M/S Vidya Vikas Samithi Trust, ... vs Syed Mehdi Ali Khan Sinkander
2021 Latest Caselaw 502 Tel

              THE HONOURABLE JUSTICE G. SRI DEVI

     I.A.No.1 of 2015, I.A.No.1 of 2020 and I.A.No.6 of 2020 in/and

                     APPEAL SUIT No. 680 of 2014

JUDGMENT:

1. The appellant, who is the plaintiff, assailing the judgment and

decree dated 25.11.2014 passed in O.S.No.9 of 2012 by the

Additional District Judge, Vikarabad, Ranga Reddy District, filed the

present appeal.

2 The trial Court dismissed the suit filed by the appellant Trust

for perpetual injunction against the respondents from interfering

with its peaceful possession and enjoyment over the suit schedule

lands.

3. The facts of the case are that appellant Trust is a registered

one and purchased the lands in Sy.No.125 Part, admeasuring Ac.2-

21 guntas, and Sy.No.126 Part, admeasuring Ac.3-35 guntas, totally

admeasuring Ac.6-16 guntas of Tandur village, and in Sy.No.52 Part,

admeasuring Ac.4-34 guntas; Sy.No.53 Part, admeasuring Ac.2-04

guntas; Sy.No.54/C, admeasuring Ac.3-12 guntas; Sy.No.55 Part,

admeasuring Ac.13-11 guntas; and Sy.No.56/B, admeasuring Ac.3-

38 guntas., totally admeasuring Ac.27-19 guntas of Malreddypalli

village, Tandur Mandal, R.R. District. The said lands were originally

owned and possessed by M/s. Deccan Porcelain and Potteries

Limited a company incorporated under the Companies Act. The

said company was ordered to be wound up under Section 439 of the

Indian Companies Act, 1956, by an order dated 19.08.1960 in O.P.

No.4 of 1959 on the file of the High Court of Andhra Pradesh. The

said winding up order was confirmed in O.S.A. No.4 of 1960 dated

06.01.1961 passed by the Division Bench of the High Court of A.P.

The said company's assets are consisting of building, machinery and

lands in Sy.No.125 part, admeasuring Ac.2-21 guntas., and

Sy.No.126 Part, admeasuring Ac.3-35 guntas totally admeasuring

Ac.6-16 guntas of Tandur village, and in Sy.No.52 Part, admeasuring

Ac.4-34 guntas; Sy.No.53 Part, admeasuring Ac.2-04 guntas;

Sy.No.54/C, admeasuring Ac.3-12 guntas; Sy.No.55 part,

admeasuring Ac.13-11 guntas and Sy.No.56/B, admeasuring Ac.3-38

guntas, totally admeasuring Ac.27-19 guntas of Malreddypalli

village, Tandur Mandal, R.R. District. The High Court of A.P, by an

order dated 30.03.1973 in C.A. No.39 of 1973 directed the Official

Liquidator to sell all the assets of the company consisting of

building, machinery and suit schedule property by calling for

tenders. Accordingly, the Official Liquidator called for tenders by

way of publication in English daily 'Deccan Chronicle' dated

07.04.1973 and Urdu daily Siasat, dated 04.04.1973. The appellant

Trust offered to purchase the said lands for a sum of Rs.80,000/- and

the bid of the appellant was accepted by an order dated 20.04.1973 in

Company Application No.39 of 1973. The appellant trust paid the

entire sale consideration and by an order dated 09.11.1973 in C.A.

No.39 of 1973 the High Court confirmed the sale in favour of the

appellant Trust and further the Official Liquidator was authorized to

execute a registered sale deed in respect of the suit schedule

property at the expenses of the purchaser i.e., the appellant Trust.

The appellant Trust was put in possession as per letter dated

13.11.1973 issued by the Official Liquidator. Since there was a

discrepancy with regard to total extent of land, the same was

corrected by the High Court, by an order dated 22.11.1980 passed in

Company Application Nos.93 of 1978 and 30 of 1980 in Company

Petition No.4 of 1959. The High Court appointed an Advocate

Commissioner to make spot inspection relating to the property sold

by the Official Liquidator at Malreddypalli and Tandur villages and

to take measurements and prepare plans after noting the physical

features and identification of the property. One K. Venkataswamy,

Retired Deputy Inspector of Survey and Land Records was

appointed as Commissioner by an order dated 06.07.1979 and the

said Commissioner submitted his report dated 9/16.11.1979 stating

that he verified the pahani and map of Tandur village in the light of

the publication as to sale made in the 'Deccan Chronicle' and 'Siasat'

dated 04.04.1973 and 07.04.1973 and that as per the entries in the

pahani, in pattadar column, the name of one Mir Mohammed Ali

Khan was recorded in respect of Sy.Nos.53, 54/C, 55 and 57/B, but

there is no such person in the village claiming the said lands and in

possession column it was recorded as "Cheeni Factory" i.e., M/s.

Deccan Porcelain and Potteries Limited. The Commissioner

appointed by the High Court inspected the properties owned by

M/s. Deccan Porcelain and Potteries Limited and demarcated the

lands in Sy.Nos.53, 54/C, 55 and 56 of Malreddypalli and S.Nos.125

and 126 of Tandur and reported that the appellant Trust is in

possession and enjoyment of the said lands. Accordingly, the

Official Liquidator executed a registered sale deed dated 24.11.1983

on behalf of M/s. Deccan Porcelain and Potteries Limited in favour

of the appellant Trust.

4. The appellant Trust in pursuant to the purchase of the suit

schedule property established a Degree college in the name of

Peoples Degree College in the year 1973 and the same was affiliated

to Osmania University and various courses were running in the said

degree college with 1000 students. The name of the appellant Trust

was also recorded in the revenue records as pattadar, owner and

possessor of the suit schedule property. The appellant Trust soon

after the purchase constructed pucca buildings, sheds and started

running various courses. All the lands in various survey numbers

are contiguous and abutting to each other and accordingly degree

and junior colleges were established in part and parcel of the said

lands and also using the part of the land as playground and the said

lands are covered with fencing. The respondents/defendants

claiming to be the legal heirs of one late Mir Mohd. Ali Khan came

to the suit schedule properties on 23.06.2012 at 4.00 P.M

accompanied by antisocial elements and thereby tried to interfere

with the peaceful possession and enjoyment of the suit schedule

property, as such the appellant Trust approached the police, Tandur,

however the police refused to interfere. Therefore, the appellant

Trust was constrained to file the suit for perpetual injunction

restraining the respondents from interfering with its peaceful

possession and enjoyment over the suit schedule property.

