Telangana High Court

Kasukurthi Karthik vs Kasukurthi Hanumantha Rao Died on 2 December, 2022

Bench: G.Radha Rani

              THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CIVIL REVISION PETITION No.2029 OF 2022


ORDER:

This Civil Revision Petition is filed by the petitioner-2nd respondent

aggrieved by the order dated 02.09.2022 passed in I.A. No.39 of 2022 in

O.S. No.40 of 2022 on the file of the Sub-Divisional Magistrate and

Special Assistant Agent to Government, Mobile Court at Bhadrachalam.

2. The parties are hereinafter referred as per their array before the trial

court.

3. The petitioners (respondents 2 and 3 herein) filed suit vide O.S.

No.40 of 2022 for Perpetual Injunction restraining the 2nd respondent

(petitioner herein) from interfering with their possession over the suit

schedule property and also filed I.A. No.39 of 2022 seeking temporary

injunction. The trial court passed orders in I.A. No.39 of 2022 granting

temporary injunction restraining the 2nd respondent from interfering with

the possession and enjoyment of the petitioners over the suit schedule

property until further orders. Aggrieved by the said order, the 2nd

respondent filed this revision contending that the petitioners created bogus

Gift Deed alleging that their father executed it in their favour. The trial Dr.GRR,J

court failed to see that the father of the 2nd respondent executed a will deed

in his favour as he looked after his welfare. The father of the 2nd

respondent used to look after the suit schedule property till his death and

pay house tax and electricity bills. Earlier, the petitioners attacked the 2nd

respondent with an intention to kill him and he filed a report before the

Chenchupally Police Station and the police registered a case in Crime

No.58 of 2021 dated 25.06.2021 for the offences punishable under Sections

143, 147, 148, 324, 452 and 506 read with 149 IPC. In view of the interim

orders of the trial court, the petitioners were trying to evict the 2nd

respondent from his possession over the suit schedule property and prayed

to set aside the order dated 02.09.2022 passed in I.A No.39 of 2022 in O.S

No.40 of 2022 by the Sub-Divisional Magistrate and Special Assistant

Agent to Government, Mobile Court at Bhadrachalam.

4. Heard learned counsel for the revision petitioner-2nd respondent and

the learned counsel for the respondents 2 and 3-petitioners.

5. As seen from the record, the petitioners filed a suit for perpetual

injunction and filed I.A No.39 of 2022 seeking temporary injunction. The

contention of the petitioners was that they were the absolute owners and

possessors of the suit schedule property i.e. 1st petitioner was the owner and Dr.GRR,J

possessor of the vacant site towards East side of the house bearing No.3-1-

38 to an extent of 373.33 sq. yds., and the 2nd petitioner was having vacant

site towards east side of the house bearing No.3-1-38 also to an extent of

373.33 sq. yds., situated at Vidyanagar Colony, Chenchupalli Mandal,

Bhadradri Kothagudem District. They acquired the suit schedule property

from their father through Gift Deed dated 14.01.2011. After that, they

came into possession of the suit schedule property and the 1st petitioner dug

a bore well in her property and the 2nd petitioner constructed an iron petal

shed in her property. Both of them constructed compound wall on three

sides except in between them. They were in exclusive, continuous and

uninterrupted possession and enjoyment of the schedule property. After

their marriages, they were staying away from the suit schedule property.

Taking advantage of their non-residence, their father i.e. 1st respondent

along with their step brother i.e. 2nd respondent, developed greedy eye and

with active support of the unsocial elements in the village, without having

rightful ownership over the schedule land, were trying to interfere with

their possession. On 09.07.2021, the respondents (defendants) with the

help of their henchmen tried to occupy the schedule property, but the

petitioners resisted the same. As they apprehended danger to their Dr.GRR,J

possession, they filed the suit and the petition under Rule-42 (c) of A.P.

Agency Rules read with Section 151 of CPC.

