HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.421 OF 2020
JUDGMENT:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is preferred against the order dt.11.02.2020 passed in I.A.No.503 of 2019 in O.S.No.231 of 2016 of the III Additional District Judge, Ranga Reddy District at L.B.Nagar.
2. The appellant is the plaintiff in the suit.
3. He filed the said suit against the respondent to declare that he is the absolute owner and peaceful possessor of the suit schedule property and for a consequential relief to declare the registered gift settlement deed bearing Document No.9607 of 1987 dt.24.07.1987 as not binding on him and for perpetual injunction restraining the respondent and his men from interfering into the suit schedule property.
4. The suit schedule property is agricultural dry land of an extent of Ac.1.00 out of Acs.2.20 gts., in Sy.No.272/A of Turkayamjal Village, Hayathnagar Revenue Mandal, Ranga Reddy District within specified boundaries.
Case of the appellant
5. It is the case of the appellant that he purchased the suit schedule property under a registered sale deed Ex.P1 dt. 09.12.2015 from Mekala 2 Ram Reddy for valuable sale consideration and that since the date of purchase, he is in peaceful continuous possession and enjoyment thereof.
6. He contended that his vendor Mekala Ram Reddy had purchased the suit schedule property through a registered sale deed bearing Document No.4938 of 2008 dt.25.11.2008 from Pannala Ram Reddy and 14 others represented by their GPA holders A. Malla Reddy and S. Tulasi Das under registered GPA bearing Document No.45 of 2006 dt.01.06.2006; and after purchasing the suit schedule property, the vendor of the appellant got mutated his name in the concerned revenue records as pattedar and possessor vide Patta No.1159 and vide Proceedings No.B/4121/2015 dt.27.02.2016. He alleged that the appellant's name was mutated in the revenue records and pattadar passbook was also issued to him with Patta No.1464.
7. He also contended that in January 2016, to protect the suit schedule property from the land grabbers, he started construction of compound wall and a room over the suit schedule property, and at that time, the respondent, without having any manner of right and title tried to dispossess the appellant from the suit schedule property.
8. The appellant alleged that with the help of family members, he resisted the respondent, that then the respondent left the suit schedule property and the appellant made a police complaint before P.S. Vanastalipuram on 06.01.2016, but the police did not respond properly. 3
9. He alleged that again on 08.01.2016 the respondent came to the suit schedule property and tried to demolish the constructed compound wall of the appellant and on the very next date i.e., 09.01.2016, the appellant again lodged a police complaint, but the police did not register crime against the respondent.
10. He also contended that the respondent appears to have made a false complaint against him, registered as FIR No.20 of 2016 of P.S. Vanastalipuram, wherein the respondent himself admitted that the appellant constructed compound wall and a room over the suit schedule property and it clearly shows that the appellant is in peaceful possession and enjoyment of the suit schedule property.
11. He alleged that they got the matter enquired into and then came to know that the respondent, who is his neighbour, is trying to claim the suit schedule property under a Gift Settlement deed Doc.No.9609 of 1987 dt.24.07.1987, that the property of the respondent was located in Sy.No.272/AA and the respondent is not in possession and enjoyment of his property at any point of time, while the appellant's property is in Sy.No.272/A.
I.A.No.503 of 2019
12. Making same allegations the appellant filed I.A.No.503 of 2019 seeking ex parte ad interim injunction in his favour restraining the 4 respondent from interfering with his peaceful possession and enjoyment of the suit schedule property till the disposal of the suit. Counter filed by the respondent in I.A.No.503 of 2019
13. The respondent filed counter affidavit in I.A.No.503 of 2019 stating that the appellant had earlier filed I.A.No.210 of 2016 in the main suit with same prayer, that the said I.A. was heard at length and the same is still pending, and with the very same averments, the appellant has filed I.A.No.503 of 2019, and therefore I.A.No.503 of 2019 is not maintainable.
14. He also contended that the appellant's vendor Mekala Ram Reddy had filed O.S.No.603 of 2015 on the file of the Principal Senior Civil Judge, Ranga Reddy District to grab the suit schedule property from the respondent and during the pendency of the suit, Ex.P1 registered sale deed was executed in favour of the appellant and the suit was got dismissed as not pressed on 02.03.2016.
15. According to him, the said suit O.S.No.603 of 2015 was filed seeking perpetual injunction restraining the respondent from interfering with the alleged peaceful possession and enjoyment of the vendor of the appellant over the suit schedule property and for a mandatory injunction directing removal of illegal and unauthorised compound wall raised on the northern and southern sides of the suit schedule property. 5
16. It is alleged that the appellant is fully aware of the pendency of O.S.No.603 of 2015 when he purchased the suit schedule property under Ex.P1 dt.09.12.2015 and that the property mentioned in the said sale deed and also in the plaint schedule does not exist within the boundaries indicated.
