HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Civil Miscellaneous Appeal No.314 of 2021
JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This Civil Miscellaneous Appeal is preferred against the order
dt.01.06.2021 in I.A.No.59 of 2021 in O.S.No.13 of 2021 on the file
of the XVI Additional District and Sessions Judge, Ranga Reddy
District at Malkajgiri.
2. The appellants are defendant nos.5, 11, 12, 13 in the said suit.
3. Respondent nos.1 to 6 in this Civil Miscellaneous Appeal are
plaintiffs in the suit.
4. The other defendant nos.1 to 4, 6 to 10 are respondent nos.7 to 15 in the Appeal; and the appellants have shown them as 'not necessary parties'.
5. There are A, B and C schedule properties mentioned in the plaint by the plaintiffs.
6. The parties will be referred to as per their array in the suit.
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The background facts :
7. It is not in dispute that plaintiff nos.1 to 5 are residents of United States of America.
8. Sri Krish Srinivasan, the husband of 1st plaintiff and father of plaintiff nos.2 and 3 purchased Acs.0.05 gts. in Sy.No.150 of Yapral Village under exhibit Ex.P.1 Sale Deed dt.08.03.1996, and Acs.1.27 gts. in Sy.No.150 and Acs.2.32 gts. in Sy.No.137 of Yapral Village under Ex.P.2 Sale Deed dt.18.09.1996.
9. Sri T.R. Srinivasan, the father of the 4th plaintiff purchased Acs.5.00 of land in Sy.No.150 of Yapral Village under Ex.P.3 dt.08.03.1996.
10. The 5th plaintiff purchased Acs.1.15 gts. in Sy.No.140 of Yapral Village under Ex.P.4 dt.18.09.1996.
11. The plaintiffs approached the Hyderabad Urban Development Authority and got a final approval of layout on 20.03.2003 for an extent of Acs.10.39 gts. and they became joint owners.
12. Krish Srinivasan died on 08.11.1996, and under a Will dt.03.10.1996 the plaintiff nos.1 to 3 inherited his property.
13. T.R. Srinivasan died on 20.10.2000 and under a Will dt.20.01.1997, the 4th plaintiff and his mother Janaki Srinivasan succeeded to his property. She executed Ex.P.5 gift Deed ::3:: MSR,J & TVK,J cma_314_2021 dt.08.11.2016 in favour of 4th plaintiff gifting him her share in the property of Late T.R. Srinivasan.
14. The 1st defendant claims that Late T.R. Srinivasan and others allegedly executed 11 unregistered sale deeds dt.21.04.2000 involving the 'A' to 'C' schedule properties and a 12th unregistered sale deed over plot No.91 on 23.04.2000 and got them all validated on 21.08.2007 by paying the deficit stamp duty before the District Registrar, Ranga Reddy District.
15. This is disputed by the plaintiffs who allege that at the said point of time they were not in India, and Late T.R. Srinivasan and others did not execute these sale deeds.
16. It is not in dispute that the 1st defendant filed O.S.Nos.1266, 1233, 1273, 1290, 1129, 1128, 1130, 1144, 1085, 1267 and 1289 of 2008 for specific performance of the 11 unregistered sale deeds and all these suits were dismissed between April, 2010 and December, 2015.
17. Before the dismissal of the above suits, the 1st defendant had executed Agreement - cum - General Power of Attorney / Sale Deeds in favour of defendant nos.2 to 11 under Exs.P.16 to P.28 between 2018-2020 mentioning therein that he has delivered possession of the respective plots to the said defendants.
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18. The plaintiff nos.1 to 5 had also obtained construction permissions on 29.11.2020 for making construction in the 'A' to 'C' schedule properties.
19. The plaintiff nos.1 to 5 executed Exs.P.34 to P.36 Development Agreement - cum - GPA in favour of 6th plaintiff on 05.01.2021 which were registered on 22.01.2021 appointing the 6th plaintiff as their agent and allowing him to develop the suit schedule property by constructing commercial / residential buildings / apartments / flats on mutual sharing basis.
