Telangana High Court
Keesari Srinivas vs Mohd. Wahed Ali on 3 June, 2024
Author: P.Sree Sudha
Bench: P.Sree Sudha
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
SECOND APPEAL No.483 of 2007
JUDGMENT:
This second appeal is filed against the Judgment and decree dated 23.02.2007 in A.S.No.10 of 2006 passed by the learned V-Additional District Judge (III-F.T.C), Miryalguda, in which the Judgment and decree dated 20.03.2006 in O.S.No.255 of 1998 passed by the learned Junior Civil Judge, Miryalguda, was set aside.
2. Initially, appellants/plaintiffs have filed a suit vide O.S.No.255 of 1998, for perpetual injunction restraining the respondents/defendants from interfering with their peaceful possession and enjoyment of the plaint schedule lands. The appellant No.1/plaintiff No.1 was examined himself as P.W.1 and also got examined P.Ws.2 and 3 on his behalf and marked Exs.A1 to A19 on their behalf. D.Ws.1 to 20 were examined on behalf of the respondents/defendants and marked Exs.B1 to B16 and Ex.C1 on their behalf. The trial Court after considering the arguments of both sides, decreed the suit. Aggrieved by the said Judgment and decree, defendants therein preferred an appeal before the first appellate Court, and the first appellate 2 Court by Judgment and decree dated 23.02.2007, allowed the appeal setting aside the Judgment of the trial Court, against which respondents therein preferred the present second appeal.
3. The learned Counsel for the appellants/plaintiffs raised the following substantial questions of law:
"a) Whether the execution of alleged Ex.B1 by the appellants father in his individual capacity binds the appellants and their mother?
b) Whether in the absence of passing of better title to D.13 under Exs.B1 and B2 can the respondents claim title against the appellants herein?"
4. The parties herein are referred as plaintiffs and defendants as arrayed before the trial Court for the sake of convenience.
5. The brief facts of the case are that plaintiffs are own brothers and they are living under one roof. They are absolute owners and actual possessors of the plaint schedule lands situated at Miryalguda Sivaru. They got the dry land to an extent of Ac.0-36 gts, situated in Sy.No.885/A2 from their mother Keesari Lakshmamma and the remaining lands to an extent of Ac.1-00 gts in Sy.No.896/E, Ac.0-30 gts in Sy.No.896/Ru2 from their father Keesari Saidaiah @ Saidulu 3 besides other lands in Sy.No.896 and still they are enjoying the said lands. The revenue authorities issued Pattedar passbooks and title deeds to the plaintiffs by dividing their share by giving bit numbers for their convenience, but plaintiffs have not partitioned their lands and their names are recorded as pattedars and possessors of the plaint schedule lands. The defendants without having any manner of right, title or interest over the suit lands, interfering with their peaceful possession and enjoyment of the suit schedule lands. The defendants did not have lands near or adjacent to the plaint schedule lands. Plaintiffs resisted the illegal attempts of defendants with great difficulty on 20.05.1998 and on 23.08.1998 and later filed suit for injunction.
6. The defendant No.2 in the suit filed the written statement and it was adopted by defendants No.1, 3 to 6. In the written statement filed by her, defendants denied all the material averments of the plaint and contended that the parents of the plaintiffs long back sold away the maximum extent of the lands in Sy.Nos.885 and 896 to defendant No.13, therefore plaintiffs have nothing to do with the plaint schedule lands. The issuance of passbooks and title deeds by the revenue authorities to the 4 plaintiffs without following the procedure as in the A.P Rights in Lands and Pattedar Passboks Act, is illegal. As the lands have already become house sites, the rights in the said Act are not applicable to house sites. The authorities without inspecting the lands might have issued them. The entries in Pattedar Pahani Patrikas are not final and are rebuttable. The defendant No.2 is also taking steps to prefer an appeal against the issuance of said documents. The defendant No.13 had purchased the land to an extent of Ac.0-33 gts in Sy.No.885 and Ac.0-20 gts in Sy.No.896, totally admeasuring Ac.1-13 gts, situated at Miryalguda Revenue Village from the father and mother of the plaintiffs respectively for a total sale consideration of 15,500/- on 16.08.1976 under an agreement of sale and got executed deed of sale agreement in his favour. As per the contents of the sale agreement, parents of the plaintiffs delivered the possession of the land to an extent of Ac.1-13 gts to defendant No.13. Later, the parents of the plaintiffs executed G.P.A in favour of defendant No.13 vide document No.21 of 1976 dated 13.09.1976, before the Sub-Registrar Office, Miryalguda. The defendant No.13 after making it into house plots, sold away the said land to various persons leaving Ac.0-14 gts of land for internal roads.