17. It is contended that there was no 100 feet wide road leading to Brahmanapalli Village as southern boundary and cold storage plant as eastern boundary.
18. It is contended that the respondent's predecessor-in-title and brother P. Yadaiah had obtained the suit schedule property under a registered sale deed bearing Document No.6768 of 1980 dt.08.07.1980, and the suit schedule property was gifted to the respondent under registered gift settlement deed bearing Document No.9609 of 1987 dt.24.07.1987 and the boundaries shown therein tally with the boundaries existing on the site.
19. It is alleged that the Registering Authority should not have entertained sale deed dt.25.11.2008 in favour of the vendor of the appellant since the vendor did not retain any such property by that date having already sold his available land of Acs.2.00 in Sy.No.272 to Yadaiah, the donor of the respondent, under registered sale deed dt.08.07.1980. He also contended that any mutation in revenue records and issuance of pattadar passbook by revenue authorities basing on the 6 document produced by the appellant would not confer any title or right on the vendor of the appellant or on the appellant; and according to him, all these proceedings had been issued by the revenue authorities behind the respondent's back and that of his predecessors-in-title.
20. It is alleged that the respondent had constructed compound wall around the suit schedule property much prior to 09.12.2015 itself and for demolition of the same, the vendor of the appellant had instituted O.S.No.603 of 2015 and he had also filed I.A.No.510 of 2015 seeking ad interim injunction which was dismissed on merits on 11.08.2015 and thereafter Ex.P1 sale deed dt.09.12.2015 was brought into existence and the suit was then withdrawn on 02.03.2016.
21. The respondent denied that the appellant had started construction of compound wall over the suit schedule property in January, 2016 and that the respondent had attempted to dispossess the appellant and demolish the compound wall constructed by the appellant.
22. The respondent denied that the appellant was in physical possession of the suit schedule property after 09.12.2015 or 09.01.2016 or on the date of filing of the suit.
23. He alleged that he has been in possession of the suit schedule property from 24.07.1987 and his predecessor was in possession and enjoyment of the property from 08.07.1980 as he acquired rights by way of a registered sale deed on that date. He also claims that he was issued 7 Occupancy Rights Certificate by the Revenue Divisional Officer, Ranga Reddy District on 08.04.1996.
Reply affidavit filed by the appellant
24. After denying the allegations levelled against him by the respondent, the appellant in the reply affidavit contended that for an extent of Acs.11.10 gts., in Sy.No.272, Smt. Gopamma and Ragamma were recorded as Inamdars and a Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 was issued by the concerned Revenue Authority in favour of Pannala Lingaiah in respect of this land and also other lands in Sy.Nos.271 and 273 of Turkayamjal Village.
25. It is contended that the legal heirs of the said protected tenant Pannala Lingaiah executed GPA on 01.06.2006 in favour of A. Malla Reddy and S. Tulasi Das in respect of Acs.6.00 in Sy.No.271, Acs.2.20 gts. in Sy.No.272, and Acs.11.11 gts., in Sy.No.273 of Turkayamjal Village.
26. According to the appellant, the GPA holders representing the legal heirs of Pannala Lingaiah executed registered sale deed dt.25.11.2008 in respect of Ac.1.00 out of Acs.2.20 gts. in Sy.No.272 of Turkayamjal Village in favour of Mekala Ram Reddy; and Mekala Ram Reddy then sold it to the appellant under Ex.P1 dt.09.12.2015. He also claimed that 8 he was put in possession of the schedule property by his vendor on the date of execution of the registered sale deed in his favour.
27. The appellant contends that though the respondent has taken a plea that his donor Yadaiah purchased the suit schedule property under registered sale deed dt.08.07.1980 from the legal heirs of Gopamma, such sale deed would not confer any title to the suit schedule property. According to him, there is discrepancy between the schedule of property mentioned in the gift deed dt.24.07.1987 and the plan appended thereto.
28. He also alleged that he came to know about O.S.No.603 of 2015 filed by his vendor only after reading the counter affidavit filed by the respondent; and that the pleadings in that suit relate to the claim of easement rights of the vendor of the appellant and the dismissal of the said suit has no bearing on the instant suit.