20. Contending that on 12.12.2020 when 6th plaintiff (representing plaintiff nos.1 to 5) had visited the suit schedule property to measure and the same, representatives of the defendants falsely claiming to be the owners on the basis of Exs.P.15 to P.28 documents resisted the activity of the representatives of the 6th plaintiff, the 6th plaintiff filed an application i.e., a Receive and Transmit petition No.5 / 2021 in the Vacation Court of the High Court in January, 2021 to receive the suit and transmit it to the appropriate Court purportedly on behalf of other plaintiffs.
21. It was prayed in the suit to :
(a) declare that the plaintiff nos.1 to 5 are joint absolute owners and possessors of the suit schedule property;
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(b) to declare Exs.P.15 to P.28 - Sale Deeds / AGPAs executed by 1st defendant in favour of defendant nos.2 to 11 as null and void, and not binding on the plaintiffs; and
(c) to grant a perpetual injunction restraining the defendants from interfering with the alleged lawful possession of the plaintiffs over the suit schedule property.
The events after the filing of the suit
22. A Vacation Judge of this High Court allowed the Receive and Transmit Petition No.5 of 2021 and while doing so , he also granted an ex parte ad interim injunction in favour of plaintiffs I.A.No.1 of 2021 in Receive and Transmit Petition No.5 of 2021.
23. This was challenged in C.M.A.No.90 of 2021 before this Court.
24. On 22.02.2021 in I.A.No.1 of 2021 in C.M.A.No.90 of 2021, the said order dt.12.01.2021 in I.A.No.1 of 2021 was suspended.
25. This order was questioned in S.L.P.No. 3825 of 2021 by the plaintiffs and the Supreme Court on 08.03.2021 stayed the order of this Court for six (06) weeks and directed this Court to decide the CMA on merits within four (04) weeks.
26. Thereafter, the CMA was allowed on 17.04.2021 by this Court on the ground that in the order dt.12.01.2021 in I.A.No.1 of 2021 in RTP.No.5 of 2021, the learned Single Judge did not follow proviso to ::6:: MSR,J & TVK,J cma_314_2021 Order 39 Rule 3 C.P.C., which is mandatory , while granting the exparte ad-interim injunction i.e he did not give reasons for granting the said ex parte ad interim injunction in favour of the plaintiffs and remanded the matter to the Trial Court for fresh adjudication of the interim injunction application [which had been numbered by the Court below as I.A.No.59 of 2021].
27. This order was questioned by the plaintiffs in S.L.P.No.6162 of 2021. On 19.04.2021, the Supreme Court passed an order of status quo till the Trial Court decides the I.A.No.59 of 2021.
28. Thereafter, on 25.05.2021, the Supreme Court directed that till the order is passed by the Trial Court, status quo shall be maintained by the parties.
29. Subsequently, on 01.06.2021, the Trial Court allowed I.A.No.59 of 2021 by a fresh order, which is impugned in this C.M.A.
30. Thereafter, on 01.07.2021, the SLP was dismissed as infructuous.
31. We have heard Sri K. Mohan, counsel for appellants / defendant nos.5, 11, 12, and 13, Sri M. Surender Rao, learned Senior Counsel for Sri Ch. A. B. Satyanarayana, for plaintiff nos.1 to 5, and Sri K.S. Murthy, counsel for 6th plaintiff.
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The consideration by the Court.
32. Though plaintiff nos.1 to 5 are residents of United States of America even as on the date of filing of the suit, they claim to be in possession of the property invoking the principle that since they have title, they are presumed to be in possession of the suit schedule property.
33. On the contrary, the defendants have claimed that there were twelve unregistered sale deeds dt.21.04.2000 and 23.04.2000 executed in favour of 1st defendant by late T.R. Srinivasan and others; and that after selling the property T.R. Srinivasan and others left to the United States of America in the year 2000. They claim to be in possession of the subject properties on the date of filing of the suit.
34. It is an admitted fact that validation of the unregistered sale deeds dt.21.04.2000 / 23.04.2000 was done on 21.08.2007 by 1st defendant by paying the deficit Stamp Duty. But none of these unregistered sale deeds have been filed by the defendants in the Court below.
