Telangana High Court
Sri Ramesh Gaikwad vs Smt Lalitha Srikrish on 17 August, 2021
Bench: M.S.Ramachandra Rao, T.Vinod Kumar
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
Civil Miscellaneous Appeal No.314 of 2021
JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This Civil Miscellaneous Appeal is preferred against the order
dt.01.06.2021 in I.A.No.59 of 2021 in O.S.No.13 of 2021 on the file
of the XVI Additional District and Sessions Judge, Ranga Reddy
District at Malkajgiri.
2. The appellants are defendant nos.5, 11, 12, 13 in the said suit.
3. Respondent nos.1 to 6 in this Civil Miscellaneous Appeal are
plaintiffs in the suit.
4. The other defendant nos.1 to 4, 6 to 10 are respondent nos.7 to
15 in the Appeal; and the appellants have shown them as 'not
necessary parties'.
5. There are A, B and C schedule properties mentioned in the
plaint by the plaintiffs.
6. The parties will be referred to as per their array in the suit.
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The background facts :
7. It is not in dispute that plaintiff nos.1 to 5 are residents of
United States of America.
8. Sri Krish Srinivasan, the husband of 1st plaintiff and father of
plaintiff nos.2 and 3 purchased Acs.0.05 gts. in Sy.No.150 of Yapral
Village under exhibit Ex.P.1 Sale Deed dt.08.03.1996, and Acs.1.27
gts. in Sy.No.150 and Acs.2.32 gts. in Sy.No.137 of Yapral Village
under Ex.P.2 Sale Deed dt.18.09.1996.
9. Sri T.R. Srinivasan, the father of the 4th plaintiff purchased
Acs.5.00 of land in Sy.No.150 of Yapral Village under Ex.P.3
dt.08.03.1996.
10. The 5th plaintiff purchased Acs.1.15 gts. in Sy.No.140 of Yapral
Village under Ex.P.4 dt.18.09.1996.
11. The plaintiffs approached the Hyderabad Urban Development
Authority and got a final approval of layout on 20.03.2003 for an
extent of Acs.10.39 gts. and they became joint owners.
12. Krish Srinivasan died on 08.11.1996, and under a Will
dt.03.10.1996 the plaintiff nos.1 to 3 inherited his property.
13. T.R. Srinivasan died on 20.10.2000 and under a Will
dt.20.01.1997, the 4th plaintiff and his mother Janaki Srinivasan
succeeded to his property. She executed Ex.P.5 gift Deed
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dt.08.11.2016 in favour of 4th plaintiff gifting him her share in the
property of Late T.R. Srinivasan.
14. The 1st defendant claims that Late T.R. Srinivasan and others
allegedly executed 11 unregistered sale deeds dt.21.04.2000 involving
the 'A' to 'C' schedule properties and a 12th unregistered sale deed
over plot No.91 on 23.04.2000 and got them all validated on
21.08.2007 by paying the deficit stamp duty before the District
Registrar, Ranga Reddy District.
15. This is disputed by the plaintiffs who allege that at the said
point of time they were not in India, and Late T.R. Srinivasan and
others did not execute these sale deeds.
16. It is not in dispute that the 1st defendant filed O.S.Nos.1266,
1233, 1273, 1290, 1129, 1128, 1130, 1144, 1085, 1267 and 1289 of
2008 for specific performance of the 11 unregistered sale deeds and
all these suits were dismissed between April, 2010 and December,
2015.
17. Before the dismissal of the above suits, the 1st defendant had
executed Agreement - cum - General Power of Attorney / Sale Deeds
in favour of defendant nos.2 to 11 under Exs.P.16 to P.28 between
2018-2020 mentioning therein that he has delivered possession of the
respective plots to the said defendants.
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18. The plaintiff nos.1 to 5 had also obtained construction
permissions on 29.11.2020 for making construction in the 'A' to 'C'
schedule properties.