5. The respondents/defendants filed written statement denying

the claim of the appellant Trust and claimed that they are the legal

heirs of Mir Mohd. Ali Khan and also denied the possession and

enjoyment of M/s Deccan Porcelain and Potteries Limited and

further claimed that their late father was in possession of the suit

schedule property during his life time and thereafter they continued

to be in possession. They further pleaded that they have no

knowledge about the liquidation proceedings, however they have

accepted the commissioner's report in part to the extent of lands so

far in recording the name of Mir Mohd. Ali Khan in pattadar column

but denied the fact of possession of M/s. Deccan Porcelain and

Potteries Limited which was recorded in possession column as

Cheeni Factory. They further categorically stated that "mere entries

in revenue records do not confer any valid title or right over the suit

schedule property". The defendants further stated that the then

Joint Collector in File No.B5/6028/91, dated 16.09.2003 directed to

record their names holding that there was a clause in the sale deed

executed by the Official Liquidator dated 24.12.1983 as "sale will be

without any warranty or guarantee as to title and possession of the

land and this sale shall be without any liability on the part of the

Official Liquidator for the claims that may be made by third

parties". The said clause was incorporated pursuant to the orders

passed by the High Court in CA No.93 of 1978 and CA No.30 of

1980. Therefore, the defendants sought dismissal of the suit.

6. On the basis of the above pleadings, the Court below framed

the following issues.

1. Whether the plaintiff is entitled for the relief of injunction?

2. To what relief.

7. On behalf of the plaintiff, Managing Trustee of the plaintiff

was examined as P.W.1 and another Trustee was examined as P.W.2

and independent witnesses were examined as PWs.3 to 5 and

marked Exs.A1 to A37. On behalf of the defendants, defendant No.1

was examined as D.W.1 and marked Exs.B1 to B48.

8. The Court below dismissed the suit holding that it is for the

plaintiff to establish its title prima facie over the suit schedule

property by virtue of which it is claiming its possession and

enjoyment over the suit schedule property. The plaintiff has

examined 5 witnesses. PWs.1 and 2 have reiterated the contents of

plaint claiming that the suit schedule property belong to Deccan

Porcelain and Potteries Limited. The evidence of PWs.3 to 5 shows

that the plaintiff Trust is located in the suit schedule property and is

carrying on with its educational activities, but none of the three

witnesses could mention the details of the suit property i.e., survey

numbers and the location of the structures etc. The trial Court

further held that since the suit is one for injunction simplicitor, it is

for the plaintiff to establish its possession and enjoyment over the

suit schedule property. That Exs.A5 to A7 shows that the plaintiff is

a Trust incorporated for the purpose of imparting education to the

poor people. As per Exs.A17 to A19, the plaintiff purchased the suit

lands for a total consideration of Rs.80,000/- and the plaintiff filed

Exs.A1 and A2 to show that the Official Liquidator executed a sale

deed in favour of the plaintiff with regard to the lands belonging to

Deccan Porcelain and Potteries Limited as shown in Ex.A1. The

plaintiff filed Exs.A10 to A14 to show that it has paid sale

consideration to the Official Liquidator. The plaintiff claimed that it

is in possession and enjoyment of the suit schedule property by

virtue of title under Exs.A20 to A37 and contended that the

document marked as Ex.A1 to A37 not only established their title

but also their possession and enjoyment over the suit schedule

property. The trial Court held that while a perusal of the oral and

documentary evidence adduced by the defendants vide Exs.B1 to

B28 and B48 show that the suit schedule property covered under

Survey Nos.53 to 56 are patta lands belonging to one Mir

Mahamood Ali Khan who is stated to be father of defendants 1 to 6

and subsequent to the death of Mir Mohamood Ali Khan, the

defendants have acquired title and possession of the said lands of

Ac.29.36 gts.in Survey Nos.53 to 56 of Malreddypally village which

is part and parcel of the suit schedule property claimed by the

plaintiff. The defendants filed pattadar passbooks and title deeds

issued in favour of the defendants 1 to 6 which are marked as

Exs.B.36 to B.47 and also filed Exs.B29 to B35 to show that they have

agitating before the RDO., Joint Collector. Against the orders of the

MRO, an appeal was filed before the Joint Collector, R.R. District,

who set aside the orders of the MRO mutating the name of the

plaintiff Trust over the suit lands and further they contended that

the proceedings under Exs.B29 to B35 clearly show that the mutation

with regard to the suit lands in the name of the defendants, as such

contended that by virtue of acquiring title over the said lands, they

are still in possession and enjoyment of the said lands which are part

and parcel of the suit lands. The trial Court held that though the

plaintiff by virtue of sale deed under Ex.A1 contended that the

plaintiff Trust has been handed over possession over the suit

schedule property, but no documentary evidence was adduced by it

to show that the Official Liquidator has handed over the suit

schedule property physically to the plaintiff. Thus, the Court below

has held that the plaintiff failed to produce any document to show

that the suit schedule property covered under Ex.A1 has been

physically handed over to their possession by the Official Liquidator

and further held that the proceedings of the High Court itself shows

that the property covered under Ex.A1 cannot be taken as property

having clear title. The fact that Ex.A16 mentions no warrantee or

guarantee as to the title and possession clearly goes undermine the

statements of PWs.1 and 2 that any possession of suit property

leaving alone the property covered under Sy.No.53 to 56 claimed by

the defendants is handed over to the plaintiff. Thus, when Ex.A16

itself is accepted and the property covered under Ex.A1 does not

have proper title, the question of the said property being transferred

in favour of the plaintiff does not arise so also the possession and

further held that while on the other hand the very documents of the

plaintiff support the contentions of the documents of the defendants

that they are in possession and enjoyment of the suit property to an

extent of Ac.29.36 guntas., in Sy.Nos.53 to 56 by virtue of their title,

as such held the issues against the plaintiff and accordingly

dismissed the suit.

9. The present appeal is filed against the dismissal of the suit

contending on various grounds.

10. The points that arise for consideration are that: (i) whether the

trial Court is right in dismissing the suit for perpetual injunction? (ii)

whether the trial Court is right in holding that the plaintiff failed to

establish its title in a suit for injunction simplicitor without framing

any issue in this regard? (iii) Whether the trial Court is right in

holding that the plaintiff has failed to establish its possession over

the suit lands.

11. The learned Counsel for appellant and the respondents and

impleading petitioners have filed written arguments in addition to

the oral submissions made by them.

12. The learned Counsel for the appellant submitted that the suit

was filed for perpetual injunction simplicitor based on Ex.A.1, sale

deed, executed by the Official Liquidator and the possession of the

suit schedule property was delivered by the Official Liquidator

under Ex.A.2, letter, dated 13.11.1973. That in pursuant to the

mutation, the name of the appellant in the Pahani was incorporated

for the years 1992-93 to 2011-12 under Exs.A.20 to A.37. Since there

was no issue framed relating to title, the Court below ought not to

have called upon to investigate or examine or render any finding on

the question of title and relied upon the Judgment of the Supreme

Court in Anantula Sudhakar v. Buchireddy1, wherein it was held

that "but the finding of title cannot be recorded in a suit for injunction,

unless there are necessary pleadings and proper issue regarding title". The

appellant further contended that no issue has been framed on the

question of title and in the absence of any issue on the question of

title, the Court below erred in deciding the title. Therefore, he

submitted that suit filed for injunction simplicitor is maintainable

without seeking the relief of declaration. The Counsel for the

appellant further submitted that the Official Liquidator after inviting

advertisements in Siasat, dated 30.03.1973 and Deccan Chronicle,

dated 04.04.1973, accepted the bid and that the High Court

(2008) 4 SCC 594

confirmed the sale, and accordingly the Official Liquidator delivered

possession under Ex.A2-letter, dated 13.11.1973. The

respondents/defendants have not challenged auction sale till date.

