Chikkala Chowdarayya vs Pingle Vasudeva Reddy
2021 Latest Caselaw 2448 Tel

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

           CIVIL MISCELLANEOUS APPEAL NO.326 OF 2021

                                    JUDGMENT:

(Per Sri Justice M.S.Ramachandra Rao)

This Appeal is preferred against the judgment and decree

dt.30.06.2021 in I.A.No.73 of 2021 in O.S.No.68 of 2021 of the

V Additional District and Sessions Judge, Ranga Reddy District at

L.B.Nagar.

2. The appellant is the plaintiff in the suit. He filed the said suit for a

perpetual injunction restraining the respondents from interfering with his

alleged peaceful possession of the suit schedule property.

3. The suit schedule property is an extent of 5082 sq. yds.,

equivalent to Ac.1.02 gts., out of Ac.1.30 gts., in Sy.No.60/Part, Kokapet

Village and Gram Panchayat, Gandipet Mandal, Ranga Reddy District,

Telangana State within specified boundaries.

Case of the appellant / plaintiff

4. According to the appellant, he purchased the suit schedule property

along with M/s. R.R. Estates and Constructions under a registered sale

deed Ex.P1 dt.20.11.2018 from the previous owner one G. Karunakar and

others for a consideration of Rs.1,83,75,000/-, that the purchasers were

put in possession of the land, and the same was also mutated in his favour

vide proceedings Ex.P3 dt.25.08.2019 issued by the Tahsildar, Gandipet.

5. The appellant contended that the co-owner M/s. R.R. Estates and

Constructions subsequently executed Ex.P6 registered release deed

11.02.2020 giving up its share of 1815 sq. yds., in appellant's favour, and

the appellant thus became the absolute owner of the entire suit schedule

property and was in possession thereof.

6. The appellant contended that the respondents, who have no right or

title over the suit schedule property, came to the suit schedule property

along with unsocial elements on 03.02.2021 and 05.02.2021 and were

illegally trespassing into the suit schedule property which was an open

land but the appellant had resisted the said attempts with the help of

village people. The appellant alleged that the respondents then left the

property threatening the appellant that they would come with more force

and dispossess him. He also alleged that he sought to make a complaint

before the Narsingi Police Station against the respondents, but the police

refused to register FIR on the ground that the dispute is a civil nature and

advised him to approach the Court.

I.A.No.73 of 2021 in O.S.No.68 of 2021

7. Along with the suit, the appellant filed I.A.No.73 of 2021 under

Order XXXIV Rules 1 and 2 CPC for an ad interim injunction restraining

the respondents from interfering with his alleged peaceful possession

over the suit schedule property by reiterating the contents of the plaint.

Written statement of the 1st respondent in the suit / counter filed by the 1st respondent in I.A.No.73 of 2021

8. The 1st respondent denied the title and possession of the appellant

over the suit schedule property and also denied the purchase by the

appellant and M/s. R.R. Estates and Constructions under the registered

sale deed Ex.P1 dt.20.11.2018. He further contended that Ex.P3

proceedings of the Tahsildar, Gandipet dt.25.08.2019 mutating the name

of the appellant itself states that 'the order does not affect the subsisting

possessory rights of third parties, if any', that the appellant's possession

is not recorded by authorities and he cannot rely on the mutation order.

9. It is contended by respondents 1 and 2 that the 1st respondent

purchased 1573 sq. yrds., equivalent to Ac.0.13gts. in Sy.No.60 Part

situated in Kokapet Village from G. Karunakar and 71 others (who were

also vendors to the appellant under Ex.P1 sale deed on 20.11.2018) under

registered sale deed Ex.R1 dt.19.11.2018 and since then the

1st respondent was in possession and enjoyment of the land; and the

2nd respondent also purchased 1815 sq. yds., equivalent to Ac.0.15 gts., in

Sy.No.60 Part from the same persons under another registered sale deed

Ex.R4 Document No.11157 of 2018 dt.20.11.2018 and the 2nd respondent

was also in possession and enjoyment of the land.

10. They contended that there was some mistake in the mentioning of

the boundaries and so the vendors rectified the same vide Rectification

deeds Exs.R2 and R5 both dt.13.01.2020.