19. The plaintiff nos.1 to 5 executed Exs.P.34 to P.36 Development
Agreement - cum - GPA in favour of 6th plaintiff on 05.01.2021
which were registered on 22.01.2021 appointing the 6th plaintiff as
their agent and allowing him to develop the suit schedule property by
constructing commercial / residential buildings / apartments / flats on
mutual sharing basis.
20. Contending that on 12.12.2020 when 6th plaintiff (representing
plaintiff nos.1 to 5) had visited the suit schedule property to measure
and the same, representatives of the defendants falsely claiming to be
the owners on the basis of Exs.P.15 to P.28 documents resisted the
activity of the representatives of the 6th plaintiff, the 6th plaintiff filed
an application i.e., a Receive and Transmit petition No.5 / 2021 in the
Vacation Court of the High Court in January, 2021 to receive the suit
and transmit it to the appropriate Court purportedly on behalf of other
plaintiffs.
21. It was prayed in the suit to :
(a) declare that the plaintiff nos.1 to 5 are joint absolute owners and
possessors of the suit schedule property;
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(b) to declare Exs.P.15 to P.28 - Sale Deeds / AGPAs executed by 1st
defendant in favour of defendant nos.2 to 11 as null and void, and not
binding on the plaintiffs; and
(c) to grant a perpetual injunction restraining the defendants from
interfering with the alleged lawful possession of the plaintiffs over the
suit schedule property.
The events after the filing of the suit
22. A Vacation Judge of this High Court allowed the Receive and
Transmit Petition No.5 of 2021 and while doing so , he also granted
an ex parte ad interim injunction in favour of plaintiffs I.A.No.1 of
2021 in Receive and Transmit Petition No.5 of 2021.
23. This was challenged in C.M.A.No.90 of 2021 before this
Court.
24. On 22.02.2021 in I.A.No.1 of 2021 in C.M.A.No.90 of 2021,
the said order dt.12.01.2021 in I.A.No.1 of 2021 was suspended.
25. This order was questioned in S.L.P.No. 3825 of 2021 by the
plaintiffs and the Supreme Court on 08.03.2021 stayed the order of
this Court for six (06) weeks and directed this Court to decide the
CMA on merits within four (04) weeks.
26. Thereafter, the CMA was allowed on 17.04.2021 by this Court
on the ground that in the order dt.12.01.2021 in I.A.No.1 of 2021 in
RTP.No.5 of 2021, the learned Single Judge did not follow proviso to
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Order 39 Rule 3 C.P.C., which is mandatory , while granting the
exparte ad-interim injunction i.e he did not give reasons for granting
the said ex parte ad interim injunction in favour of the plaintiffs and
remanded the matter to the Trial Court for fresh adjudication of the
interim injunction application [which had been numbered by the Court
below as I.A.No.59 of 2021].
27. This order was questioned by the plaintiffs in S.L.P.No.6162 of
2021. On 19.04.2021, the Supreme Court passed an order of status
quo till the Trial Court decides the I.A.No.59 of 2021.
28. Thereafter, on 25.05.2021, the Supreme Court directed that till
the order is passed by the Trial Court, status quo shall be maintained
by the parties.
29. Subsequently, on 01.06.2021, the Trial Court allowed
I.A.No.59 of 2021 by a fresh order, which is impugned in this C.M.A.
30. Thereafter, on 01.07.2021, the SLP was dismissed as
infructuous.
31. We have heard Sri K. Mohan, counsel for appellants / defendant
nos.5, 11, 12, and 13, Sri M. Surender Rao, learned Senior Counsel
for Sri Ch. A. B. Satyanarayana, for plaintiff nos.1 to 5, and Sri K.S.
Murthy, counsel for 6th plaintiff.
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The consideration by the Court.
32. Though plaintiff nos.1 to 5 are residents of United States of
America even as on the date of filing of the suit, they claim to be in
possession of the property invoking the principle that since they have
title, they are presumed to be in possession of the suit schedule
property.
