Telangana High Court
S. Mohan vs M/S. Lahari Infrastructure Private ... on 3 July, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CIVIL MISCELLANEOUS APPEAL No.455 & 456 of 2023
COMMON JUDGMENT:
These Civil Miscellaneous Appeals are filed against the Order dated 20.07.2023 in I.A.Nos.194 & 234 of 2023 in O.S.No.61 of 2023, passed by the learned Additional Senior Civil Judge, Medchal-Malkajgiri District, Medchal.
2. Respondent No.1 herein represented by its authorized signatory has filed an application in I.A.No.194 of 2023 in O.S.No.61 of 2023, for grant of temporary injunction against the petitioners and respondent No.2 and restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. They have also filed another application in I.A.No.234 of 2023 in O.S.No.61 of 2023, for grant of temporary injunction against petitioners from alienating or creating third party interest over the suit schedule property in any manner whatsoever during the pendency of the main suit. The trial Court considering the arguments of both sides, allowed both the applications. Aggrieved by the said Order, respondents therein preferred the present Civil Miscellaneous Appeals. 2
3. Initially, respondent No.1 herein has filed the suit in O.S.No.61 of 2023, against petitioners and respondent No.2, seeking permanent injunction and to declare the sale deed, rectification deed, gift deed and development agreement cum General Power of Attorney as null and void. During the pendency of the said suit, injunction petitions are filed by respondent No.1. Respondent No.1/plaintiff in the suit stated that they are the absolute owners and possessors of the land admeasuring 3025 Sq.yrds (comprising of 1815 Sq.yrds and 1210 Sq.yrds in Sy.No.151), situated at Bachupally Village and Mandal, Medchal Malkajgiri District. Initially one Mohammadi Begum, Mir Akbar Ali, Mir Jahangir Ali, Shoukat begum, Mir Sajjid Ali, Mir Abid Ali, Mir Nazir Ali and Khadija Begum (represented by their mother and natural guardian Mohammadi Begum), executed a registered sale deed on 08.01.1969, vide document No.20 of 1969, in favour of one K.Raja Reddy, K.Venkat Reddy, K.Bal Reddy and K.Parma Reddy (all are sons of one K.Bhadra Reddy), conveying land admeasuring Acs.154-02 gts, situated at Bachupally Village, Medchal Taluq, Hyderabad District.
4. They further stated that on 24.07.1989, the legal heirs of K.Raja Reddy, as group D-1, K.Parma Reddy along with his 3 daughters and grandson as group D-2, K.Venkat Reddy along with his sons and grandson K.Peda Bhadra Reddy as group D-3 and K.Bal Reddy along with his sons as group D-4, executed an agreement by entering into family partition/settlement between them into four equal shares out of larger extent and Group D1, D3 and D4 got Acs.38-00 gts and Group D2 got Acs.38-02 gts. The said partition was confirmed by the learned II-Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar in I.A.No.1825 of 2002 in O.S.No.660 of 1999 and also in arbitration O.P.No.327 of 2013. By virtue of the said partition, the vendors' of their vendor acquired entire extent of land admeasuring Acs.14-31 gts in Sy.No.151 of Bachupally Village.
5. Respondent No.1/plaintiff further stated that K.Seetharam Reddy, having acquired title along with his son K.Raja Reddy, executed registered sale deed dated 07.10.2002, vide document No.8543 of 2002, measuring an extent of Acs.5-00 gts out of Acs.14-31 gts in favour of Sukhavasi Radha Krishna and Sukhavasi Kamala Kumari, who are vendors of their vendor. Subsequently, Sukhavasi Radha Krishna and Sukhavasi Kamala Kumari, executed registered sale deed dated 15.03.2013 vide document No.6810 of 2013, in favour of M/s.Nakhat Real Estate Private Limited, represented by its 4 Managing Director Hanumammal Nakhat, to an extent of Ac.1-21 gts out of Acs.5-00 gts in Sy.No.151. Thereafter, M/s.Nakhat Real Estate Private Limited filed an application before the Special Grade Deputy Collector and Revenue Divisional Officer, Malkajgiri Division, Ranga Reddy District, for conversion of land from agriculture to non-agricultural usage in respect of land admeasuring Ac.1-21 gts in Sy.No.151 and the same was approved by R.D.O, vide proceedings No.L/1706/16. Later, M/s.Nakhat Real Estate Private Limited, executed two registered sale deeds vide documents No.8442 of 2016 and 10298 of 2018 dated 13.10.2016 and 08.05.2018, for an extent of 1815 Sq.yrds and 1210 Sq.yrds respectively, in their favour. From the date of purchase, they are in peaceful possession and enjoyment of the property admeasuring 3025 Sq.yrds by erecting blue sheets and it is not encumbered nor parted in respect of the above said land. The original photographs of the suit schedule property are filed before the Court.