11. They alleged that they approached the revenue authorities for

conversion of the land use from agriculture to non-agriculture, and after

due verification, the Revenue Divisional Officer, Rajendernagar had

issued proceedings granting conversion on complying with the

requirements under Act 3 of 2006 vide Ex.R3 dt.28.01.2020 and Ex.R6

dt.18.02.2020. They alleged that they are in joint possession of the suit

schedule property and they started construction activities over the site.

12. They contended that the appellant who did not have any rights

over the suit schedule property and who was also not in possession of the

property, filed the suit only to harass them. The other allegations made

by the appellant were denied.

Exparte ad-interim injunction dt.10.2.2021 granted by the trial court in IA.No.73 of 2021

13. The Court below initially granted ad interim injunction on

10.02.2021 in favour of the appellant.

C.M.A.No.100 of 2021

14. The respondents questioned it in C.M.A.No.100 of 2021 and in

I.A.No.2 of 2021 on 19.02.2021, this Court suspended the said ad interim

injunction on the ground that reasons were not furnished as mandated by

proviso to Order XXXIX Rule 3 CPC and also the judgment of the

Supreme Court in Shiv Kumar Chadha Vs. Municipal Corporation of

Delhi1.

(1993) 3 SCC 161

15. Ultimately, on 17.03.2021, it was brought to our notice that a

detailed docket order dt.10.02.2021 had been passed by the Court below

indicating the reasons for grant of ad interim injunction ex parte on

10.02.2021.

16. Since this was not brought to our notice, we had earlier passed the

order in I.A.No.2 of 2021 on 19.02.2021.

17. So we vacated the order dt.19.02.2021 in I.A.No.2 of 2021 in

C.M.A.No.100 of 2021.

18. However, taking into account the fact that the respondents had

filed counter affidavits in I.A.No.73 of 2021 in O.S.No.68 of 2021, this

Court directed the Court below to hear both sides and decide I.A.No.73

of 2021 within six weeks.

Order of the Court below in I.A.No.73 of 2021:

19. Thereafter, the impugned order has been passed on 30.06.2021 by

the Court below dismissing I.A.No.73 of 2021 and vacating the ad

interim injunction granted on 10.02.2021.

20. After referring to the contentions of the parties, the Court below

noticed that the vendor of both parties are one and same i.e., Sri G.

Karunakar and others; and that while the appellant claimed that he along

with M/s. R.R. Estates and Constructions purchased Ac.1.02 gts., out of

Ac.1.30 gts., under Ex.P1 sale deed dt.20.11.2018 for valid

consideration, the respondents contended that they purchased the

property under Exs.R1 and R4 dt.19.11.2018 and 20.11.2018, which had

been rectified under Exs.R2 and R5 rectification deeds.

21. Thereafter, the Court below stated that it carefully examined the

three sale deeds of the appellant and the respondents and that it was

apparent on the face of the record that the boundaries shown in Ex.P1

sale deed of the appellant were not in respect of Ac.1.02 gts., but they

were in respect of the entire land of the vendor admeasuring Ac.1.30 gts.

From this it drew a conclusion that the appellant was not in possession of

Ex.P1 property.

22. It also observed that the respondents had obtained rectification

deeds from their vendor, but the appellant did not choose to obtain any

rectification deed rectifying his boundaries to the extent of Ac.1.02 gts.,

and he had not filed any document to show that his vendor was owning

Ac.1.30 gts., in Sy.No.60/Part.

23. It observed that according to the parties, the appellant purchased

Ac.1.02 gts., and the respondents together purchased Ac.0.28 gts., out of

Ac.1.30 gts., but it is not know whether Ac.1.30 gts., is physically

available or not.

24. It observed that the burden lies on the appellant to prove the

existence of Ac.1.02 gts., in Sy.No.60/Part by placing cogent evidence,

but that evidence was not forthcoming.

25. It also observed that the appellant had not filed the pahani for the

year 2020 and so he did not establish possession on the date of filing of

the suit.

26. Reference is made to W.P.No.4191 of 2019 filed by the appellant

and his co-vendee M/s. R.R. Estates and Constructions for a direction to

the State Government not to take up fencing work of Government land

located in Sy.No.230 of Kokapet Village, Gandipet Mandal by closing

the road leading to Kokapet Village from outer ring road via Shanthi

Nagar and it stated that the appellant did not disclose about filing of this

Writ Petition and had suppressed material facts.

