M/S. Indukuri Life Spaces Llp vs Sri. C. Kumar Goud And 4 Others
2021 Latest Caselaw 4707 Tel

       THE HON'BLE SRI JUSTICE P. NAVEEN RAO
                        AND
       THE HON'BLE SMT. JUSTICE P. SREE SUDHA


      CIVIL MISCELLANEOUS APPEAL No.433 of 2021



JUDGMENT : (per HON'BLE SMT. JUSTICE P. SREE SUDHA)


      This Civil Miscellaneous Appeal is preferred against the

order and decree dated 01.10.2021 in I.A.No.303 of 2021 in

O.S.No.208 of 2021 passed by the II Additional District Judge,

Ranga Reddy District at L.B. Nagar, dismissing the application

filed by the appellant/plaintiff for grant of interim injunction

restraining the respondents therein from interfering into the

peaceful possession of the petition schedule property.

2. The appellant herein is the plaintiff and respondents

herein are the defendants before the trial Court. For the sake of

convenience, the parties are referred to as they were arrayed in

the suit before the trial Court.

3. In the grounds of appeal, the appellant/plaintiff

contended that the trial Court without giving any weightage to

Exs.P-1 to P-50 dismissed I.A.No.303 of 2021 in O.S.No.208 of

2021 and it ought to have considered that the petition schedule

property admeasuring Acs.20.07.51 gts. in Sy.Nos.438, 439 and PNR,J AND PSS, J

440/part and the respondents/defendants are claiming only an

extent of Acs.2-16 gts. in Sy.No.439, situated in Pasumamilla

Village, Pedda Amberpet Municipality and Abdullapurmet

Revenue Mandal, Ranga Reddy District. The plaintiff also

stated that, admittedly, Syed Mohammed Farooq Miya is the

owner of the extent claimed by the defendants and the

defendants have no valid title over the suit schedule property,

but the plaintiff's predecessors in the title had purchased the

said extent directly from the legal heirs of the Syed Mohamood

Farooq Miyan. The plaintiff further stated that the HMDA had

approved the layout of the plaintiff over the petition schedule

property and the same is placed before it under Ex.P-49 and

that the plaintiff has clear title and right over the suit schedule

property through multiple registered sale deeds Exs.P-1 to P-3

and registered Development Agreement-cum-Irrevocable GPA

under Exs.P-4 to P-25 covering the total extent of land and thus,

the plaintiff has right over the suit schedule property. The

plaintiff further submits that it has invested crores of money,

time and energy into the project on the suit schedule property

and had acquired the required permissions from the HMDA

under Ex.R-49 and RERA authorities under Ex.P-50. The

plaintiff also stated that though the defendants have no

Conveyance Deed, they are claiming ownership from Ex.R-23, PNR,J AND PSS, J

which appears to be a conditional Agreement of Sale on a plain

paper, but they have not filed any evidence to prove

subsequent development/transactions with respect to Ex.R-23.

It is also contended that though the defendants are claiming

that their names are reflecting in the pahanies, they failed to

prove their possession over the extent of suit schedule

property. The plaintiff further contended that the defendants,

on one hand, claiming to be the owners of the land under

Ex.R-23, on the other hand, they are claiming adverse

possession in respect of the said land, which is a disputed

question of fact. It is well settled law that adverse possession

can be considered only in case of hostile possession i.e. without

the consent of the owner. It is contended that as per the photos

under Ex.P-21 filed by the defendants the construction activities

are going on in the petition schedule property and they are in

possession of the suit schedule property and that even the

defendants have admitted the same and the said admission

itself is sufficient to grant injunction in its favour. The plaintiff

also contended that though the defendants are claiming that the

conversion of land in Sy.No.439 was done behind their back,

they did not initiate any steps against the conversion order and,

therefore, sought this Hon'ble Court to set aside the dismissal

of the impugned order dated 01.10.2021.

PNR,J AND PSS, J

4. The suit in O.S.No.208 of 2021 is filed by the plaintiff -

M/s. Indukuri Life Spaces LLP, a Limited Liability Partnership,

Hyderabad, against the defendants seeking to grant perpetual

injunction restraining the defendants, their henchmen,

subordinates, workmen or any other persons claiming through

or acting under them from interfering in any manner with the

plaintiff's peaceful possession and enjoyment over the suit

schedule property. During the pendency of the suit, I.A.No.303

of 2021 is filed by the plaintiff for grant of interim injunction

restraining the defendants from interfering into the peaceful

possession of the suit schedule property and the same was

dismissed by the trial Court vide order dated 01.10.2021.

