THE HONOURABLE JUSTICE G. SRI DEVI
I.A.No.1 of 2015, I.A.No.1 of 2020 and I.A.No.6 of 2020 in/and
APPEAL SUIT No. 680 of 2014
JUDGMENT:
1. The appellant, who is the plaintiff, assailing the judgment and decree dated 25.11.2014 passed in O.S.No.9 of 2012 by the Additional District Judge, Vikarabad, Ranga Reddy District, filed the present appeal.
2 The trial Court dismissed the suit filed by the appellant Trust for perpetual injunction against the respondents from interfering with its peaceful possession and enjoyment over the suit schedule lands.
3. The facts of the case are that appellant Trust is a registered one and purchased the lands in Sy.No.125 Part, admeasuring Ac.2- 21 guntas, and Sy.No.126 Part, admeasuring Ac.3-35 guntas, totally admeasuring Ac.6-16 guntas of Tandur village, and in Sy.No.52 Part, admeasuring Ac.4-34 guntas; Sy.No.53 Part, admeasuring Ac.2-04 guntas; Sy.No.54/C, admeasuring Ac.3-12 guntas; Sy.No.55 Part, admeasuring Ac.13-11 guntas; and Sy.No.56/B, admeasuring Ac.3- 38 guntas., totally admeasuring Ac.27-19 guntas of Malreddypalli village, Tandur Mandal, R.R. District. The said lands were originally owned and possessed by M/s. Deccan Porcelain and Potteries 2 Limited a company incorporated under the Companies Act. The said company was ordered to be wound up under Section 439 of the Indian Companies Act, 1956, by an order dated 19.08.1960 in O.P. No.4 of 1959 on the file of the High Court of Andhra Pradesh. The said winding up order was confirmed in O.S.A. No.4 of 1960 dated 06.01.1961 passed by the Division Bench of the High Court of A.P. The said company's assets are consisting of building, machinery and lands in Sy.No.125 part, admeasuring Ac.2-21 guntas., and Sy.No.126 Part, admeasuring Ac.3-35 guntas totally admeasuring Ac.6-16 guntas of Tandur village, and in Sy.No.52 Part, admeasuring Ac.4-34 guntas; Sy.No.53 Part, admeasuring Ac.2-04 guntas; Sy.No.54/C, admeasuring Ac.3-12 guntas; Sy.No.55 part, admeasuring Ac.13-11 guntas and Sy.No.56/B, admeasuring Ac.3-38 guntas, totally admeasuring Ac.27-19 guntas of Malreddypalli village, Tandur Mandal, R.R. District. The High Court of A.P, by an order dated 30.03.1973 in C.A. No.39 of 1973 directed the Official Liquidator to sell all the assets of the company consisting of building, machinery and suit schedule property by calling for tenders. Accordingly, the Official Liquidator called for tenders by way of publication in English daily 'Deccan Chronicle' dated 07.04.1973 and Urdu daily Siasat, dated 04.04.1973. The appellant Trust offered to purchase the said lands for a sum of Rs.80,000/- and 3 the bid of the appellant was accepted by an order dated 20.04.1973 in Company Application No.39 of 1973. The appellant trust paid the entire sale consideration and by an order dated 09.11.1973 in C.A. No.39 of 1973 the High Court confirmed the sale in favour of the appellant Trust and further the Official Liquidator was authorized to execute a registered sale deed in respect of the suit schedule property at the expenses of the purchaser i.e., the appellant Trust. The appellant Trust was put in possession as per letter dated 13.11.1973 issued by the Official Liquidator. Since there was a discrepancy with regard to total extent of land, the same was corrected by the High Court, by an order dated 22.11.1980 passed in Company Application Nos.93 of 1978 and 30 of 1980 in Company Petition No.4 of 1959. The High Court appointed an Advocate Commissioner to make spot inspection relating to the property sold by the Official Liquidator at Malreddypalli and Tandur villages and to take measurements and prepare plans after noting the physical features and identification of the property. One K. Venkataswamy, Retired Deputy Inspector of Survey and Land Records was appointed as Commissioner by an order dated 06.07.1979 and the said Commissioner submitted his report dated 9/16.11.1979 stating that he verified the pahani and map of Tandur village in the light of the publication as to sale made in the 'Deccan Chronicle' and 'Siasat' 4 dated 04.04.1973 and 07.04.1973 and that as per the entries in the pahani, in pattadar column, the name of one Mir Mohammed Ali Khan was recorded in respect of Sy.Nos.53, 54/C, 55 and 57/B, but there is no such person in the village claiming the said lands and in possession column it was recorded as "Cheeni Factory" i.e., M/s. Deccan Porcelain and Potteries Limited. The Commissioner appointed by the High Court inspected the properties owned by M/s. Deccan Porcelain and Potteries Limited and demarcated the lands in Sy.Nos.53, 54/C, 55 and 56 of Malreddypalli and S.Nos.125 and 126 of Tandur and reported that the appellant Trust is in possession and enjoyment of the said lands. Accordingly, the Official Liquidator executed a registered sale deed dated 24.11.1983 on behalf of M/s. Deccan Porcelain and Potteries Limited in favour of the appellant Trust.
4. The appellant Trust in pursuant to the purchase of the suit schedule property established a Degree college in the name of Peoples Degree College in the year 1973 and the same was affiliated to Osmania University and various courses were running in the said degree college with 1000 students. The name of the appellant Trust was also recorded in the revenue records as pattadar, owner and possessor of the suit schedule property. The appellant Trust soon after the purchase constructed pucca buildings, sheds and started 5 running various courses. All the lands in various survey numbers are contiguous and abutting to each other and accordingly degree and junior colleges were established in part and parcel of the said lands and also using the part of the land as playground and the said lands are covered with fencing. The respondents/defendants claiming to be the legal heirs of one late Mir Mohd. Ali Khan came to the suit schedule properties on 23.06.2012 at 4.00 P.M accompanied by antisocial elements and thereby tried to interfere with the peaceful possession and enjoyment of the suit schedule property, as such the appellant Trust approached the police, Tandur, however the police refused to interfere. Therefore, the appellant Trust was constrained to file the suit for perpetual injunction restraining the respondents from interfering with its peaceful possession and enjoyment over the suit schedule property.
