HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T. VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.326 OF 2021
JUDGMENT:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is preferred against the judgment and decree dt.30.06.2021 in I.A.No.73 of 2021 in O.S.No.68 of 2021 of the V Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar.
2. The appellant is the plaintiff in the suit. He filed the said suit for a perpetual injunction restraining the respondents from interfering with his alleged peaceful possession of the suit schedule property.
3. The suit schedule property is an extent of 5082 sq. yds., equivalent to Ac.1.02 gts., out of Ac.1.30 gts., in Sy.No.60/Part, Kokapet Village and Gram Panchayat, Gandipet Mandal, Ranga Reddy District, Telangana State within specified boundaries.
Case of the appellant / plaintiff
4. According to the appellant, he purchased the suit schedule property along with M/s. R.R. Estates and Constructions under a registered sale deed Ex.P1 dt.20.11.2018 from the previous owner one G. Karunakar and others for a consideration of Rs.1,83,75,000/-, that the purchasers were put in possession of the land, and the same was also mutated in his favour vide proceedings Ex.P3 dt.25.08.2019 issued by the Tahsildar, Gandipet. 2
5. The appellant contended that the co-owner M/s. R.R. Estates and Constructions subsequently executed Ex.P6 registered release deed 11.02.2020 giving up its share of 1815 sq. yds., in appellant's favour, and the appellant thus became the absolute owner of the entire suit schedule property and was in possession thereof.
6. The appellant contended that the respondents, who have no right or title over the suit schedule property, came to the suit schedule property along with unsocial elements on 03.02.2021 and 05.02.2021 and were illegally trespassing into the suit schedule property which was an open land but the appellant had resisted the said attempts with the help of village people. The appellant alleged that the respondents then left the property threatening the appellant that they would come with more force and dispossess him. He also alleged that he sought to make a complaint before the Narsingi Police Station against the respondents, but the police refused to register FIR on the ground that the dispute is a civil nature and advised him to approach the Court.
I.A.No.73 of 2021 in O.S.No.68 of 2021
7. Along with the suit, the appellant filed I.A.No.73 of 2021 under Order XXXIV Rules 1 and 2 CPC for an ad interim injunction restraining the respondents from interfering with his alleged peaceful possession over the suit schedule property by reiterating the contents of the plaint. 3 Written statement of the 1st respondent in the suit / counter filed by the 1st respondent in I.A.No.73 of 2021
8. The 1st respondent denied the title and possession of the appellant over the suit schedule property and also denied the purchase by the appellant and M/s. R.R. Estates and Constructions under the registered sale deed Ex.P1 dt.20.11.2018. He further contended that Ex.P3 proceedings of the Tahsildar, Gandipet dt.25.08.2019 mutating the name of the appellant itself states that 'the order does not affect the subsisting possessory rights of third parties, if any', that the appellant's possession is not recorded by authorities and he cannot rely on the mutation order.
9. It is contended by respondents 1 and 2 that the 1st respondent purchased 1573 sq. yrds., equivalent to Ac.0.13gts. in Sy.No.60 Part situated in Kokapet Village from G. Karunakar and 71 others (who were also vendors to the appellant under Ex.P1 sale deed on 20.11.2018) under registered sale deed Ex.R1 dt.19.11.2018 and since then the 1st respondent was in possession and enjoyment of the land; and the 2nd respondent also purchased 1815 sq. yds., equivalent to Ac.0.15 gts., in Sy.No.60 Part from the same persons under another registered sale deed Ex.R4 Document No.11157 of 2018 dt.20.11.2018 and the 2nd respondent was also in possession and enjoyment of the land.
10. They contended that there was some mistake in the mentioning of the boundaries and so the vendors rectified the same vide Rectification deeds Exs.R2 and R5 both dt.13.01.2020.
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11. They alleged that they approached the revenue authorities for conversion of the land use from agriculture to non-agriculture, and after due verification, the Revenue Divisional Officer, Rajendernagar had issued proceedings granting conversion on complying with the requirements under Act 3 of 2006 vide Ex.R3 dt.28.01.2020 and Ex.R6 dt.18.02.2020. They alleged that they are in joint possession of the suit schedule property and they started construction activities over the site.