27. The Court below also referred to the written arguments submitted

by the appellant, wherein the appellant had submitted that his registered

sale deed was earlier in point of time to that of the respondents, and held

that though the appellant had knowledge about purchase of the land by

the respondents from the same vendor, he had suppressed it and did not

disclose it in his pleadings.

28. It also ignored Ex.P3 mutation proceedings dt.25.08.2019 issued

by the Tahsildar, Gandipet Mandal in the names of the appellant and his

co-vendee M/s. R.R. Estates and Constructions on the basis of one

sentence in the said order stating that the said 'order would not affect the

subsisting possessory rights of third parties, if any, in the said land' and

that it was confined only to the title rights only for updating the Revenue

Records. It went on to hold that the mutation proceedings do not confer

any possessory rights on the appellant and his co-vendee and they do not

speak of exclusive possession of the appellant and his co-vendee in

respect of Ac.1.02 gts., of land.

29. It took note of Ex.P5 joint inspection report filed by the appellant

and the contents of the said inspection report that the total extent of

Sy.No.60 is Ac.8.13 gts., and out of the same, Ac.1.02 gts., was the

appellant's land, Ac.0.01 gt., was affected in canal and Ac.0.07 gts., of

land was affected in buffer zone and observed that only the balance area

of Ac.0.34 gts was of the appellant, and not Ac.1.02 gts. It held that the

appellant did not choose to plead this fact in his pleadings.

30. On the pretext that the boundaries in Ex.P1 sale deed and Ex.P6

release deed are one and the same, it held that the boundaries of the land

claimed by the appellant are vague.

31. It then held that the land conversion certificates Exs.R3 and R6

issued by the Revenue Divisional Officer, Rajendernagar to the

respondents for conversion of usage of land from agriculture to non-

agriculture and the building permit plan and sanction obtained under

Exs.R7 and R8 indicate the possession of the respondents and that the

respondents had fenced the land with tin sheets and they had filed

photographs under Ex.R10 dt.25.01.2021.

32. It also observed that there is a cloud on the title of the appellant to

the suit schedule property and the suit schedule property requires to be

identified by localizing with reference to the sale deeds obtained by the

appellant from his vendor, and the simple suit for injunction is not

maintainable in the facts and circumstances of the case in view of the

judgment of the Supreme Court in Anathula Sudhakar v. Buchi

Reddy2. It therefore concluded that the appellant had failed to prove his

possession and enjoyment over the suit schedule property on the date of

filing of the suit.

The instant CMA

33. Assailing the same, this Appeal is filed.

34. Sri V. Srinivas, learned Senior Counsel appearing for Ms.

V. Chitralekha, learned counsel for the appellant and Sri R. Mahender

Reddy, learned Senior Counsel appearing for Sri D. Jagadishwar Rao,

learned counsel for the respondents.

The consideration by the Court

35. From the facts narrated above, it is clear that the appellant had

filed the suit for a perpetual injunction asserting his possession and

claiming that he is the owner of the suit schedule property having

purchased it under Ex.P1 sale deed 20.11.2018 along with M/s. R.R.

Estates and Constructions and that he became exclusive owner when his

co-vendee M/s. R.R. Estates and Constructions executed a registered

release deed Ex.P6 dt.11.02.2020.

36. Respondents 1 and 2 contended that the same vendors had

executed Ex.R1 sale deed on 19.11.2018 in favour of the 1st respondent

in respect of Ac.0.13 gts., equivalent to 1573 sq. yds., and that the

(2008) 4 SCC 594 : AIR 2008 SC 2033

2nd respondent purchased 1815 sq. yds., equivalent to Ac.0.15 gts., under

Ex.R4 dt.20.11.2018.

37. A perusal of the suit schedule indicates that the boundaries shown

therein are for Ac.1.02 gts., having on the

North: Sy.No.78/Part, South: Land of Chandu Bhai Jewellers, East: Sy.No.60/Part and West: Shanthinagar Road.

Exactly the same boundaries are found in Ex.P1 sale deed executed

in favour of the appellant and M/s. R.R. Estates and Constructions by

their vendor on 20.11.2018.