5. The respondents/defendants filed written statement denying the claim of the appellant Trust and claimed that they are the legal heirs of Mir Mohd. Ali Khan and also denied the possession and enjoyment of M/s Deccan Porcelain and Potteries Limited and further claimed that their late father was in possession of the suit schedule property during his life time and thereafter they continued to be in possession. They further pleaded that they have no knowledge about the liquidation proceedings, however they have 6 accepted the commissioner's report in part to the extent of lands so far in recording the name of Mir Mohd. Ali Khan in pattadar column but denied the fact of possession of M/s. Deccan Porcelain and Potteries Limited which was recorded in possession column as Cheeni Factory. They further categorically stated that "mere entries in revenue records do not confer any valid title or right over the suit schedule property". The defendants further stated that the then Joint Collector in File No.B5/6028/91, dated 16.09.2003 directed to record their names holding that there was a clause in the sale deed executed by the Official Liquidator dated 24.12.1983 as "sale will be without any warranty or guarantee as to title and possession of the land and this sale shall be without any liability on the part of the Official Liquidator for the claims that may be made by third parties". The said clause was incorporated pursuant to the orders passed by the High Court in CA No.93 of 1978 and CA No.30 of 1980. Therefore, the defendants sought dismissal of the suit.
6. On the basis of the above pleadings, the Court below framed the following issues.
1. Whether the plaintiff is entitled for the relief of injunction?
2. To what relief.
7. On behalf of the plaintiff, Managing Trustee of the plaintiff 7 was examined as P.W.1 and another Trustee was examined as P.W.2 and independent witnesses were examined as PWs.3 to 5 and marked Exs.A1 to A37. On behalf of the defendants, defendant No.1 was examined as D.W.1 and marked Exs.B1 to B48.
8. The Court below dismissed the suit holding that it is for the plaintiff to establish its title prima facie over the suit schedule property by virtue of which it is claiming its possession and enjoyment over the suit schedule property. The plaintiff has examined 5 witnesses. PWs.1 and 2 have reiterated the contents of plaint claiming that the suit schedule property belong to Deccan Porcelain and Potteries Limited. The evidence of PWs.3 to 5 shows that the plaintiff Trust is located in the suit schedule property and is carrying on with its educational activities, but none of the three witnesses could mention the details of the suit property i.e., survey numbers and the location of the structures etc. The trial Court further held that since the suit is one for injunction simplicitor, it is for the plaintiff to establish its possession and enjoyment over the suit schedule property. That Exs.A5 to A7 shows that the plaintiff is a Trust incorporated for the purpose of imparting education to the poor people. As per Exs.A17 to A19, the plaintiff purchased the suit lands for a total consideration of Rs.80,000/- and the plaintiff filed Exs.A1 and A2 to show that the Official Liquidator executed a sale 8 deed in favour of the plaintiff with regard to the lands belonging to Deccan Porcelain and Potteries Limited as shown in Ex.A1. The plaintiff filed Exs.A10 to A14 to show that it has paid sale consideration to the Official Liquidator. The plaintiff claimed that it is in possession and enjoyment of the suit schedule property by virtue of title under Exs.A20 to A37 and contended that the document marked as Ex.A1 to A37 not only established their title but also their possession and enjoyment over the suit schedule property. The trial Court held that while a perusal of the oral and documentary evidence adduced by the defendants vide Exs.B1 to B28 and B48 show that the suit schedule property covered under Survey Nos.53 to 56 are patta lands belonging to one Mir Mahamood Ali Khan who is stated to be father of defendants 1 to 6 and subsequent to the death of Mir Mohamood Ali Khan, the defendants have acquired title and possession of the said lands of Ac.29.36 gts.in Survey Nos.53 to 56 of Malreddypally village which is part and parcel of the suit schedule property claimed by the plaintiff. The defendants filed pattadar passbooks and title deeds issued in favour of the defendants 1 to 6 which are marked as Exs.B.36 to B.47 and also filed Exs.B29 to B35 to show that they have agitating before the RDO., Joint Collector. Against the orders of the MRO, an appeal was filed before the Joint Collector, R.R. District, 9 who set aside the orders of the MRO mutating the name of the plaintiff Trust over the suit lands and further they contended that the proceedings under Exs.B29 to B35 clearly show that the mutation with regard to the suit lands in the name of the defendants, as such contended that by virtue of acquiring title over the said lands, they are still in possession and enjoyment of the said lands which are part and parcel of the suit lands. The trial Court held that though the plaintiff by virtue of sale deed under Ex.A1 contended that the plaintiff Trust has been handed over possession over the suit schedule property, but no documentary evidence was adduced by it to show that the Official Liquidator has handed over the suit schedule property physically to the plaintiff. Thus, the Court below has held that the plaintiff failed to produce any document to show that the suit schedule property covered under Ex.A1 has been physically handed over to their possession by the Official Liquidator and further held that the proceedings of the High Court itself shows that the property covered under Ex.A1 cannot be taken as property having clear title. The fact that Ex.A16 mentions no warrantee or guarantee as to the title and possession clearly goes undermine the statements of PWs.1 and 2 that any possession of suit property leaving alone the property covered under Sy.No.53 to 56 claimed by the defendants is handed over to the plaintiff. Thus, when Ex.A16 10 itself is accepted and the property covered under Ex.A1 does not have proper title, the question of the said property being transferred in favour of the plaintiff does not arise so also the possession and further held that while on the other hand the very documents of the plaintiff support the contentions of the documents of the defendants that they are in possession and enjoyment of the suit property to an extent of Ac.29.36 guntas., in Sy.Nos.53 to 56 by virtue of their title, as such held the issues against the plaintiff and accordingly dismissed the suit.
9. The present appeal is filed against the dismissal of the suit contending on various grounds.
10. The points that arise for consideration are that: (i) whether the trial Court is right in dismissing the suit for perpetual injunction? (ii) whether the trial Court is right in holding that the plaintiff failed to establish its title in a suit for injunction simplicitor without framing any issue in this regard? (iii) Whether the trial Court is right in holding that the plaintiff has failed to establish its possession over the suit lands.
11. The learned Counsel for appellant and the respondents and impleading petitioners have filed written arguments in addition to the oral submissions made by them.
