State Of Andhra Pradesh vs P. Seshu Babu
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     THE HON'BLE SRI JUSTICE T.AMARNATH GOUD

                   SECOND APPEAL No.317 of 2012

JUDGMENT:

1 This Second Appeal, under Section 100 CPC, is directed

against the decree and judgment dated 22.3.2011 passed in

A.S.No.627 of 2006 on the file of the Court of the XIII

Additional Chief Judge, (FTC), City Civil Court, Hyderabad,

wherein and whereby the judgment and decree dated

14.7.2006 passed in O.S.No.1693 of 1997 on the file of the

Court of the VIII Additional Senior Civil Judge (FTC) City Civil

Court, Hyderabad was confirmed.

2 For the sake of convenience, parties to this second

appeal will hereinafter be referred as they were arrayed before

the trial Court.

3 The facts germane for filing of the present second

appeal are, succinctly, as follows:

4 The plaintiffs filed O.S.No.1693 of 1997 on the file of the

Court of the VIII Additional Senior Civil Judge (FTC) City Civil

Court, Hyderabad, against the defendant - State of Andhra

Pradesh (Rep. by Collector, Hyderabad District, Hyderabad)

for the relief of perpetual injunction restraining them from

encroaching and interfering with the possession, enjoyment

and development of land belonging to the plaintiffs to the

extent of Ac.7-14 guntas in S.No.129/76 Old (329 New)

situated at Road No.12, Banjara Hills, Shaikpet village,

Hyderabad.

5 The case of the plaintiffs was that one Akbar Azam was

in continuous possession and enjoyment of the suit schedule

property. As per the directions of the Additional Chief Judge,

in CMA No.214 of 1989, the Revenue Divisional Officer

delivered possession of the entire suit schedule property to

Akbar Azam. The said Akbar Azam entered into a development

agreement with the original plaintiff on 19.12.1981 for

development and disposal of the suit schedule property, by

way of an irrevocable power of attorney. The said Akbar Azam

died on 08.9.1982. On 13th and 14th February 1997 the MRO,

Sheikpet Mandal raided on the suit schedule property and

demolished the constructions made by the plaintiffs therein

without serving any notice to them. Hence the suit.

6 The defendant contested the suit. Their case was that

originally the Shaikpet, Hyderabad was the sarfekhas village.

After the merger of Sarfekhas, the administration of the village

was transferred to the Government. As per the

supplementary sethwar issued in 1331 fasli, the Sy.No.129

was divided into ten sub-divisions such as 129/1 to 129/10

in pursuance of which Sy.No.129/1 was renumbered as

S.No.403. It is further submitted that town survey was

conducted from 1964 to 1971 as per the provisions of the A.P.

Survey and Boundaries Act, but the plaintiff did not file the

suit within three years as contemplated under the provisions

of the said Act as such the entries in TSLR become final. The

plaintiff criminally trespassed into the Government land in

T.S.No.5P Block H, Ward no.10 which is correlated to

Sy.No.403 of Shaikpet. It is further submitted that the

Revenue Divisional Officer delivered possession of the suit

schedule property as directed by Additional Chief Judge, CCC,

Hyderabad, in Civil Miscellaneous Appeal No.246 of 1989

without verifying the records, as such the same is not binding

on the Government and prayed the court to dismiss the suit.

7 The trial Court settled three issues for trial. On behalf of

the plaintiffs, P.W.1 and on behalf of defendant D.W.1 were

examined. On behalf of plaintiff Exs.A.1 to A.61 were marked

and on behalf of defendant, Ex.B.1 to B.7 were marked.

8 The trial Court at para No.22 of the judgment, held that

the evidence of P.W.1 is undisturbed in so far as their

possession over the suit schedule property is concerned, of

course, the defendants have categorically admitted the

possession of the plaintiffs over the suit schedule property.

D.W.1 further admitted that the lands in Sy.No.129/76 stand

in the name of Akbar Azam and that it was assigned by the

Government.

9 Insofar as the contention of the defendant with regard

to the Town Survey is concerned, the trial Court observed that

as there was no valid notice in respect of the alleged survey to

the plaintiffs, the same is not binding on them and when

there was no valid notice, the plaintiffs are not obliged to file

the civil suit to set aside the survey within three years as

contemplated under the provisions of the A.P. Survey and

Boundaries Act. Moreover, as held in State of Andhra Pradesh

V. Prameelamodi1, mere entry in TSLR itself would not be

enough to deny the title of owners.