6. The respondent No.1/plaintiff further stated that in view of the above sale deeds, they became absolute owners of the land admeasuring 3025 Sq.yrds and it was referred as suit schedule property. On 17.02.2023, the henchmen of the petitioners No.6 and 7 herein tried to interfere with their 5 peaceful possession of the suit property and their workers resisted their acts. The employees of respondent No.1's Company also tried to lodge complaint against petitioners No.6 and 7, but P.S.Bachupally, denied to take complaint as it is a dispute of civil in nature and thus they approached the Advocate for legal opinion and it was informed that petitioners have no right, title or interest over the suit land, as group-D3 of K.Venkat Reddy acquired Acs.38-00 gts of land as per the family partition dated 24.07.1989 and further on prior execution and after execution of the said agreement, they sold the entire land i.e., K.Venkat Reddy, along with his sons through General Power of Attorney executed the document bearing No.917 of 1989, K.Narsimha Reddy executed the registered sale deed bearing document No.9195 of 1993, dated 30.08.1993, K.Veera Reddy and K.Bhupal Reddy executed registered sale deed vide document No.9228 of 1993 dated 30.08.1993, K.Veera Reddy and K.Bhupal Reddy executed registered sale deed vide document No.9229 of 1993 dated 30.08.1993 and K.Bala Krishna Reddy executed registered sale deed vide document No.9230 of 1993 dated 30.08.1993. K.Venkat Reddy executed registered sale deed vide document No.1720 of 1996 dated 30.11.1996 and thus K.Venkat Reddy and his sons branch belongs to Group-D3 alienated land admeasuring Acs.38-20 gts, 6 which is in excess of their share of 1/4th share out of 4 shares purchased through sale deed vide document No.20 of 1969.
7. The respondent No.1/plaintiff also stated that respondent No.2 and petitioner No.3 can transfer only what they possess and they have no subsisting right, title, interest and possession of whatsoever in nature and hence the transaction made by respondent No.2 and petitioners No.3 in favour of petitioners No.1 & 2 and 4 to 7, was not valid as per the family partition/arrangement of agreement dated 24.07.1989. The respondent No.2 and petitioner No.3 have no land as their family members have alienated their share of land admeasuring Acs.38-00 gts prior to execution of the above said sale deeds. Respondent No.2 herein was in peaceful possession and invested huge profits over the suit schedule property. They have also filed an application before the Hyderabad Metropolitan Development Authority, seeking to cancel/revoke the Building permission bearing No.032550/R1/U6/HMDA/04012020 dated 31.08.2020, issued in favour of petitioner No.7 i.e., Khyathi Housing Projects Pvt. Ltd and the same is pending and thus they filed suit for permanent injunction and also to declare the sale deeds, gift deed and development agreement as null and void and also requested to grant relief of not to alienate or create 7 third party interest and also to granted ad-interim injunction restraining the petitioners from interfering with their peaceful possession by filing interlocutory applications.
