HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.471 OF 2020
JUDGMENT:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is filed challenging the order dt.14.09.2020 in I.A.No.142 of 2020 in O.S.No.20 of 2020 of the V Additional District Judge, Bhongir.
2. The appellant is the plaintiff in the suit.
Case of the appellant/plaintiff
3. The appellant filed the said suit against the respondents for perpetual injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the appellant over the suit schedule property.
4. It is the case of the appellant in the suit that he is the absolute owner and possessor of agricultural land admeasuring Ac.3.31 gts., in Sy.No.104/E, Ac.2.21 gts., in Sy.No.105/E, Ac.0.04 gts., in Sy.No.106/E and Ac.2.17 grs., in Sy.No.125/E totaling Ac.8.24 gts., at Parupally Village, Rajapet Mandal, Yadadri-Bhongir District. According to him, he obtained these properties towards his share in the oral family partition between himself and his brothers. This took place long time ago. He claimed that he is in peaceful possession and enjoyment of the same ever since the said oral partition.
5. The appellant contended that the 1st respondent approached him to purchase the above extent of land and so the appellant executed an 2 Agreement of Sale Ex.P1 dt.02.07.2016 in favour of the respondents after receiving Rs.5,00,000/- as advance with a specific condition that the respondents should pay the balance sale consideration of Rs.25,00,000/- within six months from the date of the Agreement of Sale. He alleged that the respondents did not choose to perform their part of the contract and that they had committed breach of the contract and it became unenforceable.
6. The appellant also contended that he advanced a hand loan of Rs.20,00,000/- to the 1st respondent and his wife on 02.12.2017 to help them to meet certain financial commitments as they had promised to repay it within three months; that the 1st respondent's wife executed a promissory note in favour of the appellant and issued a cheque on 20.05.2019 to discharge it, but the cheque was dishonoured.
7. The appellant alleged that he then got a legal notice dt.22.05.2019 issued to the respondents about the cancellation of Ex.P1 Agreement of Sale and also issued a statutory notice to the 1st respondent under Section 138 of the Negotiable Instruments Act asking her to pay the amount covered by the cheque. According to him, both notices were served on the respondents, but they sent reply notices on 31.05.2019 and 07.06.2019 showing wrong address of the appellant's advocate.
8. He alleged that the respondents had filed O.S.No.108 of 2019 for specific performance of the Agreement of Sale dt.02.07.2016 wrongly alleging that possession of the suit schedule property was delivered to them after one month of the Agreement of Sale for the purpose of development, that they had leveled the land and removed bushes and 3 boulders and fenced the same with barbed wire and stone pillars and they had laid approach road to the suit schedule property by purchasing land from third parties and claiming that they are in possession of the suit schedule property.
9. The appellant contended that mutation was made in the pahani on 25.06.2019 illegally by Tahsildar, Rajapet Mandal of the names of the respondents, which was challenged before the Revenue Divisional Officer, but he dismissed it on 03.09.2019 and the appellant had filed a Revision petition before the Joint Collector, Yadadri-Bhongir District and it is pending.
10. The appellant contended that the respondents obtained interim injunction on 01.07.2019 in I.A.No.682 of 2019 in O.S.No.108 of 2019 to restrain the appellant from alienating the suit schedule property to third parties; that they came to the land on 10.07.2019 and tried to trespass into it; and they were prevented by the appellant with the help of his relatives.
11. He further contended that on 18.07.2019 again the respondents came to the suit schedule property with anti-social elements and assaulted him, and he lodged a complaint with police station Rajapet, but the Station House Officer refused to register the complaint stating that the matter is of civil nature.
12. The appellant contended that though he is a resident of Hyderabad, he is having the suit schedule property cultivated through J. Narasimha Reddy on yield sharing basis and since there is threat of dispossession, he filed the suit for perpetual injunction restraining the 4 respondents from interfering with his peaceful possession and enjoyment of the suit schedule property.
I.A.No.142 of 2020
13. The appellant also filed I.A.No.142 of 2020 in the said suit reiterating the contents of the plaint and seeking, under Order XXXIX Rules 1 and 2 CPC, an ex parte ad interim temporary injunction against the respondents to restrain them from interfering with his peaceful possession and enjoyment of the suit schedule property pending disposal of the suit. He asserted therein that he is in possession and enjoyment of the suit schedule property.
Stand of respondents in I.A.No.142 of 2020
14. The respondents filed counter affidavit opposing grant of interim relief to the appellant.
15. They contended that they are in actual possession of the suit schedule property as agreement holders having purchased the same from the appellant under the Agreement of Sale for valid consideration and stating that on 02.07.2016 they also paid advance sale consideration. They contended that the appellant handed over physical possession of the suit schedule property to the respondents orally for the purpose of development and that they have raised dry crops therein. They also stated that their names have been mutated in the pahani showing that they are in possession of the suit schedule property.
16. They alleged that within the stipulated period they approached the appellant and demanded him to receive the balance sale consideration 5 amount and to execute regular registered sale deed in their favour in respect of the suit schedule property as per the Agreement of Sale, but the appellant did not do so.
17. They alleged that due to escalation of land prices in the vicinity of the suit schedule property, and seeing the developments made by the respondents, the appellant did not come forward to perform his part of the agreement as per the Agreement, and so they filed O.S.No.108 of 2019 for specific performance and obtained injunction orders on 06.09.2019 in I.A.No.682 of 2019 therein restraining the appellant from alienating the suit schedule property to third parties.