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7. She also stated that defendants No.1 to 12 and some other persons have purchased the Ac.0-39 gts of land in plot- wise. As defendant No.13 got an agreement of sale in his favour from the parents of the plaintiffs, he himself executed a registered sale deed to defendants No.1 to 6, in the capacity of owner and possessor during the years 1982 and 1984. He planted standing stones for appearance of plots and internal roads in clear shape. The parents of the plaintiffs are having knowledge regarding conversion of the land by defendant No.13 and selling away to the defendants No.1 to 12, but they did not object the same. The defendant No.6 laid a hut in the said site about 10 years back. The plaint schedule lands became house sites very long back in the year 1985 and 1986 and they lost the characteristic of agricultural land. The revenue authorities without inspecting the actual possession over the land, carried the previous year entries in slipshot manner. One Raja Rajeshwari Para Boiled Modern Rice Mill is situated near the plaint schedule land. After boiling paddy, the excreted water was let out into plaint schedule lands from the last 15 years. Neither the parents of the plaintiffs nor the plaintiffs objected the owners of the rice mill. There is 10 ft width passage between compound wall of Raja Rajeshwari Rice Mill and the house plots 6 in both the suit survey numbers sold by defendant No.13. It is intended for using the path to the house plot purchasers and also to reach the lands situated beyond the plots. There was a small deity "Maisamma" installed under Tamarind tree near the plots. The defendant No.1 purchased the house site admeasuring 242 Sq.yrds in Sy.No.885 for a sale consideration Rs.1,210/- under registered sale deed bearing document No.1305 of 1982 dated 05.04.1982 from defendant No.13. The defendant No.2 purchased the house site admeasuring Ac.0-06 gts in Sy.No.896 for a sale consideration of Rs.2,000/- under registered sale deed bearing document No.3385 of 1984 dated 05.07.1984. The defendant No.3 purchased the house site admeasuring 242 Sq.yrds in Sy.No.896 for a sale consideration of Rs.2,500/- under registered sale deed bearing document No.2652 of 1987 dated 18.06.1984. The defendant No.4 purchased the house site admeasuring 121 Sq.yrds in Sy.No.896 for a sale consideration of Rs.1,300/- under registered sale deed bearing document No.4329 of 1984 dated 16.10.1984. The defendant No.5 purchased the house site admeasuring 90 Sq.yrds in Sy.No.896 for a sale consideration of Rs.900/- under registered sale deed bearing document No.4330 of 1984 dated 16.10.1984. The defendant No.6 purchased the 7 house site admeasuring 242 Sq.yrds in Sy.No.885 for a sale consideration of Rs.2,700/- under registered sale deed bearing document No.331 of 1985 dated 30.01.1985 and rectification deed bearing No.2921 of 1993 dated 30.11.1993 from defendant No.13, as such plaintiffs have no right or possession over the plaint schedule lands for the last 21 years. Defendants No.2 and 6 are in possession of their respective house plots prior to the dates of their purchase. The defendants No.1, 3, 4 and 5 are in possession of their respective plots from the date of their purchase. Therefore, requested the Court to dismiss the suit.
8. The defendant No.7 filed the written statement, which was adopted by defendants No.8 to 11. In the said written statement, she stated that she purchased house site admeasuring 181 ½ Sq.yrds in Sy.No.885 for a sale consideration of Rs.2,000/- under registered sale deed bearing document No.739 of 1985 dated 31.01.1985 from defendant No.13. The defendant No.8 purchased house site admeasuring 181 ½ Sq.yrds in Sy.No.885 for a sale consideration of Rs.2,000/- under registered sale deed vide document No.855 of 1985 dated 11.03.1985 from defendant No.13. The defendant No.9 purchased the house site admeasuring 121 Sq.yrds in 8 Sy.No.885 for a sale consideration of Rs.1,400/- under registered sale deed vide document No.856 of 1985 dated 02.03.1985 from defendant No.13. The defendant No.10 purchased the house site admeasuring 60 ½ Sq.yrds in Sy.No.885 for a sale consideration of Rs.700/- from defendant No.13. The defendant No.11 purchased the house site admeasuring 243 2/3 Sq.yrds in Sy.No.896 for a sale consideration of Rs.4,150/- from defendant No.13.