33. On the contrary, the defendants have claimed that there were
twelve unregistered sale deeds dt.21.04.2000 and 23.04.2000 executed
in favour of 1st defendant by late T.R. Srinivasan and others; and that
after selling the property T.R. Srinivasan and others left to the United
States of America in the year 2000. They claim to be in possession of
the subject properties on the date of filing of the suit.
34. It is an admitted fact that validation of the unregistered sale
deeds dt.21.04.2000 / 23.04.2000 was done on 21.08.2007 by 1st
defendant by paying the deficit Stamp Duty. But none of these
unregistered sale deeds have been filed by the defendants in the Court
below.
35. The existence of those unregistered sale deeds and their
validation on 21.08.2007 is admitted by plaintiffs in para no.8 of the
plaint, but they deny execution of the same by late T.R. Srinivasan
and others on the ground that the passports of the executants show that
they left Chennai on 14.04.2000 and landed in United States of
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America on 15.04.2000, and so they did not execute the said
unregistered sale deeds in favour of 1st defendant.
36. We have already noted that the suits for specific performance
filed by 1st defendant against the executants of the said unregistered
sale deeds got dismissed between 2010-2015. So the title to the
property cannot prima-facie be claimed by defendant no.1 or the other
defendants claiming through him under subsequent alienations under
Exs.P.16 to P.28 between 2018-2020.
37. But the critical question is who is prima facie in possession of
the suit schedule property as on the date of filing of the suit.
38. The plaintiffs may have prima facie title, but if they are not in
possession on the date of filing of the suit, then they cannot seek relief
of temporary injunction/perpetual injunction and have to sue for
recovery of possession.
39. In this country, it is settled law that law presumes that
possession would go with title unless rebutted.
40. Equally it is well settled that a person in settled possession of
property is entitled to retain it and even a rightful owner can be
injuncted from using force or taking the law into his own hands.
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41. In Rame Gowda v. M. Varadappa Naidu1, the Supreme
Court has authoritatively reiterated these principles :
"8. It is thus clear that so far as the Indian law is concerned, the person in
peaceful possession is entitled to retain his possession and in order to protect
such possession he may even use reasonable force to keep out a trespasser. ... ...
If the trespasser is in settled possession of the property belonging to the rightful
owner, the rightful owner shall have to take recourse to law; he cannot take the
law in his own hands and evict the trespasser or interfere with his possession. The
law will come to the aid of a person in peaceful and settled possession by
injuncting even a rightful owner from using force or taking the law in his own
hands, and also by restoring him in possession even from the rightful owner (of
course subject to the law of limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of better title, possession or
prior peaceful settled possession is itself evidence of title. Law presumes the
possession to go with the title unless rebutted. ... ....
9. 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."
42. As already stated above, though plaintiff nos.1 to 5 are residents
of United States of America even as on the date of filing of the suit,
they claim to be in possession of the property invoking the principle
that since they have title, they are presumed to be in possession of the
suit schedule property.
43. In State of A.P. v. Star Bone Mill and Fertiliser Company2,
the Supreme Court held :
"21. ... ... ... The maxim "possession follows title" is
applicable in cases where proof of actual possession cannot
reasonably be expected, for instance, in the case of wastelands, or
where nothing is known about possession one way or another.
(2004) 1 SCC 769, at page 775
(2013) 9 SCC 319 : (2013) 4 SCC (Civ) 444, at page 327
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Presumption of title as a result of possession, can arise only where
facts disclose that no title vests in any party. Possession of the
plaintiff is not prima facie wrongful, and title of the plaintiff is not
proved. It certainly does not mean that because a man has title
over some land, he is necessarily in possession of it. It in fact
means, that if at any time a man with title was in possession of the
said property, the law allows the presumption that such possession
was in continuation of the title vested in him.." (emphasis
supplied)
44. So, the principle "possession follows title" has limited
application and can be invoked only in cases where proof of actual
possession cannot reasonably be expected or where nothing is known
about possession one way or the other.