Therefore, they cannot be permitted to question the title and

possession of the appellant and he heavily relied on Ex.A.16 Order

passed by the High Court. He further submitted that the

respondents had complete knowledge of sale and it is evident from

the fact that the respondents never raised any dispute even though

the Commissioner appointed by the Court visited the suit schedule

property, drew up a plan attached to Ex.A.1, sale deed, and fixed

boundaries to measure and if really the respondents were in

possession, they would have certainly raised objection. The

appellant further contended that when the sale is confirmed and

becomes absolute, the same has to be challenged before appropriate

forum and till date, the respondents have not challenged the same.

He further contended that the effect of disclaimer clause under

Ex.A.1, sale deed, merely accepts the liability on the part of the

Official Liquidator, in the event of future claim from any third party.

The said clause means that when a claim is raised by third party, the

claim has to be tested on merits, and if it is established that third

party has substantial claim over the Judgment Debtor, the Official

Liquidator is not liable. Therefore, on the basis of the disclaimer

clause, no rights were taken away from the appellant by merely

incorporating the said clause in the sale deed. The said clause has to

be read in entirety, therefore, he contends that first limb of the clause

conveys all the right, title, ownership and possession and in the

second limb, it was incorporated that the sale shall be without any

warranty or guarantee and without any liability on the part of

Official Liquidator. Therefore, it cannot be read in isolation. Thus, he

contends that the evidence of P.W.1 to P.W.5 coupled with

documentary evidence and also pleadings goes to establish that the

plaintiff is in possession and enjoyment of the suit schedule

property, all along for the last several decades, but the trial Court

misinterpreted the oral and documentary evidence, thereby came to

an erroneous conclusion and dismissed the suit, as such sought to

set aside the impugned Judgment passed by the trial Court.

13. On the other hand, the learned Counsel for respondents 1 to 6

in addition to oral arguments also filed written submissions stating

that the appellant failed to establish its possession over the suit

schedule property as on the date of filing of the suit and hence the

appellant is not entitled to permanent injunction against the

respondents. He contended that in a suit for injunction under

Section 38 of the Specific Relief Act, the plaintiff is required to

establish its possession over the suit schedule property as on the

date of filing of the suit and relied upon the Judgment of the

Supreme Court in Balkrishna Dattatraya Galande v. Balkrishna

Rambharose Gupta2, wherein it was held that under "Section 38 of

the Specific Relief Act, an injunction restraining/disturbing the possession

of the defendant may not be granted in favor of the plaintiff unless he

proves that he was in actual possession of the suit schedule property as on

the date of filing of the suit". Basing on the said Judgment, he

contended that the plaintiff has failed to establish its possession over

the suit schedule property as on the date of filing of the suit. He

disputed the claim of the plaintiff under Ex.A.1, sale deed, stating

that the same is not supported by any evidence. He further

submitted that a clause was incorporated in the sale deed, Ex.A.1,

pursuant to the specific direction of the High Court, which was

passed after noticing the fact that the revenue records reflected the

name of Mir Mohammed Ali Khan as pattadar of the suit schedule

property. He also contended that the plaintiff relied on the report of

the Commissioner as referred to in Ex.A.16, Order, dated 22.11.1980

passed by the High Court was misplaced as the Commissioner has

no authority to decide the possession of the suit schedule property.

It is stated in his report that the possession has been handed over to

the plaintiff cannot be relied upon. He further contended that the

defendants did not have any notice regarding winding up

(2019) SCC Online SC 135

proceedings before the High Court even the public notice that is

stated to be issued during the winding up proceedings mentions the

land in Tandur Village and not Malreddipally Village, where the

lands are actually located. He also contended that the averment

made by the plaintiff that it had constructed structures over the suit

schedule land is contrary to the admission of P.W.1 in his cross-

examination. Therefore, he contended that the plaintiff cannot claim

possession over the suit schedule property claiming that it had made

constructions over it. He, further, contended that P.Ws.3 to 5 failed

to identify the location of the suit schedule property and further

argued that photographs filed by the plaintiff do not in any manner

establish their possession over the suit schedule property. He

heavily relies upon the Order passed by the Joint Collector, dated

16.09.2003, under Ex.B.33, contending that the Joint Collector

specifically noted that the mutation was carried out without any

notice to the pattadar Mir Mohammed Ali Khan and further the

Joint Collector held that M/s.Deccan Porcelean and Potteries

Limited has no title over the suit schedule land and cannot pass on

title to the plaintiff. Therefore, he contended that the Order of the

Mandal Revenue Officer mutating the name of the plaintiff as

pattadar and possessor of the suit schedule property was set aside

by the Joint Collector and the aforesaid order was not challenged by

the plaintiff and the same attained finality. He contended that the

Order of the Joint Collector dated 16.09.2003 was implemented by

the Mandal Revenue Officer vide proceedings dated 11.01.2012

under Ex.B.34 and relies upon the said proceedings stating that Mir

Mohammed Ali Khan was the pattadar and possessor of the said

lands. Therefore, he contended that the plaintiff has miserably failed

to establish their possession and title over the suit schedule property

as on the date of filing of the suit and further contended that the

defendants are the owners and possessors of the suit schedule

property as per the Revenue Records and Pattadar Passbooks and

Title Deeds were issued in favour of the respondents.

14. The appellant Trust is claiming all its rights, possession and

enjoyment over the suit schedule properties by virtue of purchase in

a public auction conducted by the Official Liquidator pursuant to

the directions of the High Court of Andhra Pradesh in OP No.4 of

1959. The order of the High Court which was marked as Ex.A16 is

very crucial document for adjudicating the rival claims of the

appellant and the respondents. It is evident from Ex.A16 order

dated 22.11.1980 that the Official Liquidator called for tenders by

publication in the English Daily Deccan Chronicle dated 07.04.1973

and Urdu daily Siasat dated 04.04.1973. In the schedule of

properties, item 1, was the land admeasuring Ac.30.07 in Sy.Nos.53,

54, 55 and 56 of Tandur. Items 2 and 3 are building and machinery.