The order dt.11.2.2020 in IA No.503 of 2019
29. In the Court below, the appellant marked Exs.P1 to P28 and the respondent marked Exs.R1 to R15.
30. By order dt.11.02.2020, the Court below dismissed I.A.No.503 of 2019.
31. After considering the contentions of the parties, the Court below observed that it is not able to appreciate why the vendor of the appellant did not pursue O.S.No.603 of 2015 but got it dismissed on 02.03.2016. 9
32. It also observed that whether the land claimed by the respondent and the appellant is one and the same would have to be considered at a later point of time and since the appellant had sought injunction, it is for him to make out prima facie case and balance of convenience.
33. It also referred to the dismissal of I.A.No.510 of 2015 in O.S.No.603 of 2015 and observed that its dismissal would show that the vendor of the appellant did not make out prima facie case and balance of convenience in respect of the suit schedule property and had also not chosen to challenge the said order in I.A.No.510 of 2015 before appellate authority.
34. On the basis of the above observations, the Court below then held that the very filing of O.S.No.603 of 2015 and dismissal of I.A.No.510 of 2015 would go to show that neither the appellant nor his vendor was in possession and enjoyment of the suit schedule property; that Ex.R6 Proceedings dt.08.04.1996 issued by the Revenue Divisional Officer show that the respondent is in possession and enjoyment of the land in Sy.No.272 of an extent of Acs.2.00; that the said Ex.R6 is much prior to Exs.P1 and P2 sale deeds of the appellant and his vendor, while Ex.R2 sale deed dt.08.07.1980 in favour of P. Yadaiah, i.e., donor of the respondent, is in respect of Acs.2.00 in Sy.No.272.
35. The Court below also observed that the pleadings of the parties show that there is a dispute with regard to identity of property and no 10 document is filed to show as to when Sy.No.272 was sub-divided ; and that the suit schedule property is part and parcel of the property covered by Ex.R2 sale deed dt.08.07.1980, Ex.R3 pattadar passbook and Ex.R6 Proceedings of the Revenue Divisional Officer dt.08.04.1996.
36. It also observed that Exs.P1 to P28 do not establish any prima facie case and balance of convenience is in favour of the respondent and not in favour of the appellant and the appellant did not approach the Court with clean hands.
The present CMA
37. Assailing the same, this Appeal is filed.
38. Heard Sri K.S. Murthy, learned counsel for the appellant and Sri Vedula Srinivas, learned counsel for the respondent.
39. From the pleadings of the parties, it is clear that the appellant is claiming title to the plaint schedule property under Ex.P1 registered sale deed dt.09.12.2015 executed in his favour by Mekala Ram Reddy. The said Mekala Ram Redy had obtained title to the property under Ex.P2 registered sale deed dt.25.11.2008 from Pannala Ram Reddy and 14 others through their GPA holders A. Malla Reddy and S. Tulasi Das (registered GPA dt.01.06.2006).
40. According to the appellant, there was a Certificate (Ex.P21) dt. 16.12.1975 issued under Section 38-E of the Andhra Pradesh 11 (Telangana Area) Tenancy and Agricultural Lands Act, 1950 in respect of an extent of Acs.17.21 gts., in Sy.No.271, Acs.11.11 gts., in Sy.No.273 and Acs.11.10 gts., in Sy.No.272 of Turkayamjal Village in favour of Pannala Lingaiah.
41. As per law, under this Certificate issued by the competent authority under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, title to the property had passed to the person mentioned therein, i.e., Pannala Lingaiah in respect of Ac.11.10 gts. in Sy.No.272 of Turkayamjal Village and other lands in Sy.Nos.271 and 273.
42. Also, Ex.P17 1-B RoR filed by the appellant shows that the appellant is in possession of Ac.1.00 of land in Sy.No.272/A as on 07.03.2016, just prior to filing of the suit on 8.3.2016.
43. Therefore, prima facie on the date of filing of the suit, the appellant, as per above revenue record is in possession of the suit schedule property.
44. Coming to the case of the respondent, they are claiming title to the suit schedule property on the basis of a Gift Settlement deed (Ex.R1) executed in his favour by P. Yadaiah on 24.07.1987. In that gift settlement deed, the property is described as Acs.2.00 in Sy.No.272 of Turkayamjal Village. The donor of the respondent is said to have 12 obtained the said land under registered sale deed (Ex.R2) dt.08.07.1980 from K. Srinivas Rao and others.
45. There is no mention in this sale deed as to how the vendors of the donor of the respondent obtained title to the suit schedule property.
46. But in the counter affidavit filed by the respondent, he claimed that an Occupancy Rights Certificate was issued by the Revenue Divisional Officer, Ranga Reddy District on 08.04.1996 in his favour (Ex.R6).
