JUDGMENT
D.S.R. Varma, J.
1. This appeal is filed against the judgment and decree dated 11-8-1999 passed by the Court of I Additional District Judge, Nalgonda in A.S. No. 26/1995. By the said judgment and decree, the lower appellate Court reversed the judgment and decree dated 27-3-1995 rendered by the Junior Civil Judge, Nalgonda in O.S. No. 1103/1990 and allowed the appeal filed by the respondents-defendants. Aggrieved by the judgment and decree of the lower appellate Court, the original plaintiff filed this second appeal. For the sake of convenience, the parties hereinafter would be referred to as plaintiff and defendants as per their ranking in the trial Court.
2. The plaintiff is the Tax Payers Welfare Association, Nalgonda. The President of the said association in a representative capacity filed the suit. The suit was filed for the relief of perpetual injunction restraining the defendants from occupying the plaint schedule land in an extent of 1,600 Sq. yards in Sy. No. 1255 situated at Shivajinagar, Nalgonda.
3. The plaint pleadings in brief are that it is a registered body under the Societies Registration Act and functioning for the welfare of taxpayers of Nalgonda to protect their interests against the municipality, other body corporates and private individuals who attempt to usurp their rights and interests and also to provide them necessary amenities. As per the Master Plan of the year 1951, the suit schedule property was earmarked for public park and as per the said approved Master Plan, the public is using Sy. No. 1255 as a playground, park etc. While so, on the strength of some fictitious document, attempts were started to occupy about 800 Sq. yards in the said survey number, which was earmarked for playground and park. It is further stated in the plaint that the 1st defendant purchased the suit property which is a public place under the colour of a registered sale deed; that the park and playground are highly essential in a developing town and no construction shall be permitted in violation of the Town Planning Act and hence the plaintiff sought for the relief of perpetual injunction from raising any structures on the suit property.
4. The defendants denied the registration of the society and contended that the President is not entitled to sue or defend that suit on behalf of the Association; that the suit lands are situated in Arjalabavi Gram Panchayat and they were never within the jurisdiction of Nalgonda Municipality; that no Master Plan or layout has been prepared and approved by the Director of Municipal Administration; that no prohibition was levied as per that Master Plan; that Sy. No. 1255 of Pangal village is not within the perview of the so called Master Plan; that the area of 1600 Sq. yards in Sy. No. 1255 was never earmarked in the so-called Master Plan as village playground; that the extent of 847 Sq. yards which was purchased by the defendant No. 1 is not part of said 1600 Sq. yards, and that the permission granted by the Gram Panchayat for the construction is perfectly valid; that the defendant No. 1 has got title to the said 847 Sq. yards in Sy. No. 1255 under a registered sale deed, executed by the original owner and that the land was never acquired by the Government for any park or playground, nor it was used for that purpose; that the defendant No. 1 having purchased the said land, has got valid title and hence she cannot be restrained from making constructions on the said land. The further case of the defendants it that the defendant No. 1 is the wife of the defendant No. 2 and she purchased 847 Sq. yards in Sy. No. 1255 of Pangal Village from the original owners of the land Mohd. Zahid Farooqui, Mohd. Abid Farooqui, Smt. Mohd. Abdul Farooqui, Mujahid Farooqui, Mairajunnisa Begum, Fatimunnisa Begum and Nazimunnisa Begum for a valuable consideration through a registered sale deed dated 11-8-1989 within the specified measurements and upon such purchase, on 5-5-1990 defendant No. 1 obtained permission from the Gram Panchayat for construction.
5. With the above pleadings, Court of first instance, framed the following issues:-
(1) Whether the plaintiff is entitled for perpetual injunction?
(2) To what relief ?
6. The trial Court basing on the evidence or record held that the defendants were not in possession and enjoyment of the plaint schedule property and the plaint schedule property was being used as “park” though there is no park at present. Accordingly the trial Court decreed the suit in favour of the plaintiff.
7. The lower appellate Court while reversing the judgment of the trial Court, framed the following issues:-
(1) Whether the plaintiff’s association is competent to file the suit and the suit as framed is maintainable?
(2) Whether the plaintiff is not entitled for perpetual injunction and the lower Court is not right in granting the relief in favour of the plaintiff?
8. It appears from the evidence, oral and documentary adduced by both the parties that the plaintiff in order to establish that the suit was filed in a representative capacity, relied on Ex.A-1 a resolution passed by the association, which authorizes the President of the association to institute a suit. The plaintiff also relied upon Ex.A-2 layout of the plan in order to show that the suit property was earmarked for park and village playground and that the land to an extent of 847 Sq. Yards which was purchased by defendant No. 1 was without any right.
9. Therefore, now it is necessary to examine whether the plaintiff substantiated his claim on the basis of Ex.A-2. But it was found by the lower appellate Court that the original Master Plan was not filed in order to compare with Ex.A-2. It also appears from the record that no explanation had forthcome from the plaintiff for non-production of the original document, nor any permission was sought from the Court to adduce the secondary evidence for marking the photostat copy of the same as contemplated under Section 65 of the Indian Evidence Act and, therefore, Ex.A-2 is not a complete document and hence cannot relied upon as it is inadmissible. Further at least, nobody was examined from the Municipality to prove the genuineness of Ex.A-2. It is also pointed out by the lower appellate Court that Ex.A-2 does not contain the descriptive particulars i.e., survey number, extent etc. It further appears from the evidence on record that not even single witness who were examined on behalf of the plaintiff could point out the exact portion of Ex.A-2, as the suit schedule property and, therefore, it is not proper for the trial Court to rely on such a document and grant perpetual injunction. In my view the lower appellate Court has rightly considered this aspect and held that Ex.A-2 is a document, which cannot be relied upon in order to establish that the suit property was earmarked for playground or park.