On a report of the Official Liquidator, the said tender of the Vidya

Vikas Samithi for Rs.80,000/- was accepted by order dated

20.04.1973 in CA No.39/73. The Official Liquidator reported that

Vidya Vikas Samithi paid the entire amount within the time granted

by the Court and by order dated 09.11.1973 in CA No.39 of 1973 the

sale was confirmed in favour of Samithi and possession of the land

was directed to be given to the said Samithi and the Official

Liquidator was authorized to duly execute and register a sale deed

in respect of the said property at the expenses of the purchaser

whenever he was so requested. Before the properties were put to

sale, a letter was addressed by the Official Liquidator to the

Tahsildar, Tandur. The Tahsildar sent a reply in his letter

No.A2/4960/1966 dated 04.03.1967 giving the particulars of the

landed property of the company "Deccan Porcelain and Potteries

Limited (in liquidation). The particulars mentioned are as follows:

1. Sy.Nos.53, 54, 55 and 56 situated at Malreddypalli, Tandur taluk.

2. 30.00 Acres.

3. All dry lands.

4. Rs.43.05.

5. The following are the boundary of the area in question: i) North: S.No.58, (ii) South: public way leading from Tandurto Anthwaram and boundary of (iii) East: S.Nos.57 and 52, (iv)

West: S.No.105.

6. Sketch of the village map is enclosed.

7. Copy of the pahani 1965-66 is enclosed.

8. As per the records of the office, the land in question is held patta in the name of Mir Mahammad Ali Khan and left uncultivated up to 1965-66.

9. There is no tenant over the area in question.

10. No remarks.

15. Further, the following facts are evidenced from Ex.A16 order,

which are extracted hereunder:

"A joint survey was made by the Joint Director of Industries and Sri Neeladri Raju, an advocate of this Court as agent of the Official Liquidator and a report was submitted on 12.10.1970. It is represented that a plan was prepared by the Executive Engineer, Public Works Department delineating the land belonging to the company showing the extent of the said land as Ac.32.07 guntas, but without mentioning any Sy.Nos. or the name or names of the villages in which the lands are situate.

Since there was a difference between the descriptions of the land, no sale deed could be executed by the Official Liquidator as directed by the Court. Thereupon the Official Liquidator filed CA No.93/78 for suitable directions for execution of the sale deed in favour of the purchaser, Vidya Vikas Samithi, Tandur. The Samithi through its Vice-President, filed counter affidavit to the application stating that the Samithi had paid the full consideration of Rs.80,000/- to the Official Liquidator

and that possession of the land was delivered to the Samithi and that the necessary papers could not be filed before the Court for obtaining the sale deed from the Official Liquidator. Samithi also filed a draft sale deed along with a plan showing the lands in question for approval of this Court and expressing its willingness to purchase the necessary stamps and get the sale deed registered. As there was doubt or dispute with regard to the description or identity of the land, the Samithi filed an application in CA No.34 of 1979 for appointment of a Commissioner to make spot inspection relating to the properties sold by the Official Liquidator at Malreddypalli and Tandur villages and to take measurements and prepare plans after noting the physical features and identification of the property offered for sale by the Official Liquidator in public auction. One K. Venkateswamy, Retired Deputy Inspector of Survey and Land Records was appointed as Commissioner by order dated 06.07.1979 by the Hon'ble High Court. The said Commissioner submitted his report dated 9/16-11.1979 stating that he verified the pahani and map of Tandur village in the light of the publication as to sale made in the 'Deccan Chronicle" and "Siasat" dated 04.04.1973 and 07.04.1973 and he stated that as per the entries in the pahani S.Nos.53, 54/C, 55 and 57/B are patta lands in the name of Mir Mohammad Ali Khan Nawab, but there is no such person claiming the said lands. The Village Officer stated that the above lands were in the possession of M/s. Deccan Porcelain and Potteries Limited. The commissioner inspected the

property and demarcated Sy.Nos.53, 54, 55 and 56 of Malreddypalli and S.Nos.125 and 126 of Tandur with reference to field measurement book (Tippons) obtained from the Assistant Director, Survey and Land Records, Rangareddy district. After completion of the demarcation, the Commissioner measured the area covered by the above Sy.Nos. and prepared a combined plan of both the villages. On a perusal of the combined plan, the open land of M/s. Decan Procelain and Potteries Limited was found in Sy.No.52 (Portion), 53 (portion), 54/C, 55 (portion) and 56/B of Malreddypalli village and the godown fell in Sy.No.126 and the well in Sy.No.125 of Tandur village. The extent of the land in the possession of the company as per the pahani except Sy.No.52 and the survey are as follows:

Name of       Sy.No.       Area        Name of the Name of       the
Village                    Ac.         pattadar    possessor
                           Gts.
1.Tandur      125 part     2-21        Sarkari      Chini    Factory
  village                                           (DPPC Ltd) now
                                                    under possession
                                                    of Vidya Vikas
                                                    Samithi.
              126 part     3.35        Poramboke    -do-

                           6-16

              52 part      4-34        Meer      -do-
                                       Mohd. Ali
2.Malredpalli 53 part      2-04        Khan      -do-
                                       Nawab
              54/C         3-12        -do-      -do-
                                       -do-
              55 part      13-11       -do-      -do-

              56/B         3-38        -do-         -do-
                           27-19

Accordingly, he stated that the extent of the above S.Nos. in the two villages is 33 acres 35 gts., which was in the occupation of M/s. Deccan Porcelain and Potteries Limited and that the same is now in the possession of Vidya Vikas Samithi. He further mentioned that he prepared another plan which is annexure 'C' showing the land bearing S.Nos.52, 53, 54, 55 and 56 of Malreddypalli village and Sy.Nos.125 and 126 of Tandur village by superimposing the plan prepared by the Public Works Department of the year 1972 and that showed that the land belonging to M/s. Deccan Porcelain and Potteries Ltd., as found by public works department in 1972 as per their plan is the same as found by him as mentioned above. The surveyor concluded that the total extent of land in the possession of Vidya Vikas Samithi is Ac.33.35 guntas as mentioned by him and that the land offered and sold by the Official Liquidator and purchased by Vidya Vikas Samithi were the above S.Nos. in two villages and that the description of the land in the publication for sale was wrong. After receipt of the report of the Commissioner, the Samithi has filed an application in CA No.30 of 1980 for rectifying the description of the property as given in the proclamation of sale for issuance of a sale certificate. Since in the sale proclamation, there was only a reference to Ac.30.07 guntas of land belonging to the Deccan Porcelain and Potteries Limited in Sy.Nos.53, 54, 55 and 56 as the sale proclamation was issued on the basis of the information received from the Tahsildar, Tandur and that unfortunately, instead of Malreddipalli village, the