8. In the counter filed by petitioner No.6 herein in I.A.No.194 of 2023, he denied all the material allegations except that are specifically admitted herein. According to the alleged document No.29 of 1969, it was clear that Sy.No.151 was having Acs.14-31 gts of land. He further stated that partition was not confirmed by the Court in the suit and also in the arbitration O.P, in fact petition filed under Order 10 rule 1 was allowed, suit was closed and arbitration O.P was dismissed without any finding, as such the said two documents cannot became judicial record and not binding on any party. He also stated that K.Seetha Rami Reddy was having only Acs.9-10 gts and not Acs.14-31 gts in Sy.No.151. The facts relating to title and possession, legality would be disclosed in trial only. The mutation of the petitioners have been questioned by the neighbouring land owners in the Hon'ble High Court of Andhra Pradesh and Telangana and interim suspension of the mutation was granted in W.Ps.No.40189 of 2017 in W.P.M.P.No.49863 of 2017. The respondent No.1 was failed to prove his title over the property, interlocutory applications filed by them are not 8 maintainable in view of suppression of facts. He further stated that respondent No.2 herein had executed a registered sale deed in favour of petitioner No.1 vide document No.1098 of 1999 to an extent of Ac.0-20 gts in Sy.No.151 and it was rectified by supplementary deed vide document No.5487 of 1999. Petitioner No.2 herein purchased Acs.0.14.132 gts out of Ac.0-25 gts in Sy.No.151 of Bachupally village through registered sale deed vide document No.10757 of 2002 and the same was rectified vide rectification deed vide No.7673 of 2012. Petitioner No.3 sold the land admeasuring 2242 Sq.yrds in Sy.No.151 through registered sale deed vide document No.9558 of 2012 to petitioners No.4 and 5. Thereafter, they obtained electric connection vide S.C.No.842812877 and enjoying the ownership and possession of the property till now. The petitioner No.1 who is his brother executed a gift settlement deed vide document No.33 of 2019, in his favour for remaining 708 Sq.yrds and he had executed development agreement cum General Power of Attorney vide document No.10356 of 2019 to petitioner No.7 in respect of the remaining land out of 25 gts. It was also having its own electric connection bearing No.S.C.No.112827921. All the documents filed by the petitioners proved their title and possession over the suit property.
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9. He further stated that petitioners herein are the absolute owners and are in peaceful possession and enjoyment of their respective lands from the date of purchase and started construction in their property. The vendors of the petitioners had also purchased the same through registered sale deeds. Petitioners are in possession of their respective lands since more than 13 years and they protected their title by way of adverse possession. He also stated that respondent No.1 herein has taken two different stands to prove their saying i.e., vendor of the petitioners is not having any land according to the family settlement deed in respect of survey numbers, but at the same time they agreed that petitioners name was showing in revenue records and 1-B register and thus respondent No.1 has no right, title or possession and no title was passed through his vendor and documents are created for the purpose of creating suit.
10. Petitioner No.6 has also stated the following legal points for consideration:
i) The suit filed by respondent No.1 is barred by limitation, as the sale deed was executed in the year 1999 in favour of petitioner No.1 and now respondent No.1 is seeking for declaration of documents as null and void i.e., after 19 years. 10
ii) Respondent No.1 did not file any document regarding their vendor's vendor title and their vendors' title. Only family settlement deed does not confirm any title and possession over the suit property.
iii) The identification of the suit schedule property is also in dispute. The boundaries shown in the suit schedule property are incorrect.
iv) The vendor of respondent No.1 had no valid title and there are no link documents filed by respondent No.1.
v) Respondent No.1 did not challenge the petitioners' title, even though they are aware of the documents of the petitioners since 1999.
vi) Respondent No.1 filed a sale deed bearing document No.8543 of 2002, i.e., document No.7, which shows that vendor of the respondent No.1 was having only Acs.9-30 gts, whereas, total extent in Sy.No.151 was Acs.14-31 gts. Moreover, vendor of respondent No.1 purchased only Acs.5-00 gts of land out of Acs.9-10 gts and the extent of respondent No.1 was limited to 30225 Sq.yrds and no document was filed regarding the remaining land in Sy.No.151.
vii) O.S.No.660 of 1999 and its I.A.No.1825 of 2002, has nothing to do with the suit and I.A.No.1825 of 2002 was the implead petition filed under Order 10 rule 1 of C.P.C and it was allowed, 11 but the suit was closed. Arbitration O.P.No.327 of 2003 was dismissed without any finding and thus they cannot be looked into.
viii) The partition deed was not followed, as all the documents filed by respondent No.1 contained all the survey numbers.
ix) Respondent No.1 failed to establish prima facie case by virtue of contradicting documents and failed to establish their possession and enjoyment to the extent of the suit schedule property and also the irreparable loss and hardship. There is no balance of conveyance subsisting in their favour.
x) The plaint and affidavit filed by respondent No.1 neither prove their title nor protect their possession and there is no whisper regarding partition deed, on which respondent No.1 is relying and depending.
xi) The respondent No.2 had sold the land measuring an extent of Ac.0-25gts to petitioners as shown in 1B register and it is to be considered as title deed. Photographs and electricity connections shows the possession of petitioners. Respondent No.1 has not approached the court with clean hands and filed the suit with bogus transactions. They suppressed the material facts and they have not made out prima facie case, there is no balance of conveyance in their favour and they are not entitled 12 to any relief and thus requested the Court to dismiss interlocutory applications with exemplary costs.