10 In that view of the matter, the trial Court, after

appreciating the entire evidence available on record, both oral

and documentary, and in view of the voluminous

documentary evidence showing the possession of the plaintiffs

over the suit schedule property, particularly, Ex.A.9

development agreement, held the first issue viz., "whether the

plaintiff is in possession and enjoyment of the suit schedule

property as on the date of filing of the suit", in favour of the

plaintiffs and consequently decreed the suit. The trial Court

further observed that there is no rebuttal evidence in so far as

the possession of the plaintiffs over the suit schedule property

is concerned. Hence the relief of permanent injunction was

granted.

11 Aggrieved by the same, the defendant - Government

preferred A.S.No.627 of 2006 on the file of the Court of the

XIII Additional Chief Judge, (FTC), City Civil Court,

Hyderabad.

12 The lower appellate Court, after re-appraising the entire

evidence available on record, also held that the plaintiffs are

entitled to the relief of perpetual injunction. At para No.42,

1 2005 (4) ALD 105 D.B

the lower appellate court held that the revenue records filed

by the plaintiff clearly show that the revenue authorities are

admitting the possession of Akbar Azam on one hand and

disputing the extent of the land on the other hand, which

clearly shows that the entries in TSLR are not in consonance

with the revenue records i.e. pahanis and Pouthi Bedhi issued

by the revenue authorities. At para No.44 of its judgment, the

lower appellate court held that Ex.A.61 clearly shows that the

plaintiff was punt in possession of the property and that the

plaintiffs are in possession of the property by way of

document i.e. development agreement and General Power of

Attorney and that the GPA creates charge over the property

and that Ex.A.61 confined to Ac.2.14 guntas of land and

about the remaining extent of land the defendants are not

disputing and that there is no whisper about the remaining

extent of land. The admission made by the defendant i.e. filing

of LGC itself clearly shows the possession coupled with Ex.A.6

Development Agreement and the GPA shows that the plaintiffs

are in possession of the property. Accordingly, the lower

appellate court dismissed the appeal filed by the defendant.

Hence the second appeal by the State.

13 On 10.02.2016 this Court, while admitting the Second

Appeal, framed the following substantial questions of law, for

consideration.

(1) Whether a G.P.A. Holder as agent can seek for a relief of permanent injunction in his individual capacity not as an agent of the principal who is the original owner of the property?

(2) Whether the relief claimed by plaintiffs in the Courts below is in accordance with Section 37 (2) of the Specific Relief Act?

(3) Whether GPA-cum-Development Agreement can confer any right on the agreement holder to claim the relief of permanent injunction independently against third parties without representing the real owners?

14 The learned Government Pleader for Arbitration argued

that both the courts below erred in shifting the initial burden

on to the appellant /defendant though the respondents /

plaintiffs failed to discharge their burden of proof that they

have prima facie title in respect of the suit schedule property.

15 He further submitted that the lower appellate court

failed to consider the effect of non examination of any person

connected to Ex.A.9 and ignored the prudent principle of law

of evidence with regard to proof of Ex.A.9.

16 On the other hand, Sri M.P. Chandramouli for the

plaintiffs submitted that both the courts below have given

concurrent finding of fact and that the questions of law urged

by the learned counsel for the appellant do not fall under the

category of substantial questions of law and accordingly

prayed to dismiss the second appeal.

17 Insofar as the first question of law framed for

consideration in this second appeal is concerned, it is

necessary to do some exercise on the legal principle. In the

instant case, admittedly, the first plaintiff was the agent of the

Akbar Azam, in whose favour an irrevocable power of attorney

was executed.

18 'Agent' has been defined in Section 182 of the Indian

Contract Act, 1872, to mean a person employed to do any act

for another or to represent another in dealings with third

persons. The person for whom such act is done, or who is so

represented, is called the 'principal'. Section 185 of the

Contract Act postulates that no consideration is necessary to

create an agency. The authority of an agent may be express or

implied in terms of Section 186 thereof.

19 Section 202 of the Contract Act provides that where the

agent has himself an interest in the property which forms the

subject matter of the agency, the agency cannot, in the

absence of an express contract, be terminated to the prejudice

of such interest. The right of an agent to sue or be sued in its

own name, is governed by Section 230 of the Contract Act,

which reads as under:

"230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principle.- In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them."