45. Suppose there is prima-facie evidence that Late T.R.Srinivasan
and others had executed the 11 unregistered sale deeds dt.21.4.2000 in
favour of the 1st defendant, and there are recitals therein about
delivery of possession to the 1st defendant, then the defendants can
rely on proviso to Section 49 of the Registration Act,1908 and the
recitals in the unregistered sale deeds for the collateral purpose of
proving their possession under them.
46. Under proviso to Section 49 of the Indian Registration Act,
1908, an unregistered document affecting immoveable property and
required by the Registration Act or the Transfer of Property Act, 1882
to be registered may be received in evidence of any collateral
transaction not required to be effected by registered instrument.
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47. In Bondar Singh v. Nihal Singh3, the Supreme Court held as
follows :
"5. The main question, as we have already noted, is the question of
continuous possession of the plaintiffs over the suit lands. The sale deed
dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola
Singh, the predecessor-in-interest of the plaintiffs, is an admitted document
in the sense its execution is not in dispute. The only defence set up against
the said document is that it is unstamped and unregistered and therefore it
cannot convey title to the land in favour of the plaintiffs. Under the law a
sale deed is required to be properly stamped and registered before it can
convey title to the vendee. However, legal position is clear law that a
document like the sale deed in the present case, even though not admissible
in evidence, can be looked into for collateral purposes. In the present case
the collateral purpose to be seen is the nature of possession of the plaintiffs
over the suit land. ... ... ..."( emphasis supplied)
48. In A.Kishore v. G.Srinivasulu4, a Division Bench of this Court
held that an unregistered lease deed, though inadmissible in evidence
to prove right to immoveable property or for the purpose of proving
the terms of such lease or the lease itself, can be taken into
consideration and can be admitted in evidence for collateral facts or
purposes like character of possession.
49. We may point out that the plaintiffs have not chosen to mark
the passports of Late T.R. Srinivasan and others who allegedly
executed the unregistered sale deeds on 21.04.2000 in favour of 1st
defendant in the Court below. So their plea that the executants were
not in India on the date of execution of these documents is at present
not established. If they are given an opportunity to file them in the
(2003) 4 SCC 161
2004(3) ALD 817 (DB)
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Court below then, we feel that, there would be more clarity in the
matter. Then it would be possible for the Court to decide whether the
said unregistered sale deeds were indeed executed by Late
T.R.Srinivasan and others or not.
50. We may mention that certain documents purporting to be colour
photocopies of passports Late T.R.Srinivasan and others were filed in
this Court through a Memo. But we are not inclined to go into the said
documents as they were not filed in the Court below and it had no
opportunity to consider them.
51. Had the defendants filed the 11 unregistered sale deeds referred
to above, it would have been possible to ascertain whether there are
recitals therein about delivery of possession to the 1st defendant
therein and come to a prima facie conclusion about delivery of
possession to 1st defendant by late T.R. Srinivasan and others. So we
feel that even the defendants ought to be given an opportunity to file
them in the Court below.
52. If such recitals of delivery of possession to 1st defendant are
absent in these 11 unregistered sale deeds dt.21.4.2000, then the
defendants' plea of being in possession can be disbelieved.
53. But if such recitals of delivery of possession on 21.4.2000 to 1st
defendant exist, then the plaintiffs, who are claiming through Late
T.R.Srinivasan and others, have to show how they got back
possession of the A to C schedule properties after the said date . If not
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they cannot seek relief of temporary injunction of the nature prayed
for in the IA.NO.59 of 2021.
54. We are of the opinion that (a) non-filing by the plaintiffs in the
Court below of the certified copies or originals of the passports of the
executants of the unregistered sale deeds including late
T.R. Srinivasan and (b) non-filing by the defendants in the Court
below of the 11 unregistered sale deeds allegedly executed on
21.04.2000 by late T.R. Srinivasan and others, makes it difficult to
form an opinion on the rival claims of the parties.
55. The Court below in the impugned order held that dismissal of
the suits for specific performance filed by the 1st defendant establishes
that there is no title in his favour, but ignored the effect of proviso to
Section 49 of the Registration Act, 1908 with regard to use of
unregistered documents in evidence for proving the collateral
transaction of nature of possession.