11. The trial Court observed that the case of respondent No.1 is that they are the absolute owners and possessors of the suit schedule property. They purchased the same from its owners for a valuable sale consideration under registered document and possession was delivered to them. They have also filed an application for conversion of land from agriculture to non- agriculture and the same was accorded. Subsequently, petitioners No.6 & 7, who are no way concerned with the suit schedule property are trying to interfere with their possession on 17.02.2023 and on 08.03.2023. Petitioners contended that respondent No.1 is not in possession and enjoyment of the petition schedule property, they are the absolute owners and they are in peaceful possession and enjoyment since the date of purchase. They started construction in their properties, their vendors also purchased the same through registered sale deed and they are in possession for more than 13 years and protected their title by adverse possession. It was further observed that the father of petitioner No.3 namely K.Yadi Reddy filed a suit for partition and separate possession against respondent No.2 vide O.S.No.660 of 1999 and subsequently it was referred to 13 arbitrator. On 24.07.1989, there was family settlement and the same was confirmed by the Order in I.A.No.1268 of 2002 in O.S.No.660 of 1999 and also in Arbitration O.P.No.327 of 2013. Respondent No.1 came into possession and enjoyment of the suit schedule property by way of sale deed filed under Exs.P8 and P10. Further, Ex.P30-Police report shows that when petitioners interfered with the possession and enjoyment of respondent No.1 over the suit property, they lodged a complaint. It was held that it is not the stage to decide the matter on merits and the scope of the petition is very limited. To avoid multiplicity of the litigation, to protect the interest of the parties and considering the documents filed by respondent No.1, as prima facie case is in their favour, granted temporary injunction and also directed the petitioners not to alienate the suit schedule property during the pendency of the suit. Aggrieved by the said Order, respondents No.2 to 8 therein preferred the present revision petition.
12. The learned Counsel for the petitioners herein mainly contended that petitioners No.4 and 5, filed a suit in O.S.No.309 of 2017 for perpetual injunction against the vendors of the respondents herein and the same was re-numbered as O.S.No.50 of 2023 and the same is pending. The Order and 14 decree of the trial Court passed in I.A.No.194 of 2023 in O.S.No.61 of 2023 is contrary to law. The trial Court failed to appreciate the facts of case in right prospective and not considered the documentary evidence of the petitioners herein. The respondent No.1 has not filed any application under Section 32 of Cr.P.C while filing the suit in O.S.No.61 of 2023 and also failed to file resolution of the Company. He also contended that petitioner No.2 purchased the property under Ex.A18. From 1998 onwards she is in possession and enjoyment of the property. She erected a compound wall with gate, two bore wells and two electricity connections in the year 2017-18 and it indicates the continuous un-interrupted possession and enjoyment over the suit schedule property and thus suit is barred by limitation. On 19.06.2023, respondent No.1 has filed a memo before the trial Court, but it was not pressed against respondent No.2. Further, he relied upon the Judgment of the Hon'ble Apex Court in the case of Ananthula Sudhakar Vs.P.Buchi Reddy 1, in which it was held that "Where the title of the plaintiff is in cloud, a suit for mere injunction without praying for declaration of title is not maintainable. Suit for bare injunction is not maintainable when both parties are claiming title on that too, effective possession cannot be proved." He also relied upon 1 AIR 2008 SC 2023 15 the Judgment of the Hon'ble Apex Court in the case of Jarkhand state Housing Board Vs. Didar singh and another, 2 in which it was held that "In each and every case where the defendant disputes the title of the plaintiff it is not necessary the 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 raised at cloud over the title of the plaintiff, then necessarily in those circumstances plaintiff cannot maintain suit for bare injunction." He further relied upon the Judgment of the Hon'ble Apex Court in Civil Appeal No.5577 of 2021, between T.V.Ramakrishna Reddy Vs. M.Mallappa and another, in which it was held as follows:
"Suit for perpetual injunction restraining defendants from interfering with plaintiff's peaceful possession and enjoyment of suit property - Held, if matter involves complicated questions of fact and law relating to title, court will relegate parties to remedy by way of comprehensive suit for declaration of title, instead of deciding issue in suit for mere injunction - Issue with regard to title can be decided only after full-fledged trial on basis of evidence that would be led by parties in support of their rival claims."