11
12. The learned Counsel for the appellant submitted that the suit was filed for perpetual injunction simplicitor based on Ex.A.1, sale deed, executed by the Official Liquidator and the possession of the suit schedule property was delivered by the Official Liquidator under Ex.A.2, letter, dated 13.11.1973. That in pursuant to the mutation, the name of the appellant in the Pahani was incorporated for the years 1992-93 to 2011-12 under Exs.A.20 to A.37. Since there was no issue framed relating to title, the Court below ought not to have called upon to investigate or examine or render any finding on the question of title and relied upon the Judgment of the Supreme Court in Anantula Sudhakar v. Buchireddy1, wherein it was held that "but the finding of title cannot be recorded in a suit for injunction, unless there are necessary pleadings and proper issue regarding title". The appellant further contended that no issue has been framed on the question of title and in the absence of any issue on the question of title, the Court below erred in deciding the title. Therefore, he submitted that suit filed for injunction simplicitor is maintainable without seeking the relief of declaration. The Counsel for the appellant further submitted that the Official Liquidator after inviting advertisements in Siasat, dated 30.03.1973 and Deccan Chronicle, dated 04.04.1973, accepted the bid and that the High Court 1 (2008) 4 SCC 594 12 confirmed the sale, and accordingly the Official Liquidator delivered possession under Ex.A2-letter, dated 13.11.1973. The respondents/defendants have not challenged auction sale till date. Therefore, they cannot be permitted to question the title and possession of the appellant and he heavily relied on Ex.A.16 Order passed by the High Court. He further submitted that the respondents had complete knowledge of sale and it is evident from the fact that the respondents never raised any dispute even though the Commissioner appointed by the Court visited the suit schedule property, drew up a plan attached to Ex.A.1, sale deed, and fixed boundaries to measure and if really the respondents were in possession, they would have certainly raised objection. The appellant further contended that when the sale is confirmed and becomes absolute, the same has to be challenged before appropriate forum and till date, the respondents have not challenged the same. He further contended that the effect of disclaimer clause under Ex.A.1, sale deed, merely accepts the liability on the part of the Official Liquidator, in the event of future claim from any third party. The said clause means that when a claim is raised by third party, the claim has to be tested on merits, and if it is established that third party has substantial claim over the Judgment Debtor, the Official Liquidator is not liable. Therefore, on the basis of the disclaimer 13 clause, no rights were taken away from the appellant by merely incorporating the said clause in the sale deed. The said clause has to be read in entirety, therefore, he contends that first limb of the clause conveys all the right, title, ownership and possession and in the second limb, it was incorporated that the sale shall be without any warranty or guarantee and without any liability on the part of Official Liquidator. Therefore, it cannot be read in isolation. Thus, he contends that the evidence of P.W.1 to P.W.5 coupled with documentary evidence and also pleadings goes to establish that the plaintiff is in possession and enjoyment of the suit schedule property, all along for the last several decades, but the trial Court misinterpreted the oral and documentary evidence, thereby came to an erroneous conclusion and dismissed the suit, as such sought to set aside the impugned Judgment passed by the trial Court.
13. On the other hand, the learned Counsel for respondents 1 to 6 in addition to oral arguments also filed written submissions stating that the appellant failed to establish its possession over the suit schedule property as on the date of filing of the suit and hence the appellant is not entitled to permanent injunction against the respondents. He contended that in a suit for injunction under Section 38 of the Specific Relief Act, the plaintiff is required to establish its possession over the suit schedule property as on the 14 date of filing of the suit and relied upon the Judgment of the Supreme Court in Balkrishna Dattatraya Galande v. Balkrishna Rambharose Gupta2, wherein it was held that under "Section 38 of the Specific Relief Act, an injunction restraining/disturbing the possession of the defendant may not be granted in favor of the plaintiff unless he proves that he was in actual possession of the suit schedule property as on the date of filing of the suit". Basing on the said Judgment, he contended that the plaintiff has failed to establish its possession over the suit schedule property as on the date of filing of the suit. He disputed the claim of the plaintiff under Ex.A.1, sale deed, stating that the same is not supported by any evidence. He further submitted that a clause was incorporated in the sale deed, Ex.A.1, pursuant to the specific direction of the High Court, which was passed after noticing the fact that the revenue records reflected the name of Mir Mohammed Ali Khan as pattadar of the suit schedule property. He also contended that the plaintiff relied on the report of the Commissioner as referred to in Ex.A.16, Order, dated 22.11.1980 passed by the High Court was misplaced as the Commissioner has no authority to decide the possession of the suit schedule property. It is stated in his report that the possession has been handed over to the plaintiff cannot be relied upon. He further contended that the defendants did not have any notice regarding winding up 2 (2019) SCC Online SC 135 15 proceedings before the High Court even the public notice that is stated to be issued during the winding up proceedings mentions the land in Tandur Village and not Malreddipally Village, where the lands are actually located. He also contended that the averment made by the plaintiff that it had constructed structures over the suit schedule land is contrary to the admission of P.W.1 in his cross- examination. Therefore, he contended that the plaintiff cannot claim possession over the suit schedule property claiming that it had made constructions over it. He, further, contended that P.Ws.3 to 5 failed to identify the location of the suit schedule property and further argued that photographs filed by the plaintiff do not in any manner establish their possession over the suit schedule property. He heavily relies upon the Order passed by the Joint Collector, dated 16.09.2003, under Ex.B.33, contending that the Joint Collector specifically noted that the mutation was carried out without any notice to the pattadar Mir Mohammed Ali Khan and further the Joint Collector held that M/s.Deccan Porcelean and Potteries Limited has no title over the suit schedule land and cannot pass on title to the plaintiff. Therefore, he contended that the Order of the Mandal Revenue Officer mutating the name of the plaintiff as pattadar and possessor of the suit schedule property was set aside by the Joint Collector and the aforesaid order was not challenged by 16 the plaintiff and the same attained finality. He contended that the Order of the Joint Collector dated 16.09.2003 was implemented by the Mandal Revenue Officer vide proceedings dated 11.01.2012 under Ex.B.34 and relies upon the said proceedings stating that Mir Mohammed Ali Khan was the pattadar and possessor of the said lands. Therefore, he contended that the plaintiff has miserably failed to establish their possession and title over the suit schedule property as on the date of filing of the suit and further contended that the defendants are the owners and possessors of the suit schedule property as per the Revenue Records and Pattadar Passbooks and Title Deeds were issued in favour of the respondents.
14. The appellant Trust is claiming all its rights, possession and enjoyment over the suit schedule properties by virtue of purchase in a public auction conducted by the Official Liquidator pursuant to the directions of the High Court of Andhra Pradesh in OP No.4 of 1959. The order of the High Court which was marked as Ex.A16 is very crucial document for adjudicating the rival claims of the appellant and the respondents. It is evident from Ex.A16 order dated 22.11.1980 that the Official Liquidator called for tenders by publication in the English Daily Deccan Chronicle dated 07.04.1973 and Urdu daily Siasat dated 04.04.1973. In the schedule of properties, item 1, was the land admeasuring Ac.30.07 in Sy.Nos.53, 17 54, 55 and 56 of Tandur. Items 2 and 3 are building and machinery. On a report of the Official Liquidator, the said tender of the Vidya Vikas Samithi for Rs.80,000/- was accepted by order dated 20.04.1973 in CA No.39/73. The Official Liquidator reported that Vidya Vikas Samithi paid the entire amount within the time granted by the Court and by order dated 09.11.1973 in CA No.39 of 1973 the sale was confirmed in favour of Samithi and possession of the land was directed to be given to the said Samithi and the Official Liquidator was authorized to duly execute and register a sale deed in respect of the said property at the expenses of the purchaser whenever he was so requested. Before the properties were put to sale, a letter was addressed by the Official Liquidator to the Tahsildar, Tandur. The Tahsildar sent a reply in his letter No.A2/4960/1966 dated 04.03.1967 giving the particulars of the landed property of the company "Deccan Porcelain and Potteries Limited (in liquidation). The particulars mentioned are as follows:
1. Sy.Nos.53, 54, 55 and 56 situated at Malreddypalli, Tandur taluk.
2. 30.00 Acres.