9. The defendant No.13 in his written statement stated that father and mother of the plaintiffs during their life time, sold away the land measuring Ac.0-33 gts in Sy.No.885, Ac.0-20 gts of land in Sy.No.896 in the year 1976, altogether Ac.1-13 gts, situated at Miryalguda Revenue village forming one plot to defendant No.13 and executed a simple sale deed in the form of agreement in his favour. On 13.09.1976, the father of the plaintiffs executed a G.P.A vide document No.21 of 1976 before the Sub-Registrar, Miryalguda, appointing the defendant No.13 in respect of the Ac.1-36 gts of land, as such he in turn sold the land by making house plots to several persons. The remaining land to an extent of Ac.0-14 gts was left for internal roads. The defendants No.1 to 12 and others have got registered sale deeds 9 from defendant No.13 and took the possession of their respective house sites. Though the trial Court mentioned regarding the execution of the registered sale deeds by defendant No.13, decreed the suit in favour of plaintiffs. It was observed that though the pattadar passbooks and title deeds were given in favour of the plaintiffs, defendants did not prefer any appeal till the completion of the evidence of plaintiffs. They obtained exparte Orders from Revenue Divisional Officer, Miryalguda, dated 06.04.2002, under Ex.B3. It was further observed that there was cultivation of dry crops in the suit schedule lands and the said crops were raised by the father of the plaintiffs till his death and after the death of the father of the plaintiffs, plaintiffs cultivated the dry crops till 1998 and held that Ex.B2-agreement of sale is a fabricated document. If at all the parents of the plaintiffs, really executed the sale deed under Ex.B2, defendant No.13 should have mentioned the same in his written statement filed in O.S.No.43 of 1985, filed by the maternal uncle of the plaintiffs on behalf of the plaintiffs. C.Eashwaraiah, who was the Sub-Registrar of Miryalguda, was examined as D.W.20 and the thumb impression of Keesari Saidhaiah, who is the father of the plaintiffs in the thumb impression register was marked as Ex.C1 through D.W.20. 10 D.W.20 stated that the said thumb impression was not obtained in his presence and there was no identification marks or photo of the individual to identify that the said thumb impression belongs to the father of the plaintiffs. It was also observed that no documentary evidence was produced by defendants No.1 to 12 to show that they are in possession of their respective house sites. It was also observed that the decree in O.S.No.43 of 1985 dated 23.11.1987, was not challenged by defendants No.6, 7, 12 and 13 and it became final. The suit against defendants No.10 and 11 was dismissed as abated, as no legal representative was brought on record, as such decreed the suit in favour of plaintiffs, restraining defendants No.1 to 9, 12 and 13 from interfering with their peaceful possession.
10. The first appellate Court contended that it is the suit for bare perpetual injunction, as such the Court is not expected to go in depth regarding the title of the parties. It was also observed that though the defendants did not challenge the exparte decree dated 23.11.1987 in O.S.No.43 of 1985, they contended that the suit schedule property involved in the above suit is a dry land admeasuring Ac.0-36 gts in Sy.No.885, which is part and parcel of Ac.1-13 gts in Sy.No.885 and 886, which is 11 the suit schedule property of this case. The suit schedule property in the present case is larger as compared to the suit schedule property of the above suit, there was variation of boundaries. Some of the defendants in the present suit were not a party in the said suit, as such the principle of res-judicata is not applicable. It was further observed that in a suit for perpetual injunction, a person should come to the Court with clean hands. It was also observed that in O.S.No.43 of 1985, the title of the plaintiffs was denied by the defendants. Though the plaintiffs are having knowledge of the same, filed suit for perpetual injunction without seeking declaration, which is not tenable. The first appellate Court further relied upon the decision of the Hon'ble High Court of Andhra Pradesh, in the case of N.R.Srinivas Vs.Madduri Mallareddy and others, 1 in which it was held as follows:
"No doubt, the Court while dealing with the aspect of injunction under Order-39 rules 1 and 2 or in suits for permanent injunction have to necessarily weigh various facts and circumstances. While dealing with an application under Order 39 rules 1 and 2 of C.P.C, the Court has to necessarily go basically into three important aspects- Firstly, prima facie case, secondly, balance of convenience and thirdly, loss that is likely to be caused to the parties. Whereas, while dealing with the question of granting permanent injunction, various other circumstances on record have to be gone into.1
2005(1) ALD 268 12 Normally, the Court while dealing with the suit for permanent injunction, the question of possession of the plaintiff as on the date of filing of the suit will be taken as the prime factor for consideration. It is also the well settled proposition of law that in a suit for injunction, the question of title has to be and can be gone into. What is the effect of consideration and decision regarding the finding relating to title in a suit for injunction is a different subject."
The first appellate Court pointed out that the trial Court has not relied upon Ex.B16, as it was obtained without issuing notice to the plaintiffs, but did not considered the fact that Exs.A1 to A8 were issued after the conversion of agricultural land into house sites since 1976 and accordingly set aside Judgment of the trial Court and allowed the appeal.
11. The case of the defendants is that parents of the plaintiffs authorized defendant No.13, executed G.P.A and also executed agreement of sale in his favour regarding the suit land measuring an extent of Ac.1 - 13 gts, as such he converted the same into house plots and sold to defendants No.1 to 12 and others and also executed registered sale deeds in their favour, but the revenue authorities issued pattedar passbook in favour of plaintiffs without inspecting the suit schedule property and without analysing the fact that agricultural land was already 13 converted into house sites. Defendants further contended that in the written statement filed in O.S.No.43 of 1985, they denied the title of the plaintiffs. Knowing pretty well about the same, plaintiffs filed the present suit simply for bare injunction instead of filing suit for declaration. The first appellate Court considering the above aspects and also the sale deeds executed by defendant No.13 in favour of several other persons, rightly dismissed the appeal and set aside the Judgment of the trial Court. This Court finds that it is just and reasonable to dismiss the present second appeal confirming the Judgment of the first appellate Court.
12. In the result, the second appeal is dismissed, confirming the Judgment and decree passed by the first appellate Court in A.S.No.10 of 2006, dated 23.02.2007 and the Judgment and decree passed by the trial Court in O.S.No.255 of 1998, dated 20.03.2006, is set aside. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATE: 03.06.2024 tri