12. They contended that the appellant who did not have any rights over the suit schedule property and who was also not in possession of the property, filed the suit only to harass them. The other allegations made by the appellant were denied.
Exparte ad-interim injunction dt.10.2.2021 granted by the trial court in IA.No.73 of 2021
13. The Court below initially granted ad interim injunction on 10.02.2021 in favour of the appellant.
C.M.A.No.100 of 2021
14. The respondents questioned it in C.M.A.No.100 of 2021 and in I.A.No.2 of 2021 on 19.02.2021, this Court suspended the said ad interim injunction on the ground that reasons were not furnished as mandated by proviso to Order XXXIX Rule 3 CPC and also the judgment of the Supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi1.
1 (1993) 3 SCC 161 5
15. Ultimately, on 17.03.2021, it was brought to our notice that a detailed docket order dt.10.02.2021 had been passed by the Court below indicating the reasons for grant of ad interim injunction ex parte on 10.02.2021.
16. Since this was not brought to our notice, we had earlier passed the order in I.A.No.2 of 2021 on 19.02.2021.
17. So we vacated the order dt.19.02.2021 in I.A.No.2 of 2021 in C.M.A.No.100 of 2021.
18. However, taking into account the fact that the respondents had filed counter affidavits in I.A.No.73 of 2021 in O.S.No.68 of 2021, this Court directed the Court below to hear both sides and decide I.A.No.73 of 2021 within six weeks.
Order of the Court below in I.A.No.73 of 2021:
19. Thereafter, the impugned order has been passed on 30.06.2021 by the Court below dismissing I.A.No.73 of 2021 and vacating the ad interim injunction granted on 10.02.2021.
20. After referring to the contentions of the parties, the Court below noticed that the vendor of both parties are one and same i.e., Sri G. Karunakar and others; and that while the appellant claimed that he along with M/s. R.R. Estates and Constructions purchased Ac.1.02 gts., out of Ac.1.30 gts., under Ex.P1 sale deed dt.20.11.2018 for valid consideration, the respondents contended that they purchased the 6 property under Exs.R1 and R4 dt.19.11.2018 and 20.11.2018, which had been rectified under Exs.R2 and R5 rectification deeds.
21. Thereafter, the Court below stated that it carefully examined the three sale deeds of the appellant and the respondents and that it was apparent on the face of the record that the boundaries shown in Ex.P1 sale deed of the appellant were not in respect of Ac.1.02 gts., but they were in respect of the entire land of the vendor admeasuring Ac.1.30 gts. From this it drew a conclusion that the appellant was not in possession of Ex.P1 property.
22. It also observed that the respondents had obtained rectification deeds from their vendor, but the appellant did not choose to obtain any rectification deed rectifying his boundaries to the extent of Ac.1.02 gts., and he had not filed any document to show that his vendor was owning Ac.1.30 gts., in Sy.No.60/Part.
23. It observed that according to the parties, the appellant purchased Ac.1.02 gts., and the respondents together purchased Ac.0.28 gts., out of Ac.1.30 gts., but it is not know whether Ac.1.30 gts., is physically available or not.
24. It observed that the burden lies on the appellant to prove the existence of Ac.1.02 gts., in Sy.No.60/Part by placing cogent evidence, but that evidence was not forthcoming.
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25. It also observed that the appellant had not filed the pahani for the year 2020 and so he did not establish possession on the date of filing of the suit.
26. Reference is made to W.P.No.4191 of 2019 filed by the appellant and his co-vendee M/s. R.R. Estates and Constructions for a direction to the State Government not to take up fencing work of Government land located in Sy.No.230 of Kokapet Village, Gandipet Mandal by closing the road leading to Kokapet Village from outer ring road via Shanthi Nagar and it stated that the appellant did not disclose about filing of this Writ Petition and had suppressed material facts.