3. All dry lands.
4. Rs.43.05.
5. The following are the boundary of the area in question: i) North: S.No.58, (ii) South: public way leading from Tandurto Anthwaram and boundary of (iii) East: S.Nos.57 and 52, (iv) 18 West: S.No.105.
6. Sketch of the village map is enclosed.
7. Copy of the pahani 1965-66 is enclosed.
8. As per the records of the office, the land in question is held patta in the name of Mir Mahammad Ali Khan and left uncultivated up to 1965-66.
9. There is no tenant over the area in question.
10. No remarks.
15. Further, the following facts are evidenced from Ex.A16 order, which are extracted hereunder:
"A joint survey was made by the Joint Director of Industries and Sri Neeladri Raju, an advocate of this Court as agent of the Official Liquidator and a report was submitted on 12.10.1970. It is represented that a plan was prepared by the Executive Engineer, Public Works Department delineating the land belonging to the company showing the extent of the said land as Ac.32.07 guntas, but without mentioning any Sy.Nos. or the name or names of the villages in which the lands are situate.
Since there was a difference between the descriptions of the land, no sale deed could be executed by the Official Liquidator as directed by the Court. Thereupon the Official Liquidator filed CA No.93/78 for suitable directions for execution of the sale deed in favour of the purchaser, Vidya Vikas Samithi, Tandur. The Samithi through its Vice-President, filed counter affidavit to the application stating that the Samithi had paid the full consideration of Rs.80,000/- to the Official Liquidator 19 and that possession of the land was delivered to the Samithi and that the necessary papers could not be filed before the Court for obtaining the sale deed from the Official Liquidator. Samithi also filed a draft sale deed along with a plan showing the lands in question for approval of this Court and expressing its willingness to purchase the necessary stamps and get the sale deed registered. As there was doubt or dispute with regard to the description or identity of the land, the Samithi filed an application in CA No.34 of 1979 for appointment of a Commissioner to make spot inspection relating to the properties sold by the Official Liquidator at Malreddypalli and Tandur villages and to take measurements and prepare plans after noting the physical features and identification of the property offered for sale by the Official Liquidator in public auction. One K. Venkateswamy, Retired Deputy Inspector of Survey and Land Records was appointed as Commissioner by order dated 06.07.1979 by the Hon'ble High Court. The said Commissioner submitted his report dated 9/16-11.1979 stating that he verified the pahani and map of Tandur village in the light of the publication as to sale made in the 'Deccan Chronicle" and "Siasat" dated 04.04.1973 and 07.04.1973 and he stated that as per the entries in the pahani S.Nos.53, 54/C, 55 and 57/B are patta lands in the name of Mir Mohammad Ali Khan Nawab, but there is no such person claiming the said lands. The Village Officer stated that the above lands were in the possession of M/s. Deccan Porcelain and Potteries Limited. The commissioner inspected the 20 property and demarcated Sy.Nos.53, 54, 55 and 56 of Malreddypalli and S.Nos.125 and 126 of Tandur with reference to field measurement book (Tippons) obtained from the Assistant Director, Survey and Land Records, Rangareddy district. After completion of the demarcation, the Commissioner measured the area covered by the above Sy.Nos. and prepared a combined plan of both the villages. On a perusal of the combined plan, the open land of M/s. Decan Procelain and Potteries Limited was found in Sy.No.52 (Portion), 53 (portion), 54/C, 55 (portion) and 56/B of Malreddypalli village and the godown fell in Sy.No.126 and the well in Sy.No.125 of Tandur village. The extent of the land in the possession of the company as per the pahani except Sy.No.52 and the survey are as follows:
Name of Sy.No. Area Name of the Name of the
Village Ac. pattadar possessor
Gts.
1.Tandur 125 part 2-21 Sarkari Chini Factory
village (DPPC Ltd) now
under possession
of Vidya Vikas
Samithi.
126 part 3.35 Poramboke -do-
6-16
52 part 4-34 Meer -do-
Mohd. Ali
2.Malredpalli 53 part 2-04 Khan -do-
Nawab
54/C 3-12 -do- -do-
-do-
55 part 13-11 -do- -do-
56/B 3-38 -do- -do-
27-19
21
Accordingly, he stated that the extent of the above S.Nos. in the two villages is 33 acres 35 gts., which was in the occupation of M/s. Deccan Porcelain and Potteries Limited and that the same is now in the possession of Vidya Vikas Samithi. He further mentioned that he prepared another plan which is annexure 'C' showing the land bearing S.Nos.52, 53, 54, 55 and 56 of Malreddypalli village and Sy.Nos.125 and 126 of Tandur village by superimposing the plan prepared by the Public Works Department of the year 1972 and that showed that the land belonging to M/s. Deccan Porcelain and Potteries Ltd., as found by public works department in 1972 as per their plan is the same as found by him as mentioned above. The surveyor concluded that the total extent of land in the possession of Vidya Vikas Samithi is Ac.33.35 guntas as mentioned by him and that the land offered and sold by the Official Liquidator and purchased by Vidya Vikas Samithi were the above S.Nos. in two villages and that the description of the land in the publication for sale was wrong. After receipt of the report of the Commissioner, the Samithi has filed an application in CA No.30 of 1980 for rectifying the description of the property as given in the proclamation of sale for issuance of a sale certificate. Since in the sale proclamation, there was only a reference to Ac.30.07 guntas of land belonging to the Deccan Porcelain and Potteries Limited in Sy.Nos.53, 54, 55 and 56 as the sale proclamation was issued on the basis of the information received from the Tahsildar, Tandur and that unfortunately, instead of Malreddipalli village, the 22 Sy.Nos. were stated to be in Tandur. It is further stated in paragraph No. 8 that the company's factory, premises and the godowns were partly situated in Sy.Nos.125 and 126 of Tandur village and the Official Liquidator had put to sale of the land as well as the buildings and factory etc., belonging to the company and that while the buildings were sold to one party, the land was sold to Vidya Vikas Samithi and that it could therefore be presumed that the company must have constructed its factory and buildings on the land belonging to the company and that the entire land of Ac.33.35 guntas was reported by the Commissioner to be in the possession of the company for the last 35 years and that proper entries of the land were not made in the Tahsildar's letter and that so far, no complaint was received by the Official Liquidator about the sale of the said lands. He further pointed out that it was significant to note that in the report submitted by the Commissioner against item 1, the land in S.No.125 part is stated to be Sarkari, while the land in Sy.No.126 part is stated to be poramboke. The Official Liquidator, therefore, seeks such appropriate orders and such appropriate directions by including clauses (4) and (5) in the terms and conditions of the sale. There appears to be no doubt that the properties of the company were situated partly in Tandur and partly in Malreddypalli villages and from the report of the Commissioner, it is clear that the buildings of the factory were actually situated in Tandur village bearing S.Nos.125 and 126, whereas the other portions of the land belonging to the company were in S.Nos.52, 53, 54/C, 55 23 and 56/B of Malreddypalli village. Apparently, the then Official Liquidator was misled by the description of the land given by the Tahsildar in his letter dated 04.03.1967 mentioning that the lands of the company were situated only in S.Nos.53, 54, 55 and 56 of Tandur. The fact that the company had also its factory and buildings in S.Nos.125 and 126 of Tandur was omitted to be mentioned by the Tahsildar. Therefore, an obvious mistake or error crept in while proclaiming the properties for sale in the sale notice dated 31.03.1973. In the circumstances, there being an error in the description of the properties actually sold in the sale notice, the same has to be rectified as prayed for by the applicant in CA No.30 of 1980. Accordingly, the sale notice giving the description of the properties to be sold as published in Deccan Chronicle dated 07.04.1973 and Siasat dated 04.04.1973 will stand rectified by describing the same as mentioned in the report of the Commissioner both with regard to their S.Nos., their extents and their location. Accordingly, CA No.30 of 1980 was allowed as prayed for. In the sale deed to be executed by the Official Liquidator in favour of the Samithi in respect of the land as per the orders in the applications, there will be a clause that the sale will be without any warranty or guarantee as to title or possession of the land and the sale will be effected without any liability on the part of the liquidator for the claims that may be made by any third party".
