heard the counsel and perused the findings recorded by the Court of first instance and also the appellate Court and the oral and documentary evidence available on record.
5. In view of the short question involved in the present Second Appeal, the factual aspects need not be dealt with in detail. It is suffice to state that the plaintiff instituted the suit claiming ownership of land of an extent of Acs.7-55 cents in S.No. 444/D in Mandigiri village of Adoni Taluq. In the written statement itself, the defendants had given the genealogy showing the relationship between the plaintiff and defendants 5 to 9 and had explained that the total extent of S.No. 444/D of Mandigiri village is an extent of Acs. 15-25 cents and the details had been given how this was shared by the three families. It was also specifically pleaded that there was partition on 3-5-1971 and since then the parties have been in exclusive possession and enjoyment of their respective shares. The defendants no doubt had pleaded about certain sales also. When the contesting defendants had taken a specific stand that the plaintiff is entitled to an extent of Acs.3-38 cents within specified boundaries in S.No. 444/D whether the Courts are justified in negativing the relief of permanent injunction even to that extent on the ground that the claim is not bona fide or on the ground of co-ownership. This is the only substantial question which needs to be answered in the present Second Appeal. On appreciation of the evidence of P.W.1 to P.W.5, D.W.1 to D.W.5 and also Ex.A-1 to A-5 and Exs.B-1 to B-11 and Exs.X-1 to X-11 it had been recorded that the plaintiff is the owner of an extent of Acs.3-38 cents in S.No. 444/D and this finding had been recorded by both the Courts below especially in the light of voluminous documentary evidence placed by the contesting defendants and also in the light of the admission made by them in the pleadings itself and the oral evidence let in by the said parties. It is no doubt true that the plaintiff had claimed the relief for a larger extent, but ultimately the Courts below, taking into consideration the over all evidence available on record, had recorded a finding that the plaintiff is entitled to an extent of Acs.3-38 cents only, no doubt in the specified boundaries as pleaded in the written statement and the specific boundaries are mentioned hereunder:
East: Anjinayya’s land
West: Ahmed Sab’s land (father of
defendants 6 to 9)
North: Manikya Reddy’s land
(successors in title of
S. Fakruddin Sab)
South: Land of Ali Sab
6. Section 38 of the Specific Relief Act, 1963 deals with the aspect of Perpetual injunction when granted and the provision reads as hereunder:
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely:–
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) Where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
The words “……perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication…….” in Sub-section (1) assume importance. When the contesting defendants themselves had taken a specific stand in the pleadings and also in the evidence that the plaintiff is entitled to only a specific extent of Acs.3-38 cents in S.No. 444/D, I am of the considered opinion that there is an obligation on their part not to interfere or not to disturb the possession of the plaintiff so far as the said extent within the specified boundaries referred to supra is concerned. It is no doubt true that the plaintiff claimed right over a larger extent of land, but he was unsuccessful in proving the same. It is also no doubt true that it cannot be said that the plaintiff bona fide made the claim. But merely on such a ground, the relief of permanent injunction being an equitable relief, the same cannot be refused when there is clear admission made by the contesting defendants in this regard. In my considered opinion, equitable ground and refusal of the relief on such a ground cannot be stretched too far so as to defeat the proprietary rights if otherwise they are established by the parties. Hence, in view of the clear language employed in Sub-section (1) of Section 38 of the Specific Relief Act, 1963 so far as it relates to an extent of Acs.3-38 cents in S.No. 444/D as referred to supra is concerned, the present legal representatives who are prosecuting the Second Appeal definitely are entitled to the relief of permanent injunction. But however, in the peculiar facts and circumstances, since the defendant at no point of time had objected to the possession and enjoyment of the plaintiff to the said extent of land, though the Second Appeal is being partly allowed to the extent indicated above, there shall be no order as to costs. In the light of the same, the Second Appeal is allowed granting the relief of permanent injunction in fvour of the appellants to an extent of Acs.3-38 cents within the specified boundaries referred to supra in S.No. 444/D, within the village limits of Mandigiri, Sub-Registration District of Adoni and Registration District of Kurnool.
7. The Second Appeal is allowed to the extent indicated above. No order as to costs.