5. The plaintiff was entrusted with a total extent of land

admeasuring Acs.20.07.51 gts. (equivalent to 81697.04

Sq. meters) in Sy.Nos.438, 439 and 440/part, situated in

Pasumamilla Village, Pedda Amberpet Municipality and

Abdullapurmet Revenue Mandal, Ranga Reddy District. It also

acquired the land admeasuring Acs.11.01 gts. in Sy.No.438 and

an extent of Acs.7-28 gts. in Sy.No.440/part and other extent of

lands in Pasumamilla Village, Abdullapurmet Revenue

Mandal, Ranga Reddy District. The flow of title regarding the

land in Sy.No.439 is that, originally one Syed Mohamood PNR,J AND PSS, J

Farooq Miyan was the sole and absolute owner of the land

admeasuring Acs.2-16 gts in the said survey number. After the

death of Syed Mohamood Farooq Miyan, his legal heirs have

divided the said property among themselves and that some of

them have executed the registered Agreement of Sale-cum-

GPA dated 09.12.2019, bearing document No.3392/2020; and

with respect to their share of land admeasuring Ac.1-16 gts.

some of the legal heirs have registered Agreement of Sale -

cum-GPA dated 21.12.2019, bearing document No.3393/2020;

and with respect to the land admeasuring Ac.0-25 gts. in favour

of M/s. Sri Aditya Infra, represented by its Managing Partner.

They inturn filed application for conversion of the above said

land from agricultural usage to non-agricultural usage vide

proceedings dated 28.09.2020. Later, the legal representatives of

Syed Mohamood Farooq Miyan also sold out their retained

extent of land to an extent of Ac.0-15 gunts to M/s. Sri Aditya

Infra by way of registered sale deed vide document

No.1806/2021, dated 08.02.2021 and sale deed document

No.1809/2021, dated 08.02.2021 and for an extent of Ac.0-13 gts.

of land and Ac.0-02 gts. respectively, and thus, M/s. Sri Aditya

Infra has alienated the land to an extent of Acs.2-16 gts.

(equivalent to 11616 Sq. Yards) in Sy.No.439/part in

Pasumamilla Village and enjoying the possession. Thereafter, PNR,J AND PSS, J

the plaintiff had presented an application dated 21.07.2020 to

HMDA for approval of the residential draft Layout and while

the said application is under process for approval by the

HMDA and also got registered the ongoing project in the suit

schedule property under the name and style of "INDUKURI

LAKE SHORE" with the Telangana State Real Estate

Regulatory Authority, the defendants without any right, title

and interest over the suit schedule property started interfering

and disrupting the functioning of the development activities

upon the suit schedule property, therefore, the plaintiff filed the

present application for grant of interim injunction restraining

the defendants from interfering into the peaceful possession

and enjoyment of the suit schedule property.