16. Pursuant to the orders of the High Court under Ex.A16, a clause was incorporated in the sale deed i.e., clause No.6 that "That 24 in pursuance of this deed of sale the vendor hereby transfers the right, title, ownership and possession of the land more specifically described in the schedule and hereinafter and hitherto being held by M/s. Deccan Porcelain and Potteries Ltd., (in liquidation). The vendor however, states that the sale will be without any warranty or guarantee as to title and possession of the land and this sale shall be without any liability on the part of the Official Liquidator, for the claims that may be made by third parties.
17. In the light of the above clause and orders of the High Court, it has to be seen whether the plaintiff established its possession over the suit land as claimed by it, if so whether they are entitled for permanent injunction.
18. On behalf of the plaintiff, PW.1 the Managing Trustee was examined and marked Exs.A1 to A37. The crucial documents are Exs.A1, A8, A9, A16, and A20 to A37. Ex.A1 is the original sale deed dated 24.12.1983. Ex.A8 is the original sale assets publication dated 31.03.1973. Ex.A9 is the original photos with negatives. Ex.A16 is the certified copy of order of High Court dated 22.11.1998. Exs.A20 to A37 are the certified copies of pahanies for the years 1992 to 2012. Ex.A1 is the sale deed under which suit schedule lands were conveyed by the Official Liquidator in favour of the appellant Trust 25 pursuant to the orders passed under Ex.A16. Exs.A20 to A37 for the period 1992-2012 goes to show that the name of the Trust was recorded in the revenue records as pattadar and possessor. He claimed that the plaintiff is in possession and enjoyment and running the college. PW.2 is one of the Trustees of the plaintiff Trust and supports the evidence of PW.1 and reiterated the averments made in the plaint claiming possession over the suit lands. PWs.3 to 5 are independent witnesses who spoke about possession and enjoyment of the plaintiff Trust.
19. On behalf of the defendants, defendant No.1 was examined as DW.1 and Exs.B1 to B48 were marked. DW.1 reiterated in his chief examination the contents of the written statement, however in cross- examination he states that there is no Porcelain Factory which is also called as Cheeni company at Tandur. He denies the existence of the factory to his knowledge and further denies that the said factory went into liquidation. He states that he is not aware that the Official Liquidator has handed over the said property to the plaintiff on 13.11.1973, which is a crucial factor as he did not deny the handing over the possession by the Official Liquidator to the plaintiff Trust. He admits that as per Ex.B1 that Cheeni company is in possession of the suit property. Ex.B1 is certified copy of khasra pahani for the year 1954-55. He states that they came to know about the 26 proceedings in OP 4 of 1959 in the year 1989. He further states that his father was also not aware of the OP proceedings and denies the filing of suit by his father in O.S No.23 of 1984 on 25.11.1982 on the file of Sub-Judge, Vikarabad against the Peoples Degree College run by the plaintiff Society. He further denies that his father withdrawn the said suit on 15.07.1987. In cross-examination, he admits that they are not cultivating the suit lands nor cultivated the same at any time and further states that they are lying barren. He denies the fencing of the lands by the plaintiff and claims that they have fenced and on further question he admits that they have not pleaded in the written statement about the fencing. He further admits that as per Ex.B1 to B11, pahanies, the plaintiff's name was shown as the owner of the suit schedule property. He denies the suggestion that they have interfered into the suit land on 23.06.2012.
20. The crucial aspects and admissions in cross-examination of DW.1 are that he did not deny the handing over of possession to the plaintiff by the Official Liquidator except expressing his ignorance. Admission of possession of Cheeni company in suit schedule property as per Exs.B1 to B11 filed by them show that the plaintiff is in possession of the suit schedule properties and further they are not cultivating the said land nor cultivated the same at any time and they are lying barren. It is evident from Ex.B1 certified copy of kasra 27 pahani for the year 1954-55, Ex.B2 certified copy of sessala pahani for the years 1955-58 and Exs.B3 to B6 pahanis for the years 1964 to 1968 which clearly go to show that the name of Cheeni company was incorporated in possessor column as possessor. Therefore, it clearly goes to establish that neither Mir Mohd. Ali Khan nor the defendants were ever in possession of the said lands right from 1954-55 onwards as claimed by them. Even otherwise, according to DWs, their father came to know about the liquidation proceedings in the year 1989, but they never challenged liquidation proceedings or the sale deed executed in favour of the appellant trust. The other document heavily relied on by the defendants is that Ex.B33 certified copy of order dated 16.09.2003 passed by the Joint Collector, wherein he set aside mutation proceedings of the plaintiff trust holding that as per clause 6 of sale deed under Ex.A16 does not confer any warranty or guarantee with regard to title and possession and on that basis the Joint Collector allowed the revision and directed to mutate the names of the respondents. After lapse of 9 years of passing of the said order under Ex.B34 by an order dated 11.01.2012 the Tahsildar, Tandur granted succession in favour of the defendants and issued pattadar passbooks and title deeds on the very same day. The said proceedings are stated to be issued without any notice and opportunity to the appellant trust and the same was 28 challenged before this Court in W.P.No.17376 of 2012, which is pending adjudication. For the first time pattadar passbooks were issued on 11.01.2012 in favour of the defendants and accordingly their names were recorded, which is just few months before filing of the suit. The same were marked as Exs.B36 to B48 and same are the subject matter of the said Writ Petition, as such no credence can be given to it as they are disputed entries.