18. They disputed the case of the appellant that he is in possession of the suit schedule property.
19. The 1st respondent also denied that the appellant advanced hand loan of Rs.20,00,000/- to his wife on 02.12.2017 and that his wife had executed a promissory noted in favour of the appellant. He also denied that his wife had issued a cheque on 20.05.2019 to the appellant and it was dishonoured.
20. They alleged that they had got issued Ex.P8 legal notice dt.10.05.2019 calling upon the appellant to come forward for execution of the registered sale deed and the notice was dispatched on 11.05.2019 to the address of the appellant and after coming to know about the same, the appellant got returned the notice and got issued a false legal notice on 22.05.2019.
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21. In I.A.No.142 of 2020, the appellant filed Exs.P1 to P15 and the respondents filed Exs.R1 to R6.
The order dt.14.9.2020 in IA No.142 of 2020
22. By order dt.14.09.2020, the Court below dismissed I.A.No.142 of 2020.
23. The Court below noted the respective contentions of the parties, and the admitted fact about the execution of the written Agreement of Sale dt.02.07.2016 between the appellant and the respondents and in particular the recital therein that the appellant declared that in future the respondents would be absolute owners thereof and neither the appellant nor his legal heirs would have any right over the said property.
24. It then noted that the point to be considered is only with respect to the possession of the suit schedule property.
25. It also noted that the land appears to be open land in view of the photographs filed by both parties, but the respondents are shown in the possessory column of the suit schedule property as per the Village pahani Ex.P5 dt.25.06.2016, and as per Ex.P7 order dt.10.05.2019 in Appeal No.D/1458/2019 and also Exs.R2 to R6 issued on 17.08.2020.
26. The Court below then considered the plea of the appellant that the revenue records were brought into existence by respondents taking help of the revenue authorities and that the said entries have no value, but rejected the same on the ground that even Ex.P7 order of the Revenue Divisional Officer indicates that only after a factual ground check, a finding was given that the respondents are in possession of the property. 7 It therefore disbelieved the plea of the appellant that he is in possession of the suit schedule property.
27. It therefore held that balance of convenience is not in favour of the appellant and denial of interim injunction would not cause loss to him and it would cause loss to the respondents.
The present Appeal
28. Challenging the same, this Appeal is filed.
29. Learned counsel for the appellant contended that the Court below had erred in dismissing I.A.No.142 of 2020 filed by the appellant for temporary injunction restraining the respondents from interfering with his alleged peaceful possession over the suit schedule property till the disposal of the suit; that under Ex.P1 Agreement of Sale dt.02.07.2016 there is no mention of delivery of possession; that the said Ex.P1 Agreement does not create any right, title or interest in the suit schedule property; that the respondents had committed breach of contract by not paying the balance sale consideration; that the respondents could not have got their names mutated as possessors in revenue records and such entry in revenue records had no probative value; and on the basis of such mutation entries in revenue records, the respondents cannot be said to be in possession of the suit schedule property.
Consideration by the Court
30. Since the appellant is seeking temporary injunction against the respondents contending that he is in possession of the suit schedule property, the burden is on the appellant to first establish that he 8 continues to be in possession of the suit schedule property. Such possession in respect of agricultural land is normally reflected in the Village pahanies.
31. Even according to the appellant, the column dealing with possession in Village pahani dt.25.06.2019 in respect of the subject property shows the names of the respondents and not the name of the appellant.
32. This was challenged by the appellant before the Revenue Divisional Officer, Bhongir in Appeal Case No.D/1458/2019 under Section 5(5) of the A.P. Record of Rights in Land and Pattadar Passbooks Act, 1971. The RDO by order dt.03.09.2016 (Ex.P7) observed that there is a civil dispute to be adjudicated by competent Civil Court and directed the appellant to seek remedy in civil Court.
33. The learned counsel for the appellant however contended that the Mandal Revenue Officer and the Revenue Divisional Officer ought not to have passed such orders, and such orders are not legally valid as per the provisions of the A.P. Record of Rights in Land and Pattadar Passbooks Act, 1971.
34. But we cannot go into the said issue in this Civil Miscellaneous Appeal because the appellant has a remedy of revision under Section 9 of the said Act, which was already availed by him before the Joint Collector, Yadadri-Bhuvanagiri District and it is pending.
35. Also, the respondents had already filed O.S.No.108 of 2019 seeking specific performance against the appellant and in the said suit, 9 they had filed I.A.No.682 of 2019 to restrain the appellant from alienating, encumbering or mortgaging the suit schedule property specifically pleading that they are in possession thereof; and on 06.09.2019, there was a temporary injunction granted in favour of the respondents and against the appellants in I.A.No.682 of 2019.
36. The instant suit has been filed on 06.07.2020, long after the respondents obtained the interim injunction orders on 06.09.2019 in IA No.682 of 2019 in OS No. 108 of 2019.
37. On the pretext that there is no mention of delivery of possession in Ex.P1 Agreement of Sale, it is not open to the appellant to contend that he continued to be in possession particularly when such alleged possession is not supported by revenue records such as pahanies.
38. In this view of the matter, we are of the opinion that the Court below did not commit any error in refusing to grant temporary injunction in favour of the appellant in I.A.No.142 of 2020.
39. Accordingly, the Appeal fails and is dismissed. No costs.
40. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 28-04-2021 Svv