47. How such Occupancy Certificate could have been given in favour of the respondent when much prior thereto on 16.12.1975 there was a Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 issued in favour of Pannala Lingaiah for Ac.11.10 gts. in Sy.No.272 of Turkayamjal Village, is not explained by the respondent.
48. A reading of Ex.R6 dt.08.04.1996 suggests that the respondent's brother by name P. Yadaiah had purchased it from the legal representatives of the Inamdar Smt. Gopamma on 08.07.1980 and later Yadaiah had gifted it to the respondent on 24.07.1987.
49. When for Ac.11.10 gts. in Sy.No.272 Pannala Lingaiah, the protected tenant, had been given Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 on 16.12.1975, there was no title vesting in Smt. Gopamma or her 13 legal representatives to transfer title prima facie to P. Yadaiah, the brother of the respondent, and therefore the brother of the respondent could not have prima facie any title to land in Sy.No.272 of Turkayamjal Village to gift it under Ex.R1 dt.24.07.1987 to the respondent.
50. Thus, we are satisfied that the appellant has prima facie case as against the respondent and he was also in possession of the suit schedule property on the date of filing of the suit.
51. The Court below seems to have unnecessarily given undue importance to the filing of O.S.No.603 of 2015 by Mekala Ram Reddy, the vendor of the appellant, against the respondent for perpetual injunction, and the dismissal of I.A.No.510 of 2015 filed therein for temporary injunction.
52. It also seems to have misread the order passed on 11.08.2015 in I.A.No.510 of 2015 in O.S.No.603 of 2015 (Ex.R10). In the said order, the Principal Senior Civil Judge, Ranga Reddy District observed merely that the photographs filed by the appellant's vendor show that the land is open land without any construction and so also was the property of the respondent, and easementery rights of air and light are prescriptive rights, and the appellant's vendor has to prove acquisition of the said rights for the prescribed period. There is no mention therein about lack of possession and enjoyment of the appellant's vendor. The above finding as recorded by the trial court also contradicts the claim of the respondent 14 of constructing a compound wall around Acs.2.00 gts. of land and possessed by him as stated in para no.4 in Written Statement filed in O.S.No.603 of 2015.
53. But the Court below in para 20 proceeded as if there was a finding in I.A.No.510 of 2015 about lack of possession and enjoyment of the schedule property by the appellant's vendor.
54. That apart, the Court below gave undue importance to Ex.R6 dt.08.04.1996 issued by the Revenue Divisional Officer granting Occupancy Rights to the appellant and ignored totally, without giving any valid reason, Ex.P21 Certificate under Section 38-E of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 issued long prior thereto on 16.12.1975 to Pannala Lingaiah.
55. The finding of the Court below that there is no document filed to show when Sy.No.272 has been sub-divided is also, in our opinion, not proper because such information would come during the course of trial when the Revenue Authorities are examined.
56. But prima-facie, Ex.P22, the Pahani for 2003-04 shows that there was a sub-division of Sy.No.272 into Sy.No.272/A and Sy.No.272/AA from 2003-04 onwards and it appears from the revenue record that the name of the respondent is recorded in respect of Sy.No.272/AA as pattedar and possessor, while the names of Pannala Ram Reddy and others, who are vendors of the appellant's vendor under registered sale 15 deed dt.25.11.2008, are recorded as owners and possessors of the land in Sy.No.272/A.
57. Therefore, though there may be an issue about identity of the suit schedule property, i.e., whether both parties are claiming the same parcel of land or that their lands are different, that does not mean that the appellant should be denied temporary injunction as sought.
58. Merely because an earlier Application for temporary injunction filed by the appellant, i.e., I.A.No.210 of 2016 in the same suit was not taken up by the Court below for whatever reason, the appellant cannot be left remediless and at best the said I.A. could be permitted to be withdrawn by the appellant since I.A.No.503 of 2019 is now decided. It cannot be said that the appellant had suppressed the filing of IA No.210 of 2016, because the record of the very same suit would disclose the filing of IA No.210 of 2016.
59. We do not appreciate the action of the Court below in not at all discussing Exs.P1 to P28 and straight away giving a finding that they do not establish any prima facie case in favour of the appellant, and that the claim of the appellant has to be gone into during trial.
60. In this view of the matter, order dt.11.02.2020 in I.A.No.503 of 2019 in O.S.No.231 of 2016 of the III Additional District Judge, Ranga Reddy District at L.B.Nagar is set aside; and the said I.A. is allowed. 16
61. Accordingly, the CMA is allowed. No costs.
62. Pending miscellaneous petitions, if any, in this CMA shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 02-06-2021 Svv