21. The trial Court merely looked the name of Mir Md. Ali Khan as pattadar in pattadar column, but did not look into the possession column wherein Cheeni factory was incorporated as possessor. The mutation proceedings were issued only in the year 2012 for the first time under Exs.B33 and earlier no pattadar passbooks either in the name of Mir Mohd. Ali Khan or in the name of the defendants were issued at any point of time. In fact, in the proceedings before the RDO which are under Ex.B30 to which the defendants' father was a party wherein it was specifically referred that he has filed a suit earlier for perpetual injunction and the same was withdrawn and thereafter no suit is filed. Thus, it is clear that the defendants are not in possession of the suit land. Therefore, the findings of the trial Court is erroneous. It is well settled law that in a suit for perpetual injunction title to be gone into incidentally, however the trial Court grossly erred in holding that the plaintiff failed to establish its title 29 and possession over the suit schedule property. The orders under Ex.A16 is binding on trial Court as well as quasi judicial authorities. A categorical finding was recorded by the High Court under Ex.A16 holding that for the last 35 years M/s Deccan Porcelain and Potteries Limited is in possession and subsequently the appellant trust is in possession of the suit schedule property on the basis of reports submitted by the Commissioner appointed by the High Court. Therefore, the finding of the trial Court that the plaintiff has failed to place any material to show that the actual possession was delivered to them by the Official Liquidator is quite contrary to the findings of the High Court as well as the documents filed by the appellant Trust. The trial Court also erred in declaring that the defendants are owners and pattadars purely on the basis of pattadar pass books and title deeds which are of the year 2012. If the trial Court considered names in possessory column of Exs.B1 to B7 and Exs.A19 to A37 in a proper perspective, ought to have come to a definite finding that the plaintiff is in possession and enjoyment of the suit schedule property. The trial Court also failed to consider Ex.B34 which is issued in the year 2012 and pattadar passbooks were also issued on the very same day and further Joint Collector has no authority to misinterpret the orders of the High Court with regard to clause 6 that the warranty or guarantee of Sale Deed pursuant to the orders 30 passed in Ex.A16. The Court below failed to understand the purport of the said clause.
22. It is well settled law that the revenue entries do not confer any title. The incorporation of clause with regard to warranty or guarantee is made since the Official Liquidator is executing the sale deed on behalf of company and further the sale deeds executed by the Official Liquidator in the official capacity and individually he is executing a private property stands on different footing. The said clause was incorporated with an intention that the purchaser cannot claim any diminution against the official Liquidator in the event of any third party claims and that does not mean that no title and possession is conveyed in favour of the purchaser by the Official Liquidator.
23. In fact, the trial Court also not considered the photographs which are marked as Ex.9 which clearly show that the land is fenced by the plaintiff and the buildings which show that the Peoples Degree College is in possession and enjoyment of the same. In fact, the same is not even looked into by trial Court. Thus, it is crystal clear from Exs.A1, A9, A16 and A20 to A37 and Exs.B1 to B7, which clearly go to show that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit. 31 Since the sale deed executed by the Official Liquidator pursuant to the orders of the High Court under Ex.A16, it is for the defendants to question the said proceedings before a competent Court, but clause 6 of the sale deed with regard to without any warranty or guarantee does not take away right of the appellant Trust. The fact that the name of Mir Md. Ali Khan was recorded in pattadar column, but not in possessor columns and in fact in possessor column it was recorded the name of Cheeni factory all along. Therefore, the findings of the trial Court declaring the defendants as owners and possessors merely on the basis of revenue entries in pattadar column does not deserve any merit and the said findings are liable to be set aside as the same is in violation of the well settled principles of law as set out by the Hon'ble Supreme Court. It clearly establishes from Exs.A1, A9, A16 and A20 to A37 and Exs.B1 to B7 coupled with oral evidence of P.Ws.1 to 5 that the appellant trust is in possession of the suit schedule lands. Further DW.1 in his cross examination admitted that they never cultivated the same. On re-appreciation of oral and documentary evidence, this Court is of the opinion that trial Court went wrong in considering the oral and documentary evidence in proper perspective and misinterpreted the same without following the well established principles of law. Therefore, the judgment of 32 trial Court is liable to be set aside and the suit filed by the appellant trust deserves to be decreed as prayed for.
24. The impleading petitioners have filed impleadment petitions in I.A.No.1 of 2015 and I.A.No.6 of 2020 as they are the trustees of the Vidya Vikas Samithi as per Ex.A6 original deed of trust dated 16.05.1994. Exs.A5 andA6 trust deeds were constituted Vidya Vikas Samithi, but Ex.A7 i.e., deed of reconstitution of trust dated 13.01.2012 was constituted by the Managing Trustee and the same is under dispute and subject matter of O.P No.2 of 2013 which is pending adjudication for trial before the Sub-Court at Vikarabad. That as per the trust deed dated 16.05.1994 which was reconstituted by Vidya Vikas Samithi Society vide deed of trust bearing No.4880194 is consisting of (1) N. Manik Rao, Managing Trustee, (2) NrayanaRao Mudalli, (3) P. Uttamchand, (4) Sashiprabha Manikrao and (5) Parvatappa Korvar as Ex-Officio Trustees. The president of Samithies is the ex-officio trustee. Therefore, the impleading petitioners namely M. Ramesh, President of Vidya Vikas Samithi and P. Uttamchand, Member Trustee and also Secretary of Vidya Vikas Samithi have filed separate applications to implead themselves and the suit was filed by the appellant trust is the creation of the Samithi under the Societies Registration Act and they are supporting the claim of the appellant trust by contending that 33 they are running colleges in the suit lands. Therefore, they are necessary and proper parties. They are also relying on the very same documents. Therefore, it is just and necessary to implead them as parties to the case and by allowing the impleadment petitions, no prejudice would be caused either to the plaintiff or to the respondents/defendants. The said applications are accordingly ordered.
25. The appellant and impleading petitioners relied upon the following judgments in support of their contentions:
In Smt. Bhimabai Mahadeo Kambekar (D) Th.LR v. Arthur Import and Export Company3, the Apex Court held as under:-.