56. The Court below also erred in applying the principle that
"possession follows title" on the basis that the plots are open plots,
without considering the restrictive application of the above principle
as held in Star Bone Mill and Fertiliser Company (2 supra) that it
would apply where proof of actual possession cannot reasonably be
expected, for instance in the case of wastelands, or where nothing is
known about possession one way or another. Admittedly, the suit
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schedule land is not waste land. That apart, admittedly, on the date of
filing of the suit, they were not even residents of India.
57. Moreover, the building permission Ex.P27 filed by the plaintiffs
cannot be treated as prima-facie proof proof of their possession.
58. We therefore are of the opinion that the impugned order cannot
be sustained and that the matter requires to be remanded back to the
Court below to consider the aspect of possession of the plaintiffs on
the date of filing of the suit, by giving opportunity to the parties -
(a) the plaintiffs to file certified copies or originals of the passports of
late T.R. Srinivasan and others who allegedly executed the 11
unregistered sale deeds on 21.04.2000 to prima facie prove that they
did not execute the said unregistered sale deeds; and
(b) the defendants to file certified copies / originals of the 11
unregistered sale deeds dt.21.04.2000 to prima facie prove that
possession was delivered to them by the executants under the said
documents.
59. Therefore, without expressing any opinion on the rival
contentions of the parties, we allow the Appeal, set aside the order
dt.01.06.2021 in I.A.No.59 of 2021 in O.S.No.13 of 2021 on the file
of the XVI Additional District and Sessions Judge, Ranga Reddy
District, at Malkajgiri and remand the said IA for fresh disposal for
the above purpose in order to decide the question about prima facie
possession of the parties on the date of filing of the suit.
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60. The parties are given two (02) weeks from the date of receipt
of copy of this order to file the documents referred to in para no.58
supra; and the Court below shall then decide the I.A.NO.59 of 2021
within three (03) weeks of filing of such documents after hearing both
sides.
61. The Court below shall keep in mind the principles governing
the grant of temporary injunction pending suit which were laid down
in Gujarat Bottling Co. Ltd. v. Coca Cola Co5., as under:
" The grant of an interlocutory injunction during the pendency of
legal proceedings is a matter requiring the exercise of discretion of
the court. While exercising the discretion the court applies the
following tests -- (i) whether the plaintiff has a prima facie case; (ii)
whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his
prayer for interlocutory injunction is disallowed. The decision
whether or not to grant an interlocutory injunction has to be taken at
a time when the existence of the legal right assailed by the plaintiff
and its alleged violation are both contested and uncertain and
remain uncertain till they are established at the trial on evidence.
Relief by way of interlocutory injunction is granted to mitigate the
risk of injustice to the plaintiff during the period before that
uncertainty could be resolved. The object of the interlocutory
injunction is to protect the plaintiff against injury by violation of his
right for which he could not be adequately compensated in damages
recoverable in the action if the uncertainty were resolved in his
favour at the trial. The need for such protection has, however, to be
weighed against the corresponding need of the defendant to be
protected against injury resulting from his having been prevented
from exercising his own legal rights for which he could not be
adequately compensated. The court must weigh one need against
(1995) 5 SCC 545, at page 574
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another and determine where the "balance of convenience" lies.
[See: Wander Ltd. v. Antox India (P) Ltd.6, (SCC at pp. 731-32.] "
62. We direct the parties to maintain status quo in all respects till
the disposal of the I.A.
63. Both parties are directed to co-operate with the Court below
for disposal of the I.A. within the time stipulated without seeking
unnecessary adjournments. No costs.
64. As a sequel, miscellaneous petitions pending if any in this Civil
Miscellaneous Appeal, shall stand closed.
____________________________
M.S.RAMACHANDRA RAO, J
___________________
T.VINOD KUMAR, J
Date: 17.08.2021
Ndr
(1990) Supp SCC 727