6. The 2nd respondent filed counter stating that he was the son of the

1st respondent. The schedule property was the self acquired property of the

1st respondent. The petitioners-plaintiffs and the 2nd respondent-2nd

defendant were the children of the 1st respondent-1st defendant. The

petitioners filed a false suit against their father and brother by creating false

documents. The 1st respondent never executed the gift settlement deed

dated 14.01.2011. The petitioners created the said document. Their father

would never sign in Telugu. It was a forged signature. The unregistered

gift settlement deed was not valid. The 1st respondent executed the

registered will deed in favour of the 2nd respondent including the petition

schedule property. The same was registered in the office of the Sub-

Registrar, Kothagudem vide document No.45 of 2021 dated 30.06.2021.

Subsequently, the 1st respondent died on 26.09.2021. The 2nd respondent

was the absolute owner of the schedule property. The 1st petitioner and the

GPA holder of the 2nd petitioner along with some other family members

forcibly tried to occupy the said land on 25.06.2022. They created a galata

and tried to kill the 2nd respondent. The 2nd respondent lodged a police

complaint which was registered as FIR No.58 of 2021 and the same was Dr.GRR,J

pending before the court of Judicial Magistrate, Kothagudem. The

petitioners themselves were trying to occupy the schedule land without

having any right, title and possession by showing false and fabricated

document and filed the present suit. They were never in possession of the

schedule property. The boundaries mentioned by them were false and

prayed to dismiss the petition.

7. On hearing the counsel for the petitioners and the 2nd respondent, the

trial court considering that the 2nd respondent himself admitted in his police

complaint dated 25.06.2021 that the 1st respondent had executed gift deed,

granted temporary injunction in favour of the petitioners.

8. The petitioners (who are respondents in this revision) filed counter

stating that their father i.e. the 1st respondent married one Smt. Nagewsari

and she died in the year 1980 and out of the said wedlock there was a male

issue, by name, Nagarjuna, and thereafter, the 1st respondent married their

mother, namely, Smt.Rama and out of the said wedlock they were born and

their mother also died in the year 1996. Thereafter, the 1st respondent

married the mother of the 2nd respondent - revision petitioner, namely,

Smt.Lakshmi. Her whereabouts were not known for the past 15 years. The

1st respondent, out of love and affection towards them, executed a gift Dr.GRR,J

settlement deed on 14.01.2011 pertaining to the petition schedule property.

The 1st respondent was suffering from several ailments for the past several

years. He was not in a sound and disposing state of mind prior to his

demise. The 2nd respondent had not allowed them or any other family

members to meet the 1st respondent. The 1st respondent was under the

influence of the 2nd respondent. The 1st respondent asked them to come for

fixing the boundaries of the gifted properties. On 24.06.2021 they visited

the 1st respondent wherein they were attacked by the 2nd respondent. They

approached the Sub Inspector of Police, Chenchupally on 24.06.2021, but

the police refused to register the case as such, they filed a private complaint

on the file of III Additional Judicial Magistrate of First Class, Kothagudem.

The same was referred to police vide Memo dated 17.06.2022. The

1st petitioner sustained grievous injuries and was constrained to take

treatment at L.V. Prasad Eye Institute. The 2nd respondent also filed a

criminal case against them which was registered as FIR No.58 of 2021. In

the said complaint, the 2nd respondent stated that the gift deeds were

executed for an extent of 776.66 sq. yds of land, out of half acre of land and

alleged that all the family members including their elder brother Nagarjuna

and others had share in the said property. The 2nd respondent instead of

asserting his rights, if any, over the gifted property, had been trying to Dr.GRR,J

dispossess them from the schedule property. As they could not contact

their father i.e. 1st respondent, they filed the suit making him as party

defendant along with the 2nd respondent. The 2nd respondent himself filed

the copy of the complaint dated 25.06.2021 admitting execution of gift

deed in their favour. Taking into consideration all the aspects, the trial

court granted interim injunction by order dated 02.09.2022 and the same

was valid, just and unassailable. If at all the revision petitioner had any

objection about the gift deeds, he ought to have approached the court of law

but instead was trying to interfere with their possession and enjoyment and

prayed to dismiss the CRP.