27. The Court below also referred to the written arguments submitted by the appellant, wherein the appellant had submitted that his registered sale deed was earlier in point of time to that of the respondents, and held that though the appellant had knowledge about purchase of the land by the respondents from the same vendor, he had suppressed it and did not disclose it in his pleadings.
28. It also ignored Ex.P3 mutation proceedings dt.25.08.2019 issued by the Tahsildar, Gandipet Mandal in the names of the appellant and his co-vendee M/s. R.R. Estates and Constructions on the basis of one sentence in the said order stating that the said 'order would not affect the subsisting possessory rights of third parties, if any, in the said land' and that it was confined only to the title rights only for updating the Revenue Records. It went on to hold that the mutation proceedings do not confer any possessory rights on the appellant and his co-vendee and they do not 8 speak of exclusive possession of the appellant and his co-vendee in respect of Ac.1.02 gts., of land.
29. It took note of Ex.P5 joint inspection report filed by the appellant and the contents of the said inspection report that the total extent of Sy.No.60 is Ac.8.13 gts., and out of the same, Ac.1.02 gts., was the appellant's land, Ac.0.01 gt., was affected in canal and Ac.0.07 gts., of land was affected in buffer zone and observed that only the balance area of Ac.0.34 gts was of the appellant, and not Ac.1.02 gts. It held that the appellant did not choose to plead this fact in his pleadings.
30. On the pretext that the boundaries in Ex.P1 sale deed and Ex.P6 release deed are one and the same, it held that the boundaries of the land claimed by the appellant are vague.
31. It then held that the land conversion certificates Exs.R3 and R6 issued by the Revenue Divisional Officer, Rajendernagar to the respondents for conversion of usage of land from agriculture to non- agriculture and the building permit plan and sanction obtained under Exs.R7 and R8 indicate the possession of the respondents and that the respondents had fenced the land with tin sheets and they had filed photographs under Ex.R10 dt.25.01.2021.
32. It also observed that there is a cloud on the title of the appellant to the suit schedule property and the suit schedule property requires to be identified by localizing with reference to the sale deeds obtained by the appellant from his vendor, and the simple suit for injunction is not maintainable in the facts and circumstances of the case in view of the 9 judgment of the Supreme Court in Anathula Sudhakar v. Buchi Reddy2. It therefore concluded that the appellant had failed to prove his possession and enjoyment over the suit schedule property on the date of filing of the suit.
The instant CMA
33. Assailing the same, this Appeal is filed.
34. Sri V. Srinivas, learned Senior Counsel appearing for Ms. V. Chitralekha, learned counsel for the appellant and Sri R. Mahender Reddy, learned Senior Counsel appearing for Sri D. Jagadishwar Rao, learned counsel for the respondents.
The consideration by the Court
35. From the facts narrated above, it is clear that the appellant had filed the suit for a perpetual injunction asserting his possession and claiming that he is the owner of the suit schedule property having purchased it under Ex.P1 sale deed 20.11.2018 along with M/s. R.R. Estates and Constructions and that he became exclusive owner when his co-vendee M/s. R.R. Estates and Constructions executed a registered release deed Ex.P6 dt.11.02.2020.
36. Respondents 1 and 2 contended that the same vendors had executed Ex.R1 sale deed on 19.11.2018 in favour of the 1st respondent in respect of Ac.0.13 gts., equivalent to 1573 sq. yds., and that the 2 (2008) 4 SCC 594 : AIR 2008 SC 2033 10 2nd respondent purchased 1815 sq. yds., equivalent to Ac.0.15 gts., under Ex.R4 dt.20.11.2018.
37. A perusal of the suit schedule indicates that the boundaries shown therein are for Ac.1.02 gts., having on the North: Sy.No.78/Part, South: Land of Chandu Bhai Jewellers, East: Sy.No.60/Part and West: Shanthinagar Road.
Exactly the same boundaries are found in Ex.P1 sale deed executed in favour of the appellant and M/s. R.R. Estates and Constructions by their vendor on 20.11.2018.
