Rondla Tokala Prabhakar Reddy vs Rondla Tirupathi Reddy
2021 Latest Caselaw 1383 Tel

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
                                        AND
            HONOURABLE SRI JUSTICE T.VINOD KUMAR

          CIVIL MISCELLANEOUS APPEAL NO.471 OF 2020

                                  JUDGMENT:

(Per Sri Justice M.S.Ramachandra Rao)

This Appeal is filed challenging the order dt.14.09.2020 in

I.A.No.142 of 2020 in O.S.No.20 of 2020 of the V Additional District

Judge, Bhongir.

2. The appellant is the plaintiff in the suit.

Case of the appellant/plaintiff

3. The appellant filed the said suit against the respondents for

perpetual injunction restraining the respondents from interfering with the

peaceful possession and enjoyment of the appellant over the suit

schedule property.

4. It is the case of the appellant in the suit that he is the absolute

owner and possessor of agricultural land admeasuring Ac.3.31 gts., in

Sy.No.104/E, Ac.2.21 gts., in Sy.No.105/E, Ac.0.04 gts., in Sy.No.106/E

and Ac.2.17 grs., in Sy.No.125/E totaling Ac.8.24 gts., at Parupally

Village, Rajapet Mandal, Yadadri-Bhongir District. According to him,

he obtained these properties towards his share in the oral family partition

between himself and his brothers. This took place long time ago. He

claimed that he is in peaceful possession and enjoyment of the same ever

since the said oral partition.

5. The appellant contended that the 1st respondent approached him to

purchase the above extent of land and so the appellant executed an

Agreement of Sale Ex.P1 dt.02.07.2016 in favour of the respondents

after receiving Rs.5,00,000/- as advance with a specific condition that

the respondents should pay the balance sale consideration of

Rs.25,00,000/- within six months from the date of the Agreement of

Sale. He alleged that the respondents did not choose to perform their part

of the contract and that they had committed breach of the contract and it

became unenforceable.

6. The appellant also contended that he advanced a hand loan of

Rs.20,00,000/- to the 1st respondent and his wife on 02.12.2017 to help

them to meet certain financial commitments as they had promised to

repay it within three months; that the 1st respondent's wife executed a

promissory note in favour of the appellant and issued a cheque on

20.05.2019 to discharge it, but the cheque was dishonoured.

7. The appellant alleged that he then got a legal notice dt.22.05.2019

issued to the respondents about the cancellation of Ex.P1 Agreement of

Sale and also issued a statutory notice to the 1st respondent under Section

138 of the Negotiable Instruments Act asking her to pay the amount

covered by the cheque. According to him, both notices were served on

the respondents, but they sent reply notices on 31.05.2019 and

07.06.2019 showing wrong address of the appellant's advocate.

8. He alleged that the respondents had filed O.S.No.108 of 2019 for

specific performance of the Agreement of Sale dt.02.07.2016 wrongly

alleging that possession of the suit schedule property was delivered to

them after one month of the Agreement of Sale for the purpose of

development, that they had leveled the land and removed bushes and

boulders and fenced the same with barbed wire and stone pillars and

they had laid approach road to the suit schedule property by purchasing

land from third parties and claiming that they are in possession of the

suit schedule property.

9. The appellant contended that mutation was made in the pahani on

25.06.2019 illegally by Tahsildar, Rajapet Mandal of the names of the

respondents, which was challenged before the Revenue Divisional

Officer, but he dismissed it on 03.09.2019 and the appellant had filed a

Revision petition before the Joint Collector, Yadadri-Bhongir District

and it is pending.

10. The appellant contended that the respondents obtained interim

injunction on 01.07.2019 in I.A.No.682 of 2019 in O.S.No.108 of 2019

to restrain the appellant from alienating the suit schedule property to

third parties; that they came to the land on 10.07.2019 and tried to

trespass into it; and they were prevented by the appellant with the help of

his relatives.