38. The claim of respondents 1 and 2 is for Ac.0.13 gts., and Ac.0.15

gts., respectively as mentioned above and they claim under Ex.R1 sale

deed dt.19.11.2018 and Ex.R4 sale deed dt.20.11.2018.

39. But admittedly the boundaries mentioned in these two documents

were not correct and this necessitated the execution of the Ex.R2

dt.13.01.2020 and Ex.R5 dt.13.01.2020 changing the northern boundary

as Sy.No.60/Part instead of "Sy.No.78/P".

40. Since what was purchased by both the respondents is far less than

Ac.1.02 gts., and 1st respondent claims to have purchased only Ac.0.13

gts., and the 2nd respondent claims to have purchased only Ac.0.15 gts.,

respectively, it is obvious that they could not have been put in possession

of the entire land contained between the boundaries mentioned originally

in Ex.R1 and Ex.R4 sale deeds.

41. We fail to understand how by simply looking at Ex.P1, Ex.R1 and

Ex.R4 sale deeds, a conclusion could have been drawn by the Court

below that the boundaries shown in Ex.P1 sale deed of the appellant were

not in respect of Ac.1.02 gts., but it was in respect of the entire land of

the vendor admeasuring Ac.1.30 gts. This, in our opinion, is a finding

based on no evidence.

42. The Tahsildar, Gandipet issued proceedings under Section 4(1) of

the A.P.Rights in Land Pattadar passbooks Act,1971 in Proceedings

No.MUT/B/947/2018 dt.25.08.2019 for grant of mutation in favour of the

appellant and his co-vendee in respect of purchase of Ac.1.02 gts., under

Ex.P1 and directed necessary changes to be carried out in the pahani for

the year 2019-20.

43. This mutation order was issued after calling for objections and

after verifying the documents and tallying with revenue records. This

order had not been challenged by the respondents by way of Appeal

under the A.P. Rights in Land and Pattadar Pass Books Act, 1971.

44. In Mohd. Kareemuddin Khan and Ors. vs. Syed Azam3, a

Division Bench of this Court held:

"the entries of the pahanis would constitute evidence for proof of the

factum of possession of the respondent as no contrary evidence has been

led to nullify the effect of that evidence".

45. Under Sec.6 of the said Act, there is a presumption of correctness

of entries in the record of rights. Such an order directing mutation of the

MANU/AP/0396/1996 = 1997 4 ALD 816 (DB)

appellant's name in the revenue records indicates prima-facie possession

of the appellant as on the date of the said order and thereafter too unless

the respondents are able to show how they got possession thereafter.

46. So the Court below cannot prima-facie doubt the transaction in

favor of the appellant under Ex.P1 at this point of time and state that it is

not known if Ac.1.30 gts (of which Ac.1.02 gts forms a part) is

physically available or not and the petitioner must discharge this burden,

and there is no evidence forthcoming.

47. Merely because there is an observation in the Tahsildar's

proceeding that the said order would not affect the subsisting possessory

rights of third parties, no conclusion could be drawn that the said order

would not affect the possessory rights of the respondents because there is

no evidence adduced on behalf of the respondents about their possession

of the suit schedule property.

48. As regards the observation of the Court below that the pahani for

the year 2020 has not been filed, when the pahani for 2019-20 contains

the name of the appellant as it stood by virtue of the mutation

proceedings Ex.P3 dt.25.08.2019, unless the respondents show that they

somehow obtained possession from the appellant in a manner known to

law, the state of affairs which existed in 2019-20 is presumed to continue

and the appellant is presumed to be in possession of the property also in

2020-21.

49. The fact that the respondents have obtained rectification deeds

from their vendor and the appellant did not choose to obtain any

rectification deed does not improve the case of the respondents in any

respect because the very execution of the said rectification deeds

indicates that the boundaries of the property mentioned in Exs.R1 and R4

sale deeds were incorrect and any recital therein about delivery of

possession of the property covered by the boundaries would not be of any

value.

50. We also do not agree with the Court below that there was

suppression of fact by the appellant with regard to filing of W.P.No.4191

of 2019 before this High Court because the said Writ Petition does not

relate to the suit schedule property at all but was in regard to seeking of

directions to the State Government not to take up fencing work of

Government land located in different Survey Number, i.e., Sy.No.230 of

Kokapet Village, Gandipet Mandal. There was no necessity for the

appellant therefore to mention about filing of the said Writ Petition.