10. It is significant to note that the Town Planning Supervisor who was examined as D.W.3 stated in his evidence that the suit property was not earmarked as park or playground. Further as against Ex.A-2, Ex.X-9, the alleged Master Plan of the municipality approved in the year 1987 was filed and it goes to show that the suit property was not earmarked for any park or playground or for any public purpose. The specific case of the plaintiff is that as per the Master Plan of the year 1951 the suit property was earmarked for playground and public park (i.e., as per Ex.A-2). But Ex.X-9 is a Master Plan of the year 1987 obviously prepared at a later point of time and it prevails over the earlier master plan. As already pointed out earlier, Master Plan of the year 1951 which was marked as Ex.A-2 was an incomplete document and was inadmissible in evidence and hence there is no reason to disbelieve the evidence of D.W.3 and Ex.X-9, which clearly reveals that the suit property was not earmarked for any public park or playground. Therefore, on this score alone, the suit ought to have been dismissed by the trial Court. In fact in the judgment of the trial Court itself, the Junior Civil Judge has made a categorical observation stating that there is no existence of any park or playground as in Ex.X-9. All these aspects have been elaborately considered by the lower Appellate Court with cogent and convincing reasons and, therefore, I do not find any reason to interfere with the same.
11. The lower Appellate Court further discussed about Exs.X-2 to X-8 sale deeds, which were produced on behalf of the plaintiff to prove that the suit property is a park and playground, held that except in Ex.X-2, the other sale deeds produced by the plaintiff do not contain the survey number of the plot and also other descriptive particulars. Even P.W.2, who was examined on behalf of the plaintiff and who spoke on this aspect, did not depose anything with regard to Ex.X-2. The lower appellate Court has considered the effect of other documents particularly in the light of Ex.X-2, which was already referred to above, and had rightly discarded the relevancy of other documents.
12. Ex.B-7 is another letter from the Commissioner of Municipality dated 30-12-1985 to one Zahid Farooqui, one of the vendors of the 1st plaintiff. It shows that as per the Municipal record the disputed land is not covered by any park; that the Municipality had not acquired the said land for any purpose and; that one Rashid Miya is the owner of the Survey Nos. 1254 and 1255 of Pangal village as per the records of the Municipality. This letter goes to support Ex.X-9 Master Plan, which was already referred to above. In fact the defendants made a specific reference with regard to Ex.B-7 letter from the Commissioner of Municipality before the lower appellate Court and the lower appellate Court had rightly appreciated the same.
13. The lower appellate Court while discussing the evidence, pointed out that P.W.1 did not speak about the possession of the property by the public. It has to be noted that the suit is for permanent injunction and, therefore, in view of the nature of the suit, the plaintiffs should establish its possession as on the date of the filing of the suit. Instead, the entire evidence adduced on behalf of the plaintiff, only refers to the aspect whether the suit property is within the limits of Gram Panchayat or Municipality and as to the maintainability of the suit. The established principle is that the question of title may fall for consideration as an incidental issue in a suit for injunction. In such a case both the parties should concentrate on the aspect of possession. But as pointed out by the lower appellate Court, both the parties instead of concentrating on the issue of possession went totally astray all through and tried to establish the title. Further the plaintiff had concentrated on the issue that the defendants had no valid title to the suit property, instead of proving the possession of the plaintiff or the public in whom the plaintiff is interested. Therefore, the very locus standi of the plaintiff to file the suit is a debatable question. However, I am not inclined to go into that aspect, since on the main issue i.e., whether the suit property was private property or public property, the finding was already given on the basis of Ex.X-9 Master Plan of the year 1987.
14. Further it was pointed out by both the Counsels that the defendant No. 1 earlier filed a writ petition before this Court in W.P. No. 8371/1990 and the controversy in the writ petition was with regard to mistake while constituting Arajalabavi as Gram Panchayat in exercise of powers contained under Section 3 of the Gram Panchayat Act. It appears that the said mistake was rectified after some time. As the writ petition filed by the defendant No. 1 was dismissed, she filed an. appeal before this Court in W.A. No. 919/1991. Both in the writ petition as well as in the writ appeal, the subject matter of the land is Sy. No. 1255, which again is the subject matter in this second appeal as well as in the suits. This Court while allowing the writ appeal held that the appellant therein (i.e., defendant No. 1 herein) is entitled to construct over the said land. However the writ appeal was disposed of subsequent to the disposal of the suit. Even the review petition filed for reviewing the writ appeal judgment was also dismissed. Therefore, in view of the disposal of the writ appeal in favour of the defendants, and also in view of cogent and convincing reasons given by the lower appellate Court, I do not find any reason to interfere with the same. In my view the lower appellate Court had considered all the material aspects in detail and rightly allowed the appeal filed by the defendants – appellants. Except the above questions of fact, which were discussed and answered above, I do not find any question of law much less a substantial question of law for interference in this second appeal.
15. For the above reasons, the second appeal is dismissed. No costs.