35. The existence of those unregistered sale deeds and their validation on 21.08.2007 is admitted by plaintiffs in para no.8 of the plaint, but they deny execution of the same by late T.R. Srinivasan and others on the ground that the passports of the executants show that they left Chennai on 14.04.2000 and landed in United States of ::8:: MSR,J & TVK,J cma_314_2021 America on 15.04.2000, and so they did not execute the said unregistered sale deeds in favour of 1st defendant.
36. We have already noted that the suits for specific performance filed by 1st defendant against the executants of the said unregistered sale deeds got dismissed between 2010-2015. So the title to the property cannot prima-facie be claimed by defendant no.1 or the other defendants claiming through him under subsequent alienations under Exs.P.16 to P.28 between 2018-2020.
37. But the critical question is who is prima facie in possession of the suit schedule property as on the date of filing of the suit.
38. The plaintiffs may have prima facie title, but if they are not in possession on the date of filing of the suit, then they cannot seek relief of temporary injunction/perpetual injunction and have to sue for recovery of possession.
39. In this country, it is settled law that law presumes that possession would go with title unless rebutted.
40. Equally it is well settled that a person in settled possession of property is entitled to retain it and even a rightful owner can be injuncted from using force or taking the law into his own hands.
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41. In Rame Gowda v. M. Varadappa Naidu1, the Supreme Court has authoritatively reiterated these principles :
"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. ... ... If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. ... ....
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner."
42. As already stated above, though plaintiff nos.1 to 5 are residents of United States of America even as on the date of filing of the suit, they claim to be in possession of the property invoking the principle that since they have title, they are presumed to be in possession of the suit schedule property.
43. In State of A.P. v. Star Bone Mill and Fertiliser Company2, the Supreme Court held :
"21. ... ... ... The maxim "possession follows title" is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another.1
(2004) 1 SCC 769, at page 775 2 (2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444, at page 327 ::10:: MSR,J & TVK,J cma_314_2021 Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him.." (emphasis supplied)
44. So, the principle "possession follows title" has limited application and can be invoked only in cases where proof of actual possession cannot reasonably be expected or where nothing is known about possession one way or the other.
45. Suppose there is prima-facie evidence that Late T.R.Srinivasan and others had executed the 11 unregistered sale deeds dt.21.4.2000 in favour of the 1st defendant, and there are recitals therein about delivery of possession to the 1st defendant, then the defendants can rely on proviso to Section 49 of the Registration Act,1908 and the recitals in the unregistered sale deeds for the collateral purpose of proving their possession under them.
46. Under proviso to Section 49 of the Indian Registration Act, 1908, an unregistered document affecting immoveable property and required by the Registration Act or the Transfer of Property Act, 1882 to be registered may be received in evidence of any collateral transaction not required to be effected by registered instrument.
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47. In Bondar Singh v. Nihal Singh3, the Supreme Court held as follows :
"5. The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in-interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. ... ... ..."( emphasis supplied)
48. In A.Kishore v. G.Srinivasulu4, a Division Bench of this Court held that an unregistered lease deed, though inadmissible in evidence to prove right to immoveable property or for the purpose of proving the terms of such lease or the lease itself, can be taken into consideration and can be admitted in evidence for collateral facts or purposes like character of possession.
49. We may point out that the plaintiffs have not chosen to mark the passports of Late T.R. Srinivasan and others who allegedly executed the unregistered sale deeds on 21.04.2000 in favour of 1st defendant in the Court below. So their plea that the executants were not in India on the date of execution of these documents is at present not established. If they are given an opportunity to file them in the 3 (2003) 4 SCC 161 4 2004(3) ALD 817 (DB) ::12:: MSR,J & TVK,J cma_314_2021 Court below then, we feel that, there would be more clarity in the matter. Then it would be possible for the Court to decide whether the said unregistered sale deeds were indeed executed by Late T.R.Srinivasan and others or not.
50. We may mention that certain documents purporting to be colour photocopies of passports Late T.R.Srinivasan and others were filed in this Court through a Memo. But we are not inclined to go into the said documents as they were not filed in the Court below and it had no opportunity to consider them.
51. Had the defendants filed the 11 unregistered sale deeds referred to above, it would have been possible to ascertain whether there are recitals therein about delivery of possession to the 1st defendant therein and come to a prima facie conclusion about delivery of possession to 1st defendant by late T.R. Srinivasan and others. So we feel that even the defendants ought to be given an opportunity to file them in the Court below.