Sy.Nos. were stated to be in Tandur. It is further stated in paragraph No. 8 that the company's factory, premises and the godowns were partly situated in Sy.Nos.125 and 126 of Tandur village and the Official Liquidator had put to sale of the land as well as the buildings and factory etc., belonging to the company and that while the buildings were sold to one party, the land was sold to Vidya Vikas Samithi and that it could therefore be presumed that the company must have constructed its factory and buildings on the land belonging to the company and that the entire land of Ac.33.35 guntas was reported by the Commissioner to be in the possession of the company for the last 35 years and that proper entries of the land were not made in the Tahsildar's letter and that so far, no complaint was received by the Official Liquidator about the sale of the said lands. He further pointed out that it was significant to note that in the report submitted by the Commissioner against item 1, the land in S.No.125 part is stated to be Sarkari, while the land in Sy.No.126 part is stated to be poramboke. The Official Liquidator, therefore, seeks such appropriate orders and such appropriate directions by including clauses (4) and (5) in the terms and conditions of the sale. There appears to be no doubt that the properties of the company were situated partly in Tandur and partly in Malreddypalli villages and from the report of the Commissioner, it is clear that the buildings of the factory were actually situated in Tandur village bearing S.Nos.125 and 126, whereas the other portions of the land belonging to the company were in S.Nos.52, 53, 54/C, 55

and 56/B of Malreddypalli village. Apparently, the then Official Liquidator was misled by the description of the land given by the Tahsildar in his letter dated 04.03.1967 mentioning that the lands of the company were situated only in S.Nos.53, 54, 55 and 56 of Tandur. The fact that the company had also its factory and buildings in S.Nos.125 and 126 of Tandur was omitted to be mentioned by the Tahsildar. Therefore, an obvious mistake or error crept in while proclaiming the properties for sale in the sale notice dated 31.03.1973. In the circumstances, there being an error in the description of the properties actually sold in the sale notice, the same has to be rectified as prayed for by the applicant in CA No.30 of 1980. Accordingly, the sale notice giving the description of the properties to be sold as published in Deccan Chronicle dated 07.04.1973 and Siasat dated 04.04.1973 will stand rectified by describing the same as mentioned in the report of the Commissioner both with regard to their S.Nos., their extents and their location. Accordingly, CA No.30 of 1980 was allowed as prayed for. In the sale deed to be executed by the Official Liquidator in favour of the Samithi in respect of the land as per the orders in the applications, there will be a clause that the sale will be without any warranty or guarantee as to title or possession of the land and the sale will be effected without any liability on the part of the liquidator for the claims that may be made by any third party".

16. Pursuant to the orders of the High Court under Ex.A16, a

clause was incorporated in the sale deed i.e., clause No.6 that "That

in pursuance of this deed of sale the vendor hereby transfers the

right, title, ownership and possession of the land more specifically

described in the schedule and hereinafter and hitherto being held by

M/s. Deccan Porcelain and Potteries Ltd., (in liquidation). The

vendor however, states that the sale will be without any warranty or

guarantee as to title and possession of the land and this sale shall be

without any liability on the part of the Official Liquidator, for the

claims that may be made by third parties.

17. In the light of the above clause and orders of the High Court,

it has to be seen whether the plaintiff established its possession over

the suit land as claimed by it, if so whether they are entitled for

permanent injunction.

18. On behalf of the plaintiff, PW.1 the Managing Trustee was

examined and marked Exs.A1 to A37. The crucial documents are

Exs.A1, A8, A9, A16, and A20 to A37. Ex.A1 is the original sale deed

dated 24.12.1983. Ex.A8 is the original sale assets publication dated

31.03.1973. Ex.A9 is the original photos with negatives. Ex.A16 is

the certified copy of order of High Court dated 22.11.1998. Exs.A20

to A37 are the certified copies of pahanies for the years 1992 to 2012.

Ex.A1 is the sale deed under which suit schedule lands were

conveyed by the Official Liquidator in favour of the appellant Trust

pursuant to the orders passed under Ex.A16. Exs.A20 to A37 for the

period 1992-2012 goes to show that the name of the Trust was

recorded in the revenue records as pattadar and possessor. He

claimed that the plaintiff is in possession and enjoyment and

running the college. PW.2 is one of the Trustees of the plaintiff Trust

and supports the evidence of PW.1 and reiterated the averments

made in the plaint claiming possession over the suit lands. PWs.3 to

5 are independent witnesses who spoke about possession and

enjoyment of the plaintiff Trust.

19. On behalf of the defendants, defendant No.1 was examined as

DW.1 and Exs.B1 to B48 were marked. DW.1 reiterated in his chief

examination the contents of the written statement, however in cross-

examination he states that there is no Porcelain Factory which is also

called as Cheeni company at Tandur. He denies the existence of the

factory to his knowledge and further denies that the said factory

went into liquidation. He states that he is not aware that the Official

Liquidator has handed over the said property to the plaintiff on

13.11.1973, which is a crucial factor as he did not deny the handing

over the possession by the Official Liquidator to the plaintiff Trust.

He admits that as per Ex.B1 that Cheeni company is in possession of

the suit property. Ex.B1 is certified copy of khasra pahani for the

year 1954-55. He states that they came to know about the

proceedings in OP 4 of 1959 in the year 1989. He further states that

his father was also not aware of the OP proceedings and denies the

filing of suit by his father in O.S No.23 of 1984 on 25.11.1982 on the

file of Sub-Judge, Vikarabad against the Peoples Degree College run

by the plaintiff Society. He further denies that his father withdrawn

the said suit on 15.07.1987. In cross-examination, he admits that

they are not cultivating the suit lands nor cultivated the same at any

time and further states that they are lying barren. He denies the

fencing of the lands by the plaintiff and claims that they have fenced

and on further question he admits that they have not pleaded in the

written statement about the fencing. He further admits that as per

Ex.B1 to B11, pahanies, the plaintiff's name was shown as the owner

of the suit schedule property. He denies the suggestion that they

have interfered into the suit land on 23.06.2012.

20. The crucial aspects and admissions in cross-examination of

DW.1 are that he did not deny the handing over of possession to the

plaintiff by the Official Liquidator except expressing his ignorance.

Admission of possession of Cheeni company in suit schedule

property as per Exs.B1 to B11 filed by them show that the plaintiff is

in possession of the suit schedule properties and further they are not

cultivating the said land nor cultivated the same at any time and

they are lying barren. It is evident from Ex.B1 certified copy of kasra

pahani for the year 1954-55, Ex.B2 certified copy of sessala pahani

for the years 1955-58 and Exs.B3 to B6 pahanis for the years 1964 to

1968 which clearly go to show that the name of Cheeni company

was incorporated in possessor column as possessor. Therefore, it

clearly goes to establish that neither Mir Mohd. Ali Khan nor the

defendants were ever in possession of the said lands right from

1954-55 onwards as claimed by them. Even otherwise, according to

DWs, their father came to know about the liquidation proceedings in

the year 1989, but they never challenged liquidation proceedings or

the sale deed executed in favour of the appellant trust. The other

document heavily relied on by the defendants is that Ex.B33 certified

copy of order dated 16.09.2003 passed by the Joint Collector,

wherein he set aside mutation proceedings of the plaintiff trust

holding that as per clause 6 of sale deed under Ex.A16 does not

confer any warranty or guarantee with regard to title and possession

and on that basis the Joint Collector allowed the revision and

directed to mutate the names of the respondents. After lapse of 9

years of passing of the said order under Ex.B34 by an order dated

11.01.2012 the Tahsildar, Tandur granted succession in favour of the

defendants and issued pattadar passbooks and title deeds on the

very same day. The said proceedings are stated to be issued without

any notice and opportunity to the appellant trust and the same was

challenged before this Court in W.P.No.17376 of 2012, which is

pending adjudication. For the first time pattadar passbooks were

issued on 11.01.2012 in favour of the defendants and accordingly

their names were recorded, which is just few months before filing of

the suit. The same were marked as Exs.B36 to B48 and same are the

subject matter of the said Writ Petition, as such no credence can be

given to it as they are disputed entries.