51. Similarly, the observation of the Court below regarding Ex.P5

joint inspection report also cannot be correct prima facie because it is

nobody's case that the said inspection report was prepared after an

inspection was done with notice to the appellant, and such inspection

report would not bind the appellant if it was prepared behind the

appellant's back. Merely because the appellant filed the said report, it

cannot be said that the appellant is bound by the said report.

52. Coming to the observation made in para 18 by the Court below

regarding the release deed Ex.P 6 and the boundaries in the release deed,

we may point out that in Ex.P1 sale deed, the boundaries of the entire

undivided land of 5082 sq. yrds., are given. But the consideration was

split between the appellant (who paid for 3267 sq. yrds), and his

co-vendee M/s. R.R. Estates and Constructions (who paid for 1815

sq. yds). But inter se division of land as between them was not

demarcated in the Ex.P1 sale deed which was for the entire 5082 sq. yds.

Naturally when a release deed is executed in such circumstances, it

would mention that the co-vendee M/s. R.R. Estates and Constructions is

releasing its undivided share of 1815 sq. yds., by giving the boundaries of

the entire 5082 sq. yds. No exception can be taken to this because though

the extent of the share was agreed upon between both the appellant and

his co-vendee, there was no partition at the time of Ex.P1 nor was such

partition entered into prior to or at the time of Ex.P6 release deed.

53. We are also of the opinion that the Court below could not have

relied upon the land conversion certificates issued under Ex.R3 and R6

by the Revenue Divisional Officer, Rajendernagar in favour of the

respondents or the building permit plan and sanction by the Narsingi

Municipality under Exs.R7 and R8 because the order of the Revenue

Divisional Officer, Rajendernagar was challenged in W.P.No.15573 of

2021 by the appellant and the said Writ Petition was disposed of on

12.07.2021 directing the District Collector to consider the Appeal filed

by the appellant and decide it in 10 weeks. In any event, the proceedings

for conversion of land or for building permission cannot have any

evidentiary value with regard to determining possession of the property.

54. The photographs filed by the respondents also could not have been

relied upon by the Court below because there is no prima-facie evidence

that they relate to the land claimed by the appellant.

55. The Court below, in our opinion, also misunderstood the judgment

in Anathula Sudhakar (2 supra), merely because the respondents have

disputed title. This is because the very same judgment holds that persons

having clear title and possession suing for injunction, should not be

driven to the costlier and more cumbersome remedy of a suit for

declaration, merely because some meddler vexatiously or wrongfully

makes a claim or tries to encroach upon his property.

56. In the instant case the vendors of the appellant and the respondents

admittedly owned Ac.1.30 gts., of which the appellant claimed only

Ac.1.02 gts., while the respondents together claimed the balance Ac.0.28

gts. When there is no claim by the respondents to Ac.1.02 gts., claimed

by the appellant, there is no necessity for the appellant prima facie to also

sue for declaration of title.

57. In M.Kallappa Setty v. M.V.Lakshminarayana Rao4, the

Supreme Court had held that the plaintiff can on the strength of his

possession resist interference from persons who have no better title than

himself to the suit property; once it is accepted that the plaintiff was in

possession of the property, then his possession has to be protected as

against interference by someone who has no better title than himself and

(1973) 2 SCC 358

the plaintiff was entitled to the relief of injunction even if he had failed to

prove his title satisfactorily.

58. It is infact premature for the Court below to express any opinion

on the aspect of the need for appellant to seek relief of declaration in the

light of the above settled legal principles.

59. Prima facie we are of the opinion that the appellant's possession

of the suit schedule property is established by Ex.P3 mutation

proceedings dt.25.08.2019 and the appellant is therefore entitled to the

relief of temporary injunction pending suit.

60. Accordingly, the Appeal is allowed; order dt.30.06.2021 in

I.A.No.73 of 2021 in O.S.No.68 of 2021 of the V Additional District and

Sessions Judge, Ranga Reddy at L.B.Nagar is set aside and the said

I.A.No.73 of 2021 is allowed.

61. Pending miscellaneous petitions, if any, in this Appeal shall stand

closed.

____________________________ M.S.RAMACHANDRA RAO, J

_____________________ T. VINOD KUMAR, J

Date: 23-08-2021 Svv