6. On the other hand, the defendants filed counter affidavit

denying petition averments of the plaintiff. They admitted that

Syed Mohamood Farooq Miyan was the pattadar and possessor

of the land to an extent of Acs.2-16 gts. in Sy.No.439 situated in

Pasumamilla Village, but denied execution of sale deed by the

legal representatives of Syed Mohamood Farooq Miyan. They

further stated that there is no document filed by the plaintiff or

contents of the documents filed by the plaintiff establishes that

they are the legal heirs of late Syed Mohamood Farooq Miyan PNR,J AND PSS, J

and got divided the land in Sy.No.439. It is further stated that

when the defendants are in physical possession and cultivation

of the land admeasuring Acs.2-16 gts. since more than 50 years,

the question of dividing the land between the alleged legal

heirs of late Syed Mohamood Farooq Miyan would not arise

and all the documents filed by the plaintiff are bogus and

created one. They mainly contended that their paternal grand-

father, namely Chetty Ramaiah had purchased an extent of

Acs.2-16 gts. in Sy.No.439 of Pasumamilla Village,

Abdullapurmet Revenue Mandal, Ranga Reddy District, from

the original pattadar Syed Mohamood Farooq Miyan in the

year 1966 and since then, they were in uninterrupted physical

possession of the land and cultivating the same till his death in

the year 1977. Subsequent to his death, his seven sons were put

in physical possession and they were cultivating the said land

and the name of grand-father of the defendants, namely Chetty

Ramaiah was clearly recorded in the Revenue records in

possessory column since 1966 to till his death in the year 1977

and the certified copies of pahanies from 1967 to 2019-2020

clearly establish about the physical possession of the

defendants and their agnates in respect of the land in an extent

of Acs.2-39 gts. in Sy.No.439. They also contended that the

panchanama conducted by the Tahsildar, Hayathnagar PNR,J AND PSS, J

Mandal, through the Revenue Inspector, in the year 2000

clearly disclose that the defendants and their agnates are

cultivating the said land and enjoying physical possession of

the said land till date. They further submitted that the persons

claiming to be the legal representatives of late Syed Mohamood

Farooq Miyan without their knowledge and in collusion with

the Revenue authorities got mutated their names in the

Revenue records as Pattadars and obtained pass books and title

deeds. They also contended that it is settled principle of law

that under ROR Act, the pattadar, who is not in possession of

the land, is not entitled for issuance pass books and title deeds.

They also contended that when the defendants are in

possession of the land to an extent of Acs.2-16 gts. in Sy.No.439,

there is no necessity to interfere with the alleged development

work of the plaintiff. It is also contended that the plaintiff in

collusion with the alleged land owners is trying to grab the

land of the defendants and it is only a developer and GPA

holder of the land owners and, therefore, the present suit filed

by the plaintiff is not maintainable. They further stated that one

Syed Isa Khundmiri and Syed Kunja Fathima jointly filed a suit

in O.S.No.983 of 2016 on the file of IV Additional District Judge,

Ranga Reddy District, for partition and cancellation of GPA in

respect of the land in Sy.Nos.48 to 51, 53, 54, 81, 82, 92, 93, 96, PNR,J AND PSS, J

423, 424 and 439 of Pasumamilla Village, Abdullapurmet

Revenue Mandal, Ranga Reddy District, the defendants filed

impleading petition in the said suit and the same is coming up

for counter. It is also contended that the defendants also

submitted an application dated 20.04.2019 before the Tahsildar,

Abdullapurmet Revenue Mandal, for issuance of Pass Books in

respect of land admeasuring Acs.2-16 gts. in Sy.No.439 of

Pasumamilla Village, and also an application dated 08.01.2020

requesting not to mutate the names of any other persons as

they are in possession of the land for more than 50 years. The

defendants, therefore, sought to dismiss the above said

application.

7. Now it is for this Court to see whether the trial Court

erred in not granting the injunction or not?

8. The plaintiff is the absolute owner and possessor of the

land in an extent of Acs.20-07.51 gts. in Sy.No.438, 439 and

440/part of Pasumamilla Village, Abdullapurmet Revenue

Mandal, Ranga Reddy District, whereas the defendants are

claiming to be the owners of the land to an extent of Acs.2-16

gts. in Sy.No.439. Therefore, the main dispute is only with

regard to an extent of Acs.2-16 gts. The plaintiff contended that

it has purchased the land from the legal heirs of Syed PNR,J AND PSS, J

Mohamood Farooq Miyan, who is the absolute owner of the

land, whereas the defendants stated that their paternal grand-

father purchased the said land in the year 1966 from Syed

Mohamood Farooq Miyan and from then onwards, his legal

heirs and agnates are in possession of the said land and also

cultivating the same and that their names were also recorded in

the pahanies from 1966 to 2019-20 in possessory column and, as

such, the alleged sale deeds executed by the legal

representatives of Syed Mohamood Farooq Miyan are not valid

and binding on them. Admittedly, the plaintiff filed sale deeds,

which are registered documents and thus, primafacie, they

proved title and possession over the suit schedule property.

The trial Court observed that the defendants filed pahanies and

are in possession of the land and granted injunction in their

favour. No doubt, they filed pahanies but they did not file

pattadar pass books. When the defendants claim to be residing

in the suit schedule property for more than 50 years, why they

did not submitt an application for issuance of pattadar pass

books till 20.04.2019 is not explained by them.

9. Learned counsel for the plaintiff would contend that the

defendants have no title deeds over the suit schedule property

and the Revenue records filed by them cannot be treated as title PNR,J AND PSS, J

deeds. However, the trial Court held that the defendants have

proved their possession over the suit schedule property.