11. He further contended that on 18.07.2019 again the respondents

came to the suit schedule property with anti-social elements and

assaulted him, and he lodged a complaint with police station Rajapet, but

the Station House Officer refused to register the complaint stating that

the matter is of civil nature.

12. The appellant contended that though he is a resident of

Hyderabad, he is having the suit schedule property cultivated through J.

Narasimha Reddy on yield sharing basis and since there is threat of

dispossession, he filed the suit for perpetual injunction restraining the

respondents from interfering with his peaceful possession and enjoyment

of the suit schedule property.

I.A.No.142 of 2020

13. The appellant also filed I.A.No.142 of 2020 in the said suit

reiterating the contents of the plaint and seeking, under Order XXXIX

Rules 1 and 2 CPC, an ex parte ad interim temporary injunction against

the respondents to restrain them from interfering with his peaceful

possession and enjoyment of the suit schedule property pending disposal

of the suit. He asserted therein that he is in possession and enjoyment of

the suit schedule property.

Stand of respondents in I.A.No.142 of 2020

14. The respondents filed counter affidavit opposing grant of interim

relief to the appellant.

15. They contended that they are in actual possession of the suit

schedule property as agreement holders having purchased the same from

the appellant under the Agreement of Sale for valid consideration and

stating that on 02.07.2016 they also paid advance sale consideration.

They contended that the appellant handed over physical possession of

the suit schedule property to the respondents orally for the purpose of

development and that they have raised dry crops therein. They also

stated that their names have been mutated in the pahani showing that

they are in possession of the suit schedule property.

16. They alleged that within the stipulated period they approached the

appellant and demanded him to receive the balance sale consideration

amount and to execute regular registered sale deed in their favour in

respect of the suit schedule property as per the Agreement of Sale, but

the appellant did not do so.

17. They alleged that due to escalation of land prices in the vicinity of

the suit schedule property, and seeing the developments made by the

respondents, the appellant did not come forward to perform his part of

the agreement as per the Agreement, and so they filed O.S.No.108 of

2019 for specific performance and obtained injunction orders on

06.09.2019 in I.A.No.682 of 2019 therein restraining the appellant from

alienating the suit schedule property to third parties.

18. They disputed the case of the appellant that he is in possession of

the suit schedule property.

19. The 1st respondent also denied that the appellant advanced hand

loan of Rs.20,00,000/- to his wife on 02.12.2017 and that his wife had

executed a promissory noted in favour of the appellant. He also denied

that his wife had issued a cheque on 20.05.2019 to the appellant and it

was dishonoured.

20. They alleged that they had got issued Ex.P8 legal notice

dt.10.05.2019 calling upon the appellant to come forward for execution

of the registered sale deed and the notice was dispatched on 11.05.2019

to the address of the appellant and after coming to know about the same,

the appellant got returned the notice and got issued a false legal notice

on 22.05.2019.

21. In I.A.No.142 of 2020, the appellant filed Exs.P1 to P15 and the

respondents filed Exs.R1 to R6.

The order dt.14.9.2020 in IA No.142 of 2020

22. By order dt.14.09.2020, the Court below dismissed I.A.No.142 of

2020.

23. The Court below noted the respective contentions of the parties,

and the admitted fact about the execution of the written Agreement of

Sale dt.02.07.2016 between the appellant and the respondents and in

particular the recital therein that the appellant declared that in future the

respondents would be absolute owners thereof and neither the appellant

nor his legal heirs would have any right over the said property.

24. It then noted that the point to be considered is only with respect to

the possession of the suit schedule property.

25. It also noted that the land appears to be open land in view of the

photographs filed by both parties, but the respondents are shown in the

possessory column of the suit schedule property as per the Village

pahani Ex.P5 dt.25.06.2016, and as per Ex.P7 order dt.10.05.2019 in

Appeal No.D/1458/2019 and also Exs.R2 to R6 issued on 17.08.2020.

