REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No. 3408 OF 2019 (Arising out of S.L.P.(C) No.23575 of 2011)

T. Ramalingeswara Rao (Dead) Thr. LRs. & Anr. ….Appellant(s)

VERSUS

N. Madhava Rao & Ors.               ….Respondent(s)

                 J U D G M E N T

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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3. A  few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellants herein are defendant Nos.1 and

2, respondent Nos.1­3  herein are the plaintiffs and

respondent Nos.5­9 are the defendant Nos.4­8   of

the civil suit out of which this appeal arises.

5. Respondent Nos.1­3 (plaintiffs) filed a civil suit

against the 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 Trial

Court by judgment/decree dated 20.08.2001

dismissed the suit.   Respondent Nos.1­3 (plaintiffs)

felt aggrieved and filed first appeal before the

Additional District & Sessions Judge(Fast Track

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Court), Visakhapatnam.   By judgment dated

07.11.2005, the First Appellate Court dismissed the

appeal and upheld the judgment/decree of the Trial

Court.  

7. The plaintiffs (respondent Nos.1­3) 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 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  a  decree  of  perpetual injunction

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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 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.  

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.

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12. When the two Courts below have recorded

concurrent findings 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.  

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.

14. Coming now to the facts of the case, we find

that the plaintiffs (respondent Nos.1­3) have no case

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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, 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.1­3 (plaintiffs) are the sons of

another co­sharer (brother).

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 co­sharer

is possession of all co­sharers, it cannot be adverse

to them, unless there  is a denial  of their right to

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their  knowledge by the person in possession,  and

exclusion and ouster following thereon for the

statutory period. [See Mohammad Baqar & Ors. vs.

Naim­un­Nisa 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 not proved by

the two Courts below.

19. Defendant Nos.1 and 2 (appellants herein)

being the purchasers of the suit property from one

of the co­sharers stepped into the shoes of their

vendor (co­sharer) and, therefore, had a right to

defend their title and possession against the other

co­sharer.  

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  defendant  Nos.1

and 2 in relation to the suit property. The two

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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 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 Nos.1­3 (Plaintiffs).

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                       

    …...……..................................J.              [DINESH MAHESHWARI]

New Delhi; April 05, 2019

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