21. The trial Court merely looked the name of Mir Md. Ali Khan

as pattadar in pattadar column, but did not look into the possession

column wherein Cheeni factory was incorporated as possessor. The

mutation proceedings were issued only in the year 2012 for the first

time under Exs.B33 and earlier no pattadar passbooks either in the

name of Mir Mohd. Ali Khan or in the name of the defendants were

issued at any point of time. In fact, in the proceedings before the

RDO which are under Ex.B30 to which the defendants' father was a

party wherein it was specifically referred that he has filed a suit

earlier for perpetual injunction and the same was withdrawn and

thereafter no suit is filed. Thus, it is clear that the defendants are not

in possession of the suit land. Therefore, the findings of the trial

Court is erroneous. It is well settled law that in a suit for perpetual

injunction title to be gone into incidentally, however the trial Court

grossly erred in holding that the plaintiff failed to establish its title

and possession over the suit schedule property. The orders under

Ex.A16 is binding on trial Court as well as quasi judicial authorities.

A categorical finding was recorded by the High Court under Ex.A16

holding that for the last 35 years M/s Deccan Porcelain and Potteries

Limited is in possession and subsequently the appellant trust is in

possession of the suit schedule property on the basis of reports

submitted by the Commissioner appointed by the High Court.

Therefore, the finding of the trial Court that the plaintiff has failed to

place any material to show that the actual possession was delivered

to them by the Official Liquidator is quite contrary to the findings of

the High Court as well as the documents filed by the appellant

Trust. The trial Court also erred in declaring that the defendants are

owners and pattadars purely on the basis of pattadar pass books and

title deeds which are of the year 2012. If the trial Court considered

names in possessory column of Exs.B1 to B7 and Exs.A19 to A37 in a

proper perspective, ought to have come to a definite finding that the

plaintiff is in possession and enjoyment of the suit schedule

property. The trial Court also failed to consider Ex.B34 which is

issued in the year 2012 and pattadar passbooks were also issued on

the very same day and further Joint Collector has no authority to

misinterpret the orders of the High Court with regard to clause 6

that the warranty or guarantee of Sale Deed pursuant to the orders

passed in Ex.A16. The Court below failed to understand the purport

of the said clause.

22. It is well settled law that the revenue entries do not confer

any title. The incorporation of clause with regard to warranty or

guarantee is made since the Official Liquidator is executing the sale

deed on behalf of company and further the sale deeds executed by

the Official Liquidator in the official capacity and individually he is

executing a private property stands on different footing. The said

clause was incorporated with an intention that the purchaser cannot

claim any diminution against the official Liquidator in the event of

any third party claims and that does not mean that no title and

possession is conveyed in favour of the purchaser by the Official

Liquidator.

23. In fact, the trial Court also not considered the photographs

which are marked as Ex.9 which clearly show that the land is fenced

by the plaintiff and the buildings which show that the Peoples

Degree College is in possession and enjoyment of the same. In fact,

the same is not even looked into by trial Court. Thus, it is crystal

clear from Exs.A1, A9, A16 and A20 to A37 and Exs.B1 to B7, which

clearly go to show that the plaintiff is in possession and enjoyment

of the suit schedule property as on the date of filing of the suit.

Since the sale deed executed by the Official Liquidator pursuant to

the orders of the High Court under Ex.A16, it is for the defendants to

question the said proceedings before a competent Court, but clause 6

of the sale deed with regard to without any warranty or guarantee

does not take away right of the appellant Trust. The fact that the

name of Mir Md. Ali Khan was recorded in pattadar column, but not

in possessor columns and in fact in possessor column it was

recorded the name of Cheeni factory all along. Therefore, the

findings of the trial Court declaring the defendants as owners and

possessors merely on the basis of revenue entries in pattadar column

does not deserve any merit and the said findings are liable to be set

aside as the same is in violation of the well settled principles of law

as set out by the Hon'ble Supreme Court. It clearly establishes from

Exs.A1, A9, A16 and A20 to A37 and Exs.B1 to B7 coupled with oral

evidence of P.Ws.1 to 5 that the appellant trust is in possession of the

suit schedule lands. Further DW.1 in his cross examination admitted

that they never cultivated the same. On re-appreciation of oral and

documentary evidence, this Court is of the opinion that trial Court

went wrong in considering the oral and documentary evidence in

proper perspective and misinterpreted the same without following

the well established principles of law. Therefore, the judgment of

trial Court is liable to be set aside and the suit filed by the appellant

trust deserves to be decreed as prayed for.

24. The impleading petitioners have filed impleadment petitions

in I.A.No.1 of 2015 and I.A.No.6 of 2020 as they are the trustees of

the Vidya Vikas Samithi as per Ex.A6 original deed of trust dated

16.05.1994. Exs.A5 andA6 trust deeds were constituted Vidya Vikas

Samithi, but Ex.A7 i.e., deed of reconstitution of trust dated

13.01.2012 was constituted by the Managing Trustee and the same is

under dispute and subject matter of O.P No.2 of 2013 which is

pending adjudication for trial before the Sub-Court at Vikarabad.

That as per the trust deed dated 16.05.1994 which was reconstituted

by Vidya Vikas Samithi Society vide deed of trust bearing

No.4880194 is consisting of (1) N. Manik Rao, Managing Trustee, (2)

NrayanaRao Mudalli, (3) P. Uttamchand, (4) Sashiprabha Manikrao

and (5) Parvatappa Korvar as Ex-Officio Trustees. The president of

Samithies is the ex-officio trustee. Therefore, the impleading

petitioners namely M. Ramesh, President of Vidya Vikas Samithi

and P. Uttamchand, Member Trustee and also Secretary of Vidya

Vikas Samithi have filed separate applications to implead

themselves and the suit was filed by the appellant trust is the

creation of the Samithi under the Societies Registration Act and they

are supporting the claim of the appellant trust by contending that

they are running colleges in the suit lands. Therefore, they are

necessary and proper parties. They are also relying on the very

same documents. Therefore, it is just and necessary to implead them

as parties to the case and by allowing the impleadment petitions, no

prejudice would be caused either to the plaintiff or to the

respondents/defendants. The said applications are accordingly

ordered.