26. The Court below then considered the plea of the appellant that the

revenue records were brought into existence by respondents taking help

of the revenue authorities and that the said entries have no value, but

rejected the same on the ground that even Ex.P7 order of the Revenue

Divisional Officer indicates that only after a factual ground check, a

finding was given that the respondents are in possession of the property.

It therefore disbelieved the plea of the appellant that he is in possession

of the suit schedule property.

27. It therefore held that balance of convenience is not in favour of

the appellant and denial of interim injunction would not cause loss to

him and it would cause loss to the respondents.

The present Appeal

28. Challenging the same, this Appeal is filed.

29. Learned counsel for the appellant contended that the Court below

had erred in dismissing I.A.No.142 of 2020 filed by the appellant for

temporary injunction restraining the respondents from interfering with

his alleged peaceful possession over the suit schedule property till the

disposal of the suit; that under Ex.P1 Agreement of Sale dt.02.07.2016

there is no mention of delivery of possession; that the said Ex.P1

Agreement does not create any right, title or interest in the suit schedule

property; that the respondents had committed breach of contract by not

paying the balance sale consideration; that the respondents could not

have got their names mutated as possessors in revenue records and such

entry in revenue records had no probative value; and on the basis of such

mutation entries in revenue records, the respondents cannot be said to be

in possession of the suit schedule property.

Consideration by the Court

30. Since the appellant is seeking temporary injunction against the

respondents contending that he is in possession of the suit schedule

property, the burden is on the appellant to first establish that he

continues to be in possession of the suit schedule property. Such

possession in respect of agricultural land is normally reflected in the

Village pahanies.

31. Even according to the appellant, the column dealing with

possession in Village pahani dt.25.06.2019 in respect of the subject

property shows the names of the respondents and not the name of the

appellant.

32. This was challenged by the appellant before the Revenue

Divisional Officer, Bhongir in Appeal Case No.D/1458/2019 under

Section 5(5) of the A.P. Record of Rights in Land and Pattadar

Passbooks Act, 1971. The RDO by order dt.03.09.2016 (Ex.P7)

observed that there is a civil dispute to be adjudicated by competent

Civil Court and directed the appellant to seek remedy in civil Court.

33. The learned counsel for the appellant however contended that the

Mandal Revenue Officer and the Revenue Divisional Officer ought not

to have passed such orders, and such orders are not legally valid as per

the provisions of the A.P. Record of Rights in Land and Pattadar

Passbooks Act, 1971.

34. But we cannot go into the said issue in this Civil Miscellaneous

Appeal because the appellant has a remedy of revision under Section 9

of the said Act, which was already availed by him before the Joint

Collector, Yadadri-Bhuvanagiri District and it is pending.

35. Also, the respondents had already filed O.S.No.108 of 2019

seeking specific performance against the appellant and in the said suit,

they had filed I.A.No.682 of 2019 to restrain the appellant from

alienating, encumbering or mortgaging the suit schedule property

specifically pleading that they are in possession thereof; and on

06.09.2019, there was a temporary injunction granted in favour of the

respondents and against the appellants in I.A.No.682 of 2019.

36. The instant suit has been filed on 06.07.2020, long after the

respondents obtained the interim injunction orders on 06.09.2019 in IA

No.682 of 2019 in OS No. 108 of 2019.

37. On the pretext that there is no mention of delivery of possession in

Ex.P1 Agreement of Sale, it is not open to the appellant to contend that

he continued to be in possession particularly when such alleged

possession is not supported by revenue records such as pahanies.

38. In this view of the matter, we are of the opinion that the Court

below did not commit any error in refusing to grant temporary injunction

in favour of the appellant in I.A.No.142 of 2020.

39. Accordingly, the Appeal fails and is dismissed. No costs.

40. Pending miscellaneous petitions, if any, in this CMA shall also

stand dismissed.

____________________________ M.S.RAMACHANDRA RAO, J

____________________ T.VINOD KUMAR, J Date: 28-04-2021

Svv