10. It is the settled principle of law that in a suit for

injunction, prima-facie, the parties must establish their

possession over the suit schedule property. In a decision

reported in MARIA MARGARIDA SEQUEIRA FERNANDES

V/s. ERASMO JACK DE SEQUEIRA1 the Hon'ble Apex Court

held in para 70, which is extracted hereunder:

'It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:

(a) who is or are the owner or owners of the property;

          (b)     title of the property;
          (c)     who is in possession of the title documents;
          (d)     identity of the claimant or claimants to possession;
          (e)     the date of entry into possession;
          (f)     how he came into possession--whether he purchased

the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;

(h) if taken on rent, licence fee or lease--then insist on rent deed, licence deed or lease deed;

(2012) 5 SCC 370 PNR,J AND PSS, J

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc.;

(j) subsequent conduct i.e. any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.'

11. Further, though the defendants stated that they are in

possession of Ac.2-16 guntas of land and filed pahanies to

prove the same, they have not stated on which side of the

survey number they possessed Ac.2-16 guntas and that they

have also not pleaded that the plaintiff encroached into their

land. It is the case of the defendants that they are in possession

of Acs.2-16 gts. of land in Sy.No.439, but they cannot disrupt

the construction activities in an extent of Acs.20.07.51 gts. in

Sy.Nos.438, 439 and 440/part, situated in Pasumamilla Village,

Abdullapurmet Revenue Mandal, Ranga Reddy District. If at all

any construction is going on in the suit schedule property, it is

for them to approach the appropriate Forum for necessary

relief.

12. It is to be noticed that both the parties are claiming

ownership in an extent of Acs.2-16 gts. in Sy.No.439, but the PNR,J AND PSS, J

plaintiff herein filed only suit for grant perpetual injunction

restraining the defendants, their henchmen, subordinates,

workmen or any other persons claiming through or acting

under them from interfering in any manner with the plaintiff's

peaceful possession and enjoyment over the suit schedule

property. On one hand, the defendants stated that it has

purchased the land from the original pattadar way back in the

year 1966 and are in possession of the said land and also

cultivating the same. In order to prove the same, they mainly

relied upon Ex.R-23 - Original Agreement in Urdu dated

02.09.1966 along with English translated copy. A perusal of the

said document shows that it was executed by Syed Mohamood

Farooq Miyan in favour of Sri Chetty Ramaiah for an extent of

Ac.2.10 guntas for his own needs and necessities for a total sale

consideration of Rs.1,500/- and received Rs.100/- as advance

with a condition that the advance amount of Rs.400/- should be

paid within one month and the balance amount of Rs.1,000/-

also should be paid within one month to register the property

in the name of vendee, otherwise the Agreement of Sale will be

treated as cancelled. But, the defendants failed to file the said

sale deed registered by the original pattadar in the name of

paternal grand-father after payment of the entire amount.

Moreover, Ex.R-23 is executed for an extent of Ac.2.10 guntas PNR,J AND PSS, J

but not Ac.2.16 guntas. As such, they also contended that they

perfected title by adverse possession. The issue of ownership in

respect of the suit schedule property between the plaintiff and

defendants is to be decided by appropriate Court in a suit for

declaration of title.

13. The plaintiff is engaged in the business of real estate and

constructing and developing the lands including the suit

schedule property in Sy.No.439 by obtaining necessary

permissions from the concerned departments. He also obtained

permission for conversion of land from agricultural usage to

non-agricultural usage on 28.09.2020. The plaintiff has taken up

the construction activity in an extent of Acs.20.07.51 gts. in

Sy.Nos.438, 439 and 440/part, and the extent of land in dispute

is only an extent of Acs.2-16 gts. in Sy.No.439. The plaintiff

gave an application to HMDA on 21.07.2020 and HMDA

approved draft residential layout with housing under gated

community (with compound wall) in the entire suit schedule

property on 09.07.2021 and unless the defendants are not

restrained from interfering with the possession of the plaintiff

over the suit schedule property, irreparable loss would be

caused to the plaintiff. However, the trial Court without

considering the documents filed by the plaintiff and only by PNR,J AND PSS, J

relying upon the pahanies filed by the defendants held that the

defendants are in possession of the suit schedule property and

granted injunction against the plaintiff. The said order dated

01.10.2021 is not proper and is liable to be set aside.

14. In the result, this Civil Miscellaneous Appeal is allowed

setting aside the order and decree dated 01.10.2021 in

I.A.No.303 of 2021 in O.S.No.208 of 2021 and the

respondents/defendants are restrained from interfering in to

the peaceful possession of the suit schedule property. No order

as to costs.

15. Miscellaneous applications pending, if any, shall stand

closed.

________________________________ JUSTICE P. NAVEEN RAO, J

___________________________________ SMT. JUSTICE P. SREE SUDHA

Date: 31.12.2021.

Msr/pgs