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2019 SAR (Civil) page 37 16
13. Admittedly, respondent No.1 herein filed the suit for permanent injunction and also for declaration of documents as null and void. Therefore, the contention of the petitioners that suit was filed only for mere injunction and not for declaration of title is not tenable. During the pendency of the suit, respondent No.1 filed two applications for grant of ad-interim injunction and for directing the petitioners not to alienate the suit properties to third parties during the pendency of the suit. Except petitioner No.6, no other person filed any counter and he is only the contesting the party. Petitioner No.6 is the General Power of Attorney holder of respondent No.2 i.e., son of K.Venkat Reddy. Respondent No.1 mainly relied upon the registered sale deed vide document No.20 of 1969, executed by Mohammadi Begum in favour of sons of K.Bhadra Reddy, for an extent of Acs.154-02 gts. Later, all the sons of K.Bhadra Reddy, executed family partition and settlement as detailed in petition along with their children and grand children as Group-D1 to D4. Group-D1, D3 and D4 got Acs.38-00 gts each and Group- D2 got Acs.38-02 gts. They in turn alienated the property to several persons. The legal heirs of K.Raja Reddy, alienated the property in favour of Sukhavasi Radha Krishna and Sukhavasi Kamala Kumari. They in turn sold the property to M/s.Nakhat Real Estate Private Limited and they sought for conversion of 17 land from agriculture to non-agriculture purpose and later they executed two sale deeds in favour of respondent No.1 for an extent of 1815 Sq.yrds out of 7381 Sq.yrds and another for an extent of 1210 Sq.yrds out of 7381 Sq.yrds in Sy.No.151. Respondent No.1 has filed the said sale deed and clearly stated that from then onwards they are in possession and enjoyment of the land measuring an extent of 3025 Sq.yrds and they have also filed photographs to support their contention. They have also stated that the entire land measuring an extent of 3025 Sq.yrds is the petition schedule property. When petitioners No.6 & 7 interfered with their possession on 17.02.2023 and 08.03.2023, they filed suit for injunction and for declaration of the documents as null and void. As the Court is dealing with interlocutory applications, it is for the Court to see whether prima facie case is met out by the respondent No.1 for granting of interim orders in their favour.
14. Admittedly, respondent No.1 has filed two sale deeds to prove their title and filed photographs to prove their possession. Petitioners mainly contended that sale deed was executed in the year 1999 and now they sought for declaration after lapse of 19 years and thus suit is barred by limitation. The limitation is to be decided in the main suit after adducing evidence of both the 18 parties. They also contended that family settlement deed does not confer any title or possession over the suit land. In fact, legal heirs of K.Bhadra Reddy i.e., four sons and his kith and kin executed several sale deeds in pursuance of the family settlement. All the groups got Acs.38-00 gts each, except group- D2, who got Acs.38-02 gts.
15. Petitioners have also contended that identification of the suit schedule property is also in dispute and boundaries are in correct. The total extent of the land is Acs.154-02 gts and it was divided among Groups D1 to D4. Petitioners contended that the vendors' of vendor of respondent No.1 was having Acs.9-10 gts, but not Acs.14-31 gts. The vendor of respondent No.1 had purchased only Acs.5-00 gts and the extent of respondent No.1 is limited to 3025 Sq.yrds. Petitioners also contended that partition deed was not confirmed in I.A.No.1825 of 2002 in O.S.No.660 of 1999. In fact, implead application was allowed and the suit was closed and Arbitration O.P.No.327 of 2013 was dismissed without any finding. The details of it can be gone through during the pendency of the main suit. Several other objections raised by the petitioners can be looked into in detail and can be dealt with in the main suit after considering the evidence and documents adduced by both the parties. These 19 applications are filed only to grant ad-interim injunction and to grant relief of not to alienate the suit properties to third parties. When respondent No.1 filed suit for declaration and also to declare several other documents as null and void, it is for the Court to protect the title during the pendency of the proceedings as they proved their title and possession. The trial Court rightly granted the above two reliefs and allowed the applications. This Court finds no reason to interfere with the said reasoned order.
16. In the result, these Civil Miscellaneous Appeals are dismissed, confirming the Order of the trial Court dated 20.07.2023 passed in I.A.Nos.194 & 234 of 2023 in O.S.No.61 of 2023. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 03.07.2024 tri