"This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. "
In United Bank of India v. the Official Liquidator4, the Apex Court held as under:-
"14. When the Official Liquidator sells the property and assets of a company in liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in 3 2019 AIR (SC) 719 4 (1994) 1 SCC 575 34 liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98 lakhs."
In Nagar Palika, Jind v. Jagat Singh, Advocate on Record5 the Apex Court held as under:-.
" In any case, an order of mutation in the name of the respondent in the revenue records cannot be a source of title. In the case of Nirman Singh v. Lal Rudra Partab Narain Singh [AIR 1926 PC 100 : 53 IA 220] , in respect of mutation of names in revenue records, it was said:
"They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.
It is little less than a travesty of judicial proceeding to regard the two orders of the Extra Commissioner of Bahraich 5 (1995) 3 SCC 426 35 and Mr M.L. Ferrar, Deputy Commissioner, as judicial determinations expelling proprio vigore any individual from any proprietary right or interest he claims in immovable property."
In Suraj Bhan v. Financial Commissioner6, the Apex Court held as under:-
"It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC 1653] ). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
In Haryana Financial Corporation v. Rajesh Gupta7, the Apex Court held as under:-
"The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself".
6 (2007) 6 SCC 186 7 (2010) 1 SCC 655 36 In Union of India v. Vasavi Coop Housing Society Limited8, the Apex Court held as under:-
"21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah [(1989) 3 SCC 612] this Court held that: (SCC p. 615, para 5) "5. ... It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."
In Guru Amarjit Singh v. Rattan Chand [(1993) 4 SCC 349] this Court has held that: (SCC p. 352, para 2) "2. ... that entries in the Jamabandi are not proof of title."
In State of H.P. v. Keshav Ram [(1996) 11 SCC 257] this Court held that: (SCC p. 259, para 5) "5. ... an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs."
22. The plaintiff has also maintained the stand that their predecessor-in-interest was the pattedar of the suit land. In a given case, the conferment of patta as such does not confer title. Reference may be made to the judgments of this Court in Syndicate Bank v. APIIC Ltd. [(2007) 8 SCC 361] and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu [1991 Supp (2) SCC 228] ."
In Bhimavarapu Laxma Reddy v. Pallothu Aswini Kumar9, this Court held as under:-
8
(2014) 2 SCC 269 37 "The law is also well settled that entries in revenue records either pursuant to mutation or without mutation also do not confer title. The view of this Court finds support from a decision in Suraj Bhan and others v. Financial Commissioner and others10 wherein it was held as follows:
"It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only fiscal purpose i.e., payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil Court vide Jattu Ram v. Hakam Singh and others [MANU/SC/0399/1994 : AIR 1994 SC 1653].
The Supreme Court in several judgments has held that the revenue records do not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another MANU/SC/0147/1989 : (1989) 3 SCC 612 the Supreme Court held that It is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law. In Guru Amarjit Singh v. Rattan Chand and others [MANU/SC/0065/1994 : (1993) 4 SCC 349] the Supreme Court has held that the entries in jamabandi are not proof of title. In State of Himachal Pradesh v. Keshav Ram and Ors. [MANU/SC/0543/1997 : (1996) 11 SCC 257] the Supreme Court held that the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."
9 2015 (5) ALD 500 10 (2007) 6 SCC 187 38 In Penumarthy Veera Panasa Ramanna v. Penumarthy Sambamoorthy11 this Court held as under:-
"In our view, the entries in the revenue records, though they may be relevant evidence under Section 35 of the Evidence act, are not evidence of title."
In Mandava Krishna Chaitanya v. UCO Bank, Hyderabad12 this Court held as under:-.
"In United Bank of India v. Official Liquidator (1994) 1 SCC 575, the Supreme Court held that an official liquidator does not provide any guarantee and/or warranty in respect of the immovable property sold by him and the purchaser is not entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to encumbrances, liens and claims. It was further observed that it is for the intending purchaser to satisfy himself in all respects as to title, encumbrances, and so forth of the immovable property that he proposes to purchase and he cannot, after having purchased the property on such terms, then the claim diminution of the price on the ground of defect in title or description of the property."
In Rame Gowdab (Dead) by Lrs v. M Varadappa Naidu (Dead) by Lrs. and another13 the Apex Court held as under:-. 11 AIR 1961 AP 361 12 2018 (3) ALD 266 (DB) 13 (2004) 1 SCC 769 39 "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a Judge in his own cause."
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. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions."
26. The learned Counsel for the respondents/defendants relied upon the following Judgments delivered by the Hon'ble High Court and Hon'ble Supreme Court:-
In Emmam Jagan Mohan Reddy v. Kessari Padma14, this Court held as under :-
" Since the suit is one for perpetual injunction, prima facie title and possession of the plaintiff is to be looked into. Also since the subject matter is a vacant site, possession follows title".
Mere fact that the property was purchased pursuant to an auction held by the Official Liquidator in the winding up proceedings does not confer any title on the Plaintiff".
In Ahmedabad Municipal Corporation v. Haji Abdulfagur15 the Supreme Court held as under:-
14
2014 (3) ALT 217 15 (1971) 1 SCC 757 40 " To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor (let the purchaser beware) applies to the purchaser."
In Raghunath Pradhani v. Damodra Mahapatra and others16 the Supreme Court held as under:-
"It is elementary that what can be brought to sale in a court sale is the right, title and interest of the Judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest...."
In United Bank of India v Official Liquidator17, the Supreme Court held as under:-
"When the Official Liquidator sells the property and assets of a company in liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property".
16
(1979) 1 SCC 508 17 (1994) 1 SCC 575 41 In Govindammal v. Vaidyanathan18, the Supreme Court held as under:-, "10. Be that as it may, since Chokalingam was the judgment-debtor, at most only his share in the property could be sold and it is not open for the purchaser to contend that he purchased the entire property though only 50% of the property belonged to the judgment debtor. The purchaser cannot get a higher right, title or interest in the property than what vested with the seller. Ultimately, the purchaser takes the risk, if he purchases the property which does not belong to the judgment-debtor. The purchaser at an auction sale takes the property subject to all the defects of title, and the doctrine of caveat emptor (let the purchaser beware) applies to such a purchaser. Therefore, even assuming that the court auction-sale was held in respect of the entire property, it cannot be said that such sale was valid to the entire extent. At most, it can be said that it was valid to the extent of the property which was owned by the judgment-debtor i.e., Mr. Chokalingam i.e., 1.36 out of 2.72 acres. The remaining 50% i.e., Schedule 'A' Property was owned by Narayanaswamy Mudaliar and his legal representatives.