25. The appellant and impleading petitioners relied upon the

following judgments in support of their contentions:

In Smt. Bhimabai Mahadeo Kambekar (D) Th.LR v. Arthur

Import and Export Company3, the Apex Court held as under:-.

"This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. "

In United Bank of India v. the Official Liquidator4, the Apex Court held as under:-

"14. When the Official Liquidator sells the property and assets of a company in liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in

2019 AIR (SC) 719

(1994) 1 SCC 575

liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs 1 crore 98 lakhs."

In Nagar Palika, Jind v. Jagat Singh, Advocate on Record5 the Apex Court held as under:-.

" In any case, an order of mutation in the name of the respondent in the revenue records cannot be a source of title. In the case of Nirman Singh v. Lal Rudra Partab Narain Singh [AIR 1926 PC 100 : 53 IA 220] , in respect of mutation of names in revenue records, it was said:

"They are nothing of the kind as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.

It is little less than a travesty of judicial proceeding to regard the two orders of the Extra Commissioner of Bahraich

(1995) 3 SCC 426

and Mr M.L. Ferrar, Deputy Commissioner, as judicial determinations expelling proprio vigore any individual from any proprietary right or interest he claims in immovable property."

In Suraj Bhan v. Financial Commissioner6, the Apex Court

held as under:-

"It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC 1653] ). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."

In Haryana Financial Corporation v. Rajesh Gupta7, the

Apex Court held as under:-

"The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself".

(2007) 6 SCC 186

(2010) 1 SCC 655

In Union of India v. Vasavi Coop Housing Society Limited8,

the Apex Court held as under:-

"21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah [(1989) 3 SCC 612] this Court held that: (SCC p. 615, para 5)

"5. ... It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."

In Guru Amarjit Singh v. Rattan Chand [(1993) 4 SCC 349] this Court has held that: (SCC p. 352, para 2)

"2. ... that entries in the Jamabandi are not proof of title."

In State of H.P. v. Keshav Ram [(1996) 11 SCC 257] this Court held that: (SCC p. 259, para 5)

"5. ... an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs."

22. The plaintiff has also maintained the stand that their predecessor-in-interest was the pattedar of the suit land. In a given case, the conferment of patta as such does not confer title. Reference may be made to the judgments of this Court in Syndicate Bank v. APIIC Ltd. [(2007) 8 SCC 361] and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu [1991 Supp (2) SCC 228] ."

In Bhimavarapu Laxma Reddy v. Pallothu Aswini Kumar9,

this Court held as under:-

(2014) 2 SCC 269

"The law is also well settled that entries in revenue records either pursuant to mutation or without mutation also do not confer title. The view of this Court finds support from a decision in Suraj Bhan and others v. Financial Commissioner and others10 wherein it was held as follows:

"It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only fiscal purpose i.e., payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil Court vide Jattu Ram v. Hakam Singh and others [MANU/SC/0399/1994 : AIR 1994 SC 1653].

The Supreme Court in several judgments has held that the revenue records do not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another MANU/SC/0147/1989 : (1989) 3 SCC 612 the Supreme Court held that It is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law. In Guru Amarjit Singh v. Rattan Chand and others [MANU/SC/0065/1994 : (1993) 4 SCC 349] the Supreme Court has held that the entries in jamabandi are not proof of title. In State of Himachal Pradesh v. Keshav Ram and Ors. [MANU/SC/0543/1997 : (1996) 11 SCC 257] the Supreme Court held that the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff."

2015 (5) ALD 500

(2007) 6 SCC 187

In Penumarthy Veera Panasa Ramanna v. Penumarthy

Sambamoorthy11 this Court held as under:-

"In our view, the entries in the revenue records, though they may be relevant evidence under Section 35 of the Evidence act, are not evidence of title."

In Mandava Krishna Chaitanya v. UCO Bank, Hyderabad12

this Court held as under:-.

"In United Bank of India v. Official Liquidator (1994) 1 SCC 575, the Supreme Court held that an official liquidator does not provide any guarantee and/or warranty in respect of the immovable property sold by him and the purchaser is not entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to encumbrances, liens and claims. It was further observed that it is for the intending purchaser to satisfy himself in all respects as to title, encumbrances, and so forth of the immovable property that he proposes to purchase and he cannot, after having purchased the property on such terms, then the claim diminution of the price on the ground of defect in title or description of the property."

In Rame Gowdab (Dead) by Lrs v. M Varadappa Naidu

(Dead) by Lrs. and another13 the Apex Court held as under:-.

AIR 1961 AP 361

2018 (3) ALD 266 (DB)

(2004) 1 SCC 769

"Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a Judge in his own cause."

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. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions."

26. The learned Counsel for the respondents/defendants relied

upon the following Judgments delivered by the Hon'ble High Court

and Hon'ble Supreme Court:-

In Emmam Jagan Mohan Reddy v. Kessari Padma14, this Court

held as under :-

" Since the suit is one for perpetual injunction, prima facie title and possession of the plaintiff is to be looked into. Also since the subject matter is a vacant site, possession follows title".

Mere fact that the property was purchased pursuant to an auction held by the Official Liquidator in the winding up proceedings does not confer any title on the Plaintiff".

In Ahmedabad Municipal Corporation v. Haji Abdulfagur15

the Supreme Court held as under:-

2014 (3) ALT 217

(1971) 1 SCC 757

" To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor (let the purchaser beware) applies to the purchaser."

In Raghunath Pradhani v. Damodra Mahapatra and others16

the Supreme Court held as under:-

"It is elementary that what can be brought to sale in a court sale is the right, title and interest of the Judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest...."

In United Bank of India v Official Liquidator17, the Supreme

Court held as under:-

"When the Official Liquidator sells the property and assets of a company in liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property".

(1979) 1 SCC 508

(1994) 1 SCC 575

In Govindammal v. Vaidyanathan18, the Supreme Court held

as under:-,

"10. Be that as it may, since Chokalingam was the judgment-debtor, at most only his share in the property could be sold and it is not open for the purchaser to contend that he purchased the entire property though only 50% of the property belonged to the judgment debtor. The purchaser cannot get a higher right, title or interest in the property than what vested with the seller. Ultimately, the purchaser takes the risk, if he purchases the property which does not belong to the judgment-debtor. The purchaser at an auction sale takes the property subject to all the defects of title, and the doctrine of caveat emptor (let the purchaser beware) applies to such a purchaser. Therefore, even assuming that the court auction-sale was held in respect of the entire property, it cannot be said that such sale was valid to the entire extent. At most, it can be said that it was valid to the extent of the property which was owned by the judgment-debtor i.e., Mr. Chokalingam i.e., 1.36 out of 2.72 acres. The remaining 50% i.e., Schedule 'A' Property was owned by Narayanaswamy Mudaliar and his legal representatives.