However, the second part of the said provision does not envisage a situation where the right of an agent is protected in terms of Section 202 of the Contract Act.

20 An agent coupled with interest has a right to sue. He

may in certain situations be sued as regard his own liabilities

independent of his principal. The right of an agent having

interest to sue or be sued in its own name came up for

consideration before the Madras High Court in Subrahmania

Pattar v. Narayanan Nayar [ILR 24 Mad 130] wherein it

was held:

"It was argued before us that by the document in question the plaintiff became an agent with interest, and that he, therefore, had a right to sue in his own name and Williams v. Millington; Robinson v. Rutter; Gray v. Pearson; and other cases and text-books were cited in support of this proposition, and Pestanji Mancharji Wadia v. Matchett; was also cited as a further authority for the same proposition. The proposition as stated is in our judgment too wide. In Williams v. Millington; and Robinson v. Rutter; the agents who were held entitled to sue were agents who had made the contract with the defendant as auctioneers, and it was held that, though they had contracted as agents having an interest, they were entitled to sue in their own names. In Gray v. Pearso the plaintiff's suit was dismissed. There, there was no contract entered into between the plaintiff and the defendant. The plaintiff was merely the manager for others and the words used by Willes, J., in his judgment, to which our attention was called, do not assist the plaintiff's contention. He says the proper person to bring the action is the person whose right has been violated. Though there are certain exceptions to the general rule, for instance, in the case of agents, auctioneers or factors, these exceptions are in truth more apparent than real, &c. The real proposition of law, which these and other cases establish, is that where an agent enters into a contract as such, if he has interest in the contract, he may sue in his own name."

21 Having regard to the principle enunciated in the cases

cited supra, this court is of the view that the plaintiff being

GPA holder can seek the relief of permanent injunction, as an

agent, in his individual capacity not as an agent of the

principle who is the original owner of the property. The first

question of law is answered accordingly.

22 Insofar as the second question of law framed for

consideration in this second appeal is concerned, Section 37

(2) of Specific Relief Act reads as under:

"A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff."

23 The prayer of the plaintiffs in the suit was to grant

permanent injunction restraining them from encroaching and

interfering with the possession, enjoyment and development of

land belonging to the plaintiffs to the extent of Ac.7-14 guntas

in S.No.129/76 Old (329 New) situated at Road No.12,

Banjara Hills, Shaikpet village, Hyderabad. Therefore, the

relief claimed by plaintiffs in the Courts below is in

accordance with Section 37 (2) of the Specific Relief Act.

24 Both the Courts below, on the factual position, on

appreciation of both oral and documentary evidence available

on record, have concurrently held that the plaintiffs are

entitled for grant of permanent injunction.

25 This Court, having gone through the impugned

judgments, is of the considered view that the questions of law

as were pleaded by the learned counsel for the appellant /

defendant are not at all substantial questions of law as they

are all discussed and held by both the courts below in right

perspective. In view of the elaborate discussion on the

voluminous documentary evidence by both the courts below,

the defendant / appellant cannot plead that they are

substantial questions of law. Both the courts below have

given their categorical findings in so far as the factual aspects

are concerned. This Court while sitting under Section 100

CPC cannot once again re-appreciate the factual aspects.

Only if there is any point touching the legal aspect, this court

will certainly interfere with the findings of the courts below.

The trial Court as well as the lower appellate court have given

cogent and convincing reasons to grant the relief of

permanent injunction in favour of the respondents /

plaintiffs, which in my considered view, does not call for any

interference. There is no question of law much less question

of law to interfere with the judgment of the court below. Hence

the second appeal is liable to be dismissed.

26 In the result, the second appeal is dismissed,

confirming the judgment and decree dated 22.03.2011 passed

in A.S.No.627 of 2006 on the file of the Court of the XIII

Additional Chief Judge, (FTC), City Civil Court, Hyderabad,

and also the judgment and decree dated 14.7.2006 passed in

O.S.No.1693 of 1997 on the file of the Court of the VIII

Additional Senior Civil Judge (FTC) City Civil Court,

Hyderabad. No order as to costs. Miscellaneous petitions, if

any, pending in this second appeal also stand dismissed.

__________________________ T. AMARNATH GOUD, J.

Date:29.9.2021 Kvsn