52. If such recitals of delivery of possession to 1st defendant are absent in these 11 unregistered sale deeds dt.21.4.2000, then the defendants' plea of being in possession can be disbelieved.
53. But if such recitals of delivery of possession on 21.4.2000 to 1st defendant exist, then the plaintiffs, who are claiming through Late T.R.Srinivasan and others, have to show how they got back possession of the A to C schedule properties after the said date . If not ::13:: MSR,J & TVK,J cma_314_2021 they cannot seek relief of temporary injunction of the nature prayed for in the IA.NO.59 of 2021.
54. We are of the opinion that (a) non-filing by the plaintiffs in the Court below of the certified copies or originals of the passports of the executants of the unregistered sale deeds including late T.R. Srinivasan and (b) non-filing by the defendants in the Court below of the 11 unregistered sale deeds allegedly executed on 21.04.2000 by late T.R. Srinivasan and others, makes it difficult to form an opinion on the rival claims of the parties.
55. The Court below in the impugned order held that dismissal of the suits for specific performance filed by the 1st defendant establishes that there is no title in his favour, but ignored the effect of proviso to Section 49 of the Registration Act, 1908 with regard to use of unregistered documents in evidence for proving the collateral transaction of nature of possession.
56. The Court below also erred in applying the principle that "possession follows title" on the basis that the plots are open plots, without considering the restrictive application of the above principle as held in Star Bone Mill and Fertiliser Company (2 supra) that it would apply where proof of actual possession cannot reasonably be expected, for instance in the case of wastelands, or where nothing is known about possession one way or another. Admittedly, the suit ::14:: MSR,J & TVK,J cma_314_2021 schedule land is not waste land. That apart, admittedly, on the date of filing of the suit, they were not even residents of India.
57. Moreover, the building permission Ex.P27 filed by the plaintiffs cannot be treated as prima-facie proof proof of their possession.
58. We therefore are of the opinion that the impugned order cannot be sustained and that the matter requires to be remanded back to the Court below to consider the aspect of possession of the plaintiffs on the date of filing of the suit, by giving opportunity to the parties -
(a) the plaintiffs to file certified copies or originals of the passports of late T.R. Srinivasan and others who allegedly executed the 11 unregistered sale deeds on 21.04.2000 to prima facie prove that they did not execute the said unregistered sale deeds; and
(b) the defendants to file certified copies / originals of the 11 unregistered sale deeds dt.21.04.2000 to prima facie prove that possession was delivered to them by the executants under the said documents.
59. Therefore, without expressing any opinion on the rival contentions of the parties, we allow the Appeal, set aside the order dt.01.06.2021 in I.A.No.59 of 2021 in O.S.No.13 of 2021 on the file of the XVI Additional District and Sessions Judge, Ranga Reddy District, at Malkajgiri and remand the said IA for fresh disposal for the above purpose in order to decide the question about prima facie possession of the parties on the date of filing of the suit.
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60. The parties are given two (02) weeks from the date of receipt of copy of this order to file the documents referred to in para no.58 supra; and the Court below shall then decide the I.A.NO.59 of 2021 within three (03) weeks of filing of such documents after hearing both sides.
61. The Court below shall keep in mind the principles governing the grant of temporary injunction pending suit which were laid down in Gujarat Bottling Co. Ltd. v. Coca Cola Co5., as under:
" The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests -- (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against 5 (1995) 5 SCC 545, at page 574 ::16:: MSR,J & TVK,J cma_314_2021 another and determine where the "balance of convenience" lies. [See: Wander Ltd. v. Antox India (P) Ltd.6, (SCC at pp. 731-32.] "
62. We direct the parties to maintain status quo in all respects till the disposal of the I.A.
63. Both parties are directed to co-operate with the Court below for disposal of the I.A. within the time stipulated without seeking unnecessary adjournments. No costs.
64. As a sequel, miscellaneous petitions pending if any in this Civil Miscellaneous Appeal, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J ___________________ T.VINOD KUMAR, J Date: 17.08.2021 Ndr 6 (1990) Supp SCC 727