The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court-auction. Secondly, by virtue of auction-sale, the purchaser would get only the share vested with Chokalingam inasmuch as Chokalingam alone was the judgment-debtor. The property which is not

(2019) 17 SCC 433

owned by the judgment-debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued in respect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property."

In Jharkhand State Housing Board v. Didar Singh19, the

Supreme Court held as under:-

"It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

27. The counsel for the respondents also relied upon the

Judgments in (1) Premji Ratansey Shah v. Union of India20, (2)

Saygo Bai v. Chueeru Bajrangi21, (3) Balakrishna v. balakrishna22,

(4) Surender Joshi v. Chennupati Krishna23, (5) Mallesh Yadav v.

K Sri Ram Reddy24, (6) Ghanshyam Das v. Om Prakash25 and

Sidharthan v. Thankamani26, which are not relevant to the present

(2019) 17 SCC 692

(1994) 5 SCC 547)

(2010) 13 SCC 762)

2019 SCC Online SC 135

2019 (4) ALD 75

2019(6) ALD 327

1993(3) SCC 368, (7)

2013 (3) KLJ 68

case, as the facts and circumstances in the said cases are entirely

different and distinct from the facts and circumstances of the case on

hand.

28. In view of the aforesaid legal position, and on analysis of oral

and documentary evidence, it is clear from Exs.A.1 to A.9, A.16, A.20

to A.37, and Exs.B.1 to B.37 that the plaintiff and its predecessor-in-

title are in possession and enjoyment over the suit schedule

property. Though the defendants claimed their possession and title,

but they failed to place any cogent and convincing evidence except

harping on Exs.B.36 to B.48 which are pattadar passbooks and title

deeds issued in pursuant to the proceedings dated 11.01.2012 under

Ex.B.34. The said Exhibits show that the same were issued

simultaneously on the date of orders passed by the Tahsildar under

Ex.B.34, and B.48 is the patta for the year 2012-13 and the said

pahani also issued in pursuant to the orders under Ex.B.34 and all

are of the same year of 2012. Therefore, in the absence of placing any

earlier pahanis to show their possession, it cannot be accepted that

the defendants were in possession of the suit schedule property and

admittedly the plaintiff disputed the same which is subject matter of

W.P.No.17376 of 2012. The learned Counsel for respondents 1 to 6

heavily relied on Ex.B.33, the proceedings of the Joint Collector,

dated 16.09.2003, wherein he set aside the proceedings dated

17.03.1991 passed by the Revenue Divisional Officer, Vikarabad,

under Ex.B.30. The Joint Collector relying on clause 6 of the sale

deed held that on the principle that 'no man can transfer better title

than what he has' and further held that Mir Mohammed Ali Khan is

the pattadar, who is not a party to the registered sale deed and

therefore, it is not binding on him. The Joint Collector failed to read

clause 6 of the sale deed in its entirety and in the first part of the

limb, all the right, title, interest and possession was conveyed to the

purchaser and in the second limb, it was stated that the sale will be

without any warranty or guarantee and shall be without any liability

on the part of the Official Liquidator. The said clause is incorporated

only in the event of any claim made by third parties at a future date,

the Official Liquidator is not liable and purchaser shall not claim any

diminution in the property as held by the Hon'ble Supreme Court in

(1994) 1 SCC 575, United Bank of India vs. Official Liquidator. The

defendants further claimed that as per Exs.B.1 to B.7, Mir

Mohammed Ali Khan name was shown as pattadar and contended

that he is a rightful owner and possessor of the suit schedule land. It

is evident from said Exs.B.1 to B.7, the name of "Cheeni Factory" i.e.,

M/s. Deccan Porcelain and Potteries Limited, was shown in

possessory column. Therefore, the claim of the possession by the

defendants falsifies their claim of possession. Further, D.W.1

admitted in cross-examination that they never cultivated the suit

lands. It is well settled law by the Hon'ble Supreme Court in catena

of decisions that the revenue entries do not confer any title. As

stated above, the plaintiff could be able to establish its possession

over the suit schedule property by way of oral and documentary

evidence. The Trial Court without considering the oral and

documentary evidence in proper perspective, more particularly with

regard to Ex.A.16, wherein it was specifically recorded that the

plaintiff was in possession of the suit schedule land and earlier to

that, "Cheeni Factory" i.e., M/s. Deccan Porcelain and Potteries

Limited, was in possession of the same for the last 35 years. The said

findings and observations under Ex.A.16 are binding on the Court

below. The Court below also failed to consider the purport of the

clause 6 of the sale deed in proper perspective and relying on the

order of the Joint Collector, Ex.B.33, holding that the name of Mir

Mohammed Ali Khan was recorded as pattadar and, therefore,

dismissed the suit without looking into the possessory column in

Ex.B.1 to B.7 wherein the name of the Cheeni Factory was recorded.

The Trial Court also without framing the issue with regard to title

decided the title of the defendants, which is unsustainable in law.

29. Therefore, for the reasons stated above, the trial Court

committed grave error of law without properly evaluating the

evidence and holding that the plaintiff failed to prove its possession

over the suit schedule property. Hence, the Judgment under Appeal

suffers from material irregularity and patent error of law and hence

liable to be set aside.

30. I.A.No.1 of 2020 is filed by one Mr.Nayeem Khan, S/o late

Ameer Khan, claiming that he is the GPA holder of one of the sons

of Mir Mehdi Ali Khan in his individual capacity. As the legal heirs

of Mir Mehdi Ali Khan are not parties to the proceedings, the GPA

claiming through one of them cannot be impleaded in this Appeal.

Further, the GPA holder has filed the petition in his individual

capacity, not through the person who executed the GPA in favour of

the impleading petitioner.

31. Further, the inter se claims, if any, between the legal heirs of

Mir Mehdi Ali Khan @ Mehdi Jung Bahadur to be settled in a

separate forum not in a suit filed by the appellant Trust. Therefore,

the impleading petitioner is neither necessary nor a proper party,

more particularly, he filed the same in his individual capacity, but

not on behalf of the legal heirs of Mir Masood Ali Khan. Therefore,

the Interim Application No.1 of 2020 is hereby dismissed.

32. As stated above, the interim applications, i.e., I.A.No.1 of 2015,

and I.A.No.6 of 2020, seeking impleadment are hereby allowed.

33. In the result, the Appeal Suit is allowed, setting aside the

impugned Judgment and Decree passed in O.S.No.9 of 2012, dated

25.11.2014, by the Additional District Judge, Vikarabad, Ranga

Reddy District. Consequently, perpetual injunction is granted in

favour of the appellant/plaintiff restraining the respondents/

defendants from interfering with its peaceful possession and

enjoyment over the suit schedule land. There shall be no order as to

costs.

Miscellaneous petitions, if any, pending, shall stand closed.

_____________________ JUSTICE G.SRI DEVI

23.02.2021 Gsn/gkv