9. The record would disclose that the petition schedule property was a

vacant site adjacent to the house bearing No.3-1-38. The petitioners

(plaintiffs-respondents herein) were claiming that their father

(1st respondent-1st defendant) executed a gift deed to an extent of 373.33 sq.

yds., of land to each of them in the said vacant site and that they had dug a

borewell and constructed iron petal shed in their respective sites gifted to

them. They filed a photostat copy of the gift deed executed by the 1st

respondent in their favour along with the suit. The 2nd respondent (2nd

defendant-revision petitioner) was contending that their father executed a

registered will in his favour on 30.06.2021 vide document No.45 of 2021 Dr.GRR,J

and the same was registered in the office of the Sub-Registrar, Kothagudem

in book No.3. Both the parties were claiming that they were in physical

possession of the property. Since the property is a vacant property, the

principle to be applied is "possession follows title". Both the parties are

relying on their title documents. The petitioners are relying on an

unregistered gift deed executed on a stamp paper of Rs.20/- and the 2nd

respondent is relying on a registered will.

10. As per law, the gift deed shall be a registered document to consider it

as a valid document and possession shall also be handed over to the donees

by the donor. Without handing over the possession, the gift would be

invalid. The petitioners had not filed any document to show that they were

enjoying the possession of the suit schedule property and that the borewell

was dug by them and the iron petal shed was constructed by them or that

they were paying any property tax. They had not stated whether there was

any electricity connection to the borewell and the iron petal shed was

constructed by them and whether they were paying any electricity bills.

The petitioners had not stated any reason for not filing the original

document or a certified copy of it. No documents were marked by the trial

court while passing the interim injunction orders. This Court in CRP

No.4794 of 2015 dated 05.02.2016 reiterated the importance of marking of Dr.GRR,J

documents in interlocutory applications and also issued circular orders to

all the trial courts for marking the documents. The Agency court is also

directed to mark the documents in interlocutory applications and reiterated

that non-marking of documents is an irregularity. But, the Sub-Divisional

Magistrate, Mobile Court, Bhadrachalam is committing the same mistake

repeatedly even after several reiterations by this Court and setting aside the

orders on the said ground.

11. Learned counsel for the 2nd respondent-revision petitioner relied

upon the judgment of this Court in P. Lakshminarayana and another v.

T. Madhu Babu and others1, wherein it was held that:

"Ordinarily, an application for injunction is adjudicated based on the elements of prima facie case, balance of convenience and irreparable injury. It is disappointing to note that the trial Court has not considered any of these elements. The only ground on which the trial Court dismissed the application was that when the suit schedule property is the subject matter of a partition suit, the suit for bare injunction without seeking the relief of declaration of title is not maintainable. In my opinion, this reasoning of the trial Court is wholly without any basis. The appellants have based their right to be in possession of the property on the registered sale deeds executed as far back as the years 2000 and 2004. A person whose physical possession is threatened is certainly entitled to seek protection of his possession by seeking the relief of injunction. Thus, the law does not preclude the appellants herein from filing a suit for bare injunction despite the fact that a preliminary decree has already been passed in favour of respondents 1 to 4. Undisputedly, the said preliminary decree is the subject matter of an appeal wherein the appellants have also filed an application for their impleadment and the said petition is stated to be pending. The respective rights of the parties are, therefore, expected to be adjudicated in the pending appeal. If pending the appeal, the

2014 (5) ALT 56 (S.B.) Dr.GRR,J

appellants purported possession is threatened, they are entitled to file suit for injunction simplicitor and that is what they have precisely done. The trial Court, therefore, ought to have considered whether the appellants are in physical possession of the property and if so the respondents have been threatening to dispossess them. It ought to have disposed of the I.A. by applying the well-known parameters of prima facie case, balance of convenience and irreparable injury, instead of dismissing the application on a misconception that the suit for injunction simplicitor is not maintainable."