38. The claim of respondents 1 and 2 is for Ac.0.13 gts., and Ac.0.15 gts., respectively as mentioned above and they claim under Ex.R1 sale deed dt.19.11.2018 and Ex.R4 sale deed dt.20.11.2018.
39. But admittedly the boundaries mentioned in these two documents were not correct and this necessitated the execution of the Ex.R2 dt.13.01.2020 and Ex.R5 dt.13.01.2020 changing the northern boundary as Sy.No.60/Part instead of "Sy.No.78/P".
40. Since what was purchased by both the respondents is far less than Ac.1.02 gts., and 1st respondent claims to have purchased only Ac.0.13 gts., and the 2nd respondent claims to have purchased only Ac.0.15 gts., respectively, it is obvious that they could not have been put in possession of the entire land contained between the boundaries mentioned originally in Ex.R1 and Ex.R4 sale deeds.
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41. We fail to understand how by simply looking at Ex.P1, Ex.R1 and Ex.R4 sale deeds, a conclusion could have been drawn by the Court below that the boundaries shown in Ex.P1 sale deed of the appellant were not in respect of Ac.1.02 gts., but it was in respect of the entire land of the vendor admeasuring Ac.1.30 gts. This, in our opinion, is a finding based on no evidence.
42. The Tahsildar, Gandipet issued proceedings under Section 4(1) of the A.P.Rights in Land Pattadar passbooks Act,1971 in Proceedings No.MUT/B/947/2018 dt.25.08.2019 for grant of mutation in favour of the appellant and his co-vendee in respect of purchase of Ac.1.02 gts., under Ex.P1 and directed necessary changes to be carried out in the pahani for the year 2019-20.
43. This mutation order was issued after calling for objections and after verifying the documents and tallying with revenue records. This order had not been challenged by the respondents by way of Appeal under the A.P. Rights in Land and Pattadar Pass Books Act, 1971.
44. In Mohd. Kareemuddin Khan and Ors. vs. Syed Azam3, a Division Bench of this Court held:
"the entries of the pahanis would constitute evidence for proof of the factum of possession of the respondent as no contrary evidence has been led to nullify the effect of that evidence".
45. Under Sec.6 of the said Act, there is a presumption of correctness of entries in the record of rights. Such an order directing mutation of the 3 MANU/AP/0396/1996 = 1997 4 ALD 816 (DB) 12 appellant's name in the revenue records indicates prima-facie possession of the appellant as on the date of the said order and thereafter too unless the respondents are able to show how they got possession thereafter.
46. So the Court below cannot prima-facie doubt the transaction in favor of the appellant under Ex.P1 at this point of time and state that it is not known if Ac.1.30 gts (of which Ac.1.02 gts forms a part) is physically available or not and the petitioner must discharge this burden, and there is no evidence forthcoming.
47. Merely because there is an observation in the Tahsildar's proceeding that the said order would not affect the subsisting possessory rights of third parties, no conclusion could be drawn that the said order would not affect the possessory rights of the respondents because there is no evidence adduced on behalf of the respondents about their possession of the suit schedule property.
48. As regards the observation of the Court below that the pahani for the year 2020 has not been filed, when the pahani for 2019-20 contains the name of the appellant as it stood by virtue of the mutation proceedings Ex.P3 dt.25.08.2019, unless the respondents show that they somehow obtained possession from the appellant in a manner known to law, the state of affairs which existed in 2019-20 is presumed to continue and the appellant is presumed to be in possession of the property also in 2020-21.
49. The fact that the respondents have obtained rectification deeds from their vendor and the appellant did not choose to obtain any 13 rectification deed does not improve the case of the respondents in any respect because the very execution of the said rectification deeds indicates that the boundaries of the property mentioned in Exs.R1 and R4 sale deeds were incorrect and any recital therein about delivery of possession of the property covered by the boundaries would not be of any value.
50. We also do not agree with the Court below that there was suppression of fact by the appellant with regard to filing of W.P.No.4191 of 2019 before this High Court because the said Writ Petition does not relate to the suit schedule property at all but was in regard to seeking of directions to the State Government not to take up fencing work of Government land located in different Survey Number, i.e., Sy.No.230 of Kokapet Village, Gandipet Mandal. There was no necessity for the appellant therefore to mention about filing of the said Writ Petition.
51. Similarly, the observation of the Court below regarding Ex.P5 joint inspection report also cannot be correct prima facie because it is nobody's case that the said inspection report was prepared after an inspection was done with notice to the appellant, and such inspection report would not bind the appellant if it was prepared behind the appellant's back. Merely because the appellant filed the said report, it cannot be said that the appellant is bound by the said report.
52. Coming to the observation made in para 18 by the Court below regarding the release deed Ex.P 6 and the boundaries in the release deed, we may point out that in Ex.P1 sale deed, the boundaries of the entire 14 undivided land of 5082 sq. yrds., are given. But the consideration was split between the appellant (who paid for 3267 sq. yrds), and his co-vendee M/s. R.R. Estates and Constructions (who paid for 1815 sq. yds). But inter se division of land as between them was not demarcated in the Ex.P1 sale deed which was for the entire 5082 sq. yds. Naturally when a release deed is executed in such circumstances, it would mention that the co-vendee M/s. R.R. Estates and Constructions is releasing its undivided share of 1815 sq. yds., by giving the boundaries of the entire 5082 sq. yds. No exception can be taken to this because though the extent of the share was agreed upon between both the appellant and his co-vendee, there was no partition at the time of Ex.P1 nor was such partition entered into prior to or at the time of Ex.P6 release deed.
53. We are also of the opinion that the Court below could not have relied upon the land conversion certificates issued under Ex.R3 and R6 by the Revenue Divisional Officer, Rajendernagar in favour of the respondents or the building permit plan and sanction by the Narsingi Municipality under Exs.R7 and R8 because the order of the Revenue Divisional Officer, Rajendernagar was challenged in W.P.No.15573 of 2021 by the appellant and the said Writ Petition was disposed of on 12.07.2021 directing the District Collector to consider the Appeal filed by the appellant and decide it in 10 weeks. In any event, the proceedings for conversion of land or for building permission cannot have any evidentiary value with regard to determining possession of the property. 15
54. The photographs filed by the respondents also could not have been relied upon by the Court below because there is no prima-facie evidence that they relate to the land claimed by the appellant.
55. The Court below, in our opinion, also misunderstood the judgment in Anathula Sudhakar (2 supra), merely because the respondents have disputed title. This is because the very same judgment holds that persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property.
56. In the instant case the vendors of the appellant and the respondents admittedly owned Ac.1.30 gts., of which the appellant claimed only Ac.1.02 gts., while the respondents together claimed the balance Ac.0.28 gts. When there is no claim by the respondents to Ac.1.02 gts., claimed by the appellant, there is no necessity for the appellant prima facie to also sue for declaration of title.
57. In M.Kallappa Setty v. M.V.Lakshminarayana Rao4, the Supreme Court had held that the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property; once it is accepted that the plaintiff was in possession of the property, then his possession has to be protected as against interference by someone who has no better title than himself and 4 (1973) 2 SCC 358 16 the plaintiff was entitled to the relief of injunction even if he had failed to prove his title satisfactorily.
58. It is infact premature for the Court below to express any opinion on the aspect of the need for appellant to seek relief of declaration in the light of the above settled legal principles.
59. Prima facie we are of the opinion that the appellant's possession of the suit schedule property is established by Ex.P3 mutation proceedings dt.25.08.2019 and the appellant is therefore entitled to the relief of temporary injunction pending suit.
60. Accordingly, the Appeal is allowed; order dt.30.06.2021 in I.A.No.73 of 2021 in O.S.No.68 of 2021 of the V Additional District and Sessions Judge, Ranga Reddy at L.B.Nagar is set aside and the said I.A.No.73 of 2021 is allowed.
61. Pending miscellaneous petitions, if any, in this Appeal shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _____________________ T. VINOD KUMAR, J Date: 23-08-2021 Svv