The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court-auction. Secondly, by virtue of auction-sale, the purchaser would get only the share vested with Chokalingam inasmuch as Chokalingam alone was the judgment-debtor. The property which is not 18 (2019) 17 SCC 433 42 owned by the judgment-debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued in respect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property."
In Jharkhand State Housing Board v. Didar Singh19, the Supreme Court held as under:-
"It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
27. The counsel for the respondents also relied upon the Judgments in (1) Premji Ratansey Shah v. Union of India20, (2) Saygo Bai v. Chueeru Bajrangi21, (3) Balakrishna v. balakrishna22, (4) Surender Joshi v. Chennupati Krishna23, (5) Mallesh Yadav v. K Sri Ram Reddy24, (6) Ghanshyam Das v. Om Prakash25 and Sidharthan v. Thankamani26, which are not relevant to the present 19 (2019) 17 SCC 692 20 (1994) 5 SCC 547) 21 (2010) 13 SCC 762) 22 2019 SCC Online SC 135 23 2019 (4) ALD 75 24 2019(6) ALD 327 25 1993(3) SCC 368, (7) 26 2013 (3) KLJ 68 43 case, as the facts and circumstances in the said cases are entirely different and distinct from the facts and circumstances of the case on hand.
28. In view of the aforesaid legal position, and on analysis of oral and documentary evidence, it is clear from Exs.A.1 to A.9, A.16, A.20 to A.37, and Exs.B.1 to B.37 that the plaintiff and its predecessor-in- title are in possession and enjoyment over the suit schedule property. Though the defendants claimed their possession and title, but they failed to place any cogent and convincing evidence except harping on Exs.B.36 to B.48 which are pattadar passbooks and title deeds issued in pursuant to the proceedings dated 11.01.2012 under Ex.B.34. The said Exhibits show that the same were issued simultaneously on the date of orders passed by the Tahsildar under Ex.B.34, and B.48 is the patta for the year 2012-13 and the said pahani also issued in pursuant to the orders under Ex.B.34 and all are of the same year of 2012. Therefore, in the absence of placing any earlier pahanis to show their possession, it cannot be accepted that the defendants were in possession of the suit schedule property and admittedly the plaintiff disputed the same which is subject matter of W.P.No.17376 of 2012. The learned Counsel for respondents 1 to 6 heavily relied on Ex.B.33, the proceedings of the Joint Collector, dated 16.09.2003, wherein he set aside the proceedings dated 44 17.03.1991 passed by the Revenue Divisional Officer, Vikarabad, under Ex.B.30. The Joint Collector relying on clause 6 of the sale deed held that on the principle that 'no man can transfer better title than what he has' and further held that Mir Mohammed Ali Khan is the pattadar, who is not a party to the registered sale deed and therefore, it is not binding on him. The Joint Collector failed to read clause 6 of the sale deed in its entirety and in the first part of the limb, all the right, title, interest and possession was conveyed to the purchaser and in the second limb, it was stated that the sale will be without any warranty or guarantee and shall be without any liability on the part of the Official Liquidator. The said clause is incorporated only in the event of any claim made by third parties at a future date, the Official Liquidator is not liable and purchaser shall not claim any diminution in the property as held by the Hon'ble Supreme Court in (1994) 1 SCC 575, United Bank of India vs. Official Liquidator. The defendants further claimed that as per Exs.B.1 to B.7, Mir Mohammed Ali Khan name was shown as pattadar and contended that he is a rightful owner and possessor of the suit schedule land. It is evident from said Exs.B.1 to B.7, the name of "Cheeni Factory" i.e., M/s. Deccan Porcelain and Potteries Limited, was shown in possessory column. Therefore, the claim of the possession by the defendants falsifies their claim of possession. Further, D.W.1 45 admitted in cross-examination that they never cultivated the suit lands. It is well settled law by the Hon'ble Supreme Court in catena of decisions that the revenue entries do not confer any title. As stated above, the plaintiff could be able to establish its possession over the suit schedule property by way of oral and documentary evidence. The Trial Court without considering the oral and documentary evidence in proper perspective, more particularly with regard to Ex.A.16, wherein it was specifically recorded that the plaintiff was in possession of the suit schedule land and earlier to that, "Cheeni Factory" i.e., M/s. Deccan Porcelain and Potteries Limited, was in possession of the same for the last 35 years. The said findings and observations under Ex.A.16 are binding on the Court below. The Court below also failed to consider the purport of the clause 6 of the sale deed in proper perspective and relying on the order of the Joint Collector, Ex.B.33, holding that the name of Mir Mohammed Ali Khan was recorded as pattadar and, therefore, dismissed the suit without looking into the possessory column in Ex.B.1 to B.7 wherein the name of the Cheeni Factory was recorded. The Trial Court also without framing the issue with regard to title decided the title of the defendants, which is unsustainable in law.
29. Therefore, for the reasons stated above, the trial Court committed grave error of law without properly evaluating the 46 evidence and holding that the plaintiff failed to prove its possession over the suit schedule property. Hence, the Judgment under Appeal suffers from material irregularity and patent error of law and hence liable to be set aside.
30. I.A.No.1 of 2020 is filed by one Mr.Nayeem Khan, S/o late Ameer Khan, claiming that he is the GPA holder of one of the sons of Mir Mehdi Ali Khan in his individual capacity. As the legal heirs of Mir Mehdi Ali Khan are not parties to the proceedings, the GPA claiming through one of them cannot be impleaded in this Appeal. Further, the GPA holder has filed the petition in his individual capacity, not through the person who executed the GPA in favour of the impleading petitioner.
31. Further, the inter se claims, if any, between the legal heirs of Mir Mehdi Ali Khan @ Mehdi Jung Bahadur to be settled in a separate forum not in a suit filed by the appellant Trust. Therefore, the impleading petitioner is neither necessary nor a proper party, more particularly, he filed the same in his individual capacity, but not on behalf of the legal heirs of Mir Masood Ali Khan. Therefore, the Interim Application No.1 of 2020 is hereby dismissed.
32. As stated above, the interim applications, i.e., I.A.No.1 of 2015, and I.A.No.6 of 2020, seeking impleadment are hereby allowed. 47
33. In the result, the Appeal Suit is allowed, setting aside the impugned Judgment and Decree passed in O.S.No.9 of 2012, dated 25.11.2014, by the Additional District Judge, Vikarabad, Ranga Reddy District. Consequently, perpetual injunction is granted in favour of the appellant/plaintiff restraining the respondents/ defendants from interfering with its peaceful possession and enjoyment over the suit schedule land. There shall be no order as to costs.
Miscellaneous petitions, if any, pending, shall stand closed.
_____________________ JUSTICE G.SRI DEVI 23.02.2021 Gsn/gkv 48