12. He also relied upon the judgment of this Court in E. Raja Mani and

others v. E. Dayanand and others2 wherein it was held that:

"8. This Court notices the judgments of the Hon'ble Supreme Court of India reported in Satyawati v. Rajinder Singh (1) (2013) 9 SCC 491 = 2013 (6) AL T 19.1 (DN SC) and also Maria Margarida Sequeria Fernandes v. Erasmo Jackde Sequeria (Dead) (2) 2012 (3) ALT 5 (SC) = AIR 2012 SC 1727. Both the judgments of the Hon'ble Supreme Court of India deal with the question of granting an injunction. The Hon'ble Supreme Court of India held that granting of an injunction is a serious matter and that the Court has a duty to consider the pleadings and documents before granting any order. The three essential elements which have to be satisfied are prima facie case, balance of convenience and the irreparable loss. In addition, the conduct of the party who seeks an injunction is also an important factor. The serious repercussions that arise out of an order of injunction are also highlighted by the Hon'ble Supreme Court of India in Makers Development Services Pvt. Ltd. v. M Visvesvaraya Industrial Research and Development Centre (3) AIR 2012 SC 437 = 2012 (5) ALT 31.3 (DN SC).

9. This Court notices that in the affidavit filed in support of the application, there is no whisper about the prima facie case, balance of convenience and about the irreparable loss. The respondents rightly pointed out that non-mentioning of these essential factors is fatal to the petitioners case. Unless and until, the affidavit filed in support of the injunction application makes out prima facie case and the deponents states on oath that the balance of convenience is in his favour and there is a risk of irreparable loss, the Court cannot consider the same. There should be sufficient averments for a prima facie case and about balance of convenience and also irreparable loss. The sufficiency of the statement in the affidavit is however a matter for the

2019 (1) ALT 344 (S.B.) Dr.GRR,J

Court to decide. If these aspects are pleaded or stated in the affidavit with some amount of certainty, respondents will also reply to the same. Then the Court can examine these essential ingredients for granting an injunction. If the same are not mentioned in an affidavit, the Court cannot wade through the documents/pleading etc., and search prima facie case is made out and if the petitioner has a balance of convenience in his favour or if there is a risk of irreparable loss.

10. Therefore, this Court holds that it is the burden of the deponent of the affidavit to state on oath that these three fundamental pre- requisites exist in the case. Sufficient particulars must also be given about these three essential pre-requisites so as to enable the Court to appreciate the same. The absence of such averments in the affidavit in the opinion of this Court is fatal to the case of the petitioners."

13. In the present case also, the trial court had not considered the said

parameters of prima facie case, balance of convenience and irreparable

injury by referring to any documents except mentioning that there is a

prima facie case and balance of convenience in favour of the petitioners-

plaintiffs.

14. Learned counsel for the 2nd respondent-revision petitioner further

relied upon the judgment of the Hon'ble "Apex Court in Yellapu Uma

Maheswari and another v. Buddha Jagadheeswara Rao and others3 on

the aspect that whether an unregistered document can be considered for any

collateral purpose. It was held that:

"Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 A.P. (242) has held

(2015) 16 SCC 787 Dr.GRR,J

that the whole process of partition contemplates three phases i.e. severance of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severance of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."

15. In the case on hand, the document relied by the petitioners-

respondents herein was a photostat copy of an unregistered gift deed and no

other document was filed by them in proof of their possession. A gift

under Hindu Law is valid only when it is accompanied by delivery of

possession and the property should be registered. Hence, the unregistered

gift deed alone cannot be considered as a basis to believe that they were in

possession of the schedule property.

16. Learned counsel for the 2nd respondent-revision petitioner also relied

upon the judgment of a Division Bench of this Court in Hazrath Habeeb

Mujtaba Al Aidroos v. Habeen Mohammed Al Aidroos and others

[CMA No.522 of 2021 dated 29.12.2021], wherein it was held that:

"The issue whether there was an unregistered gift deed executed by defendant No.1 in favour of the plaintiff and whether such unregistered gift deed is valid and by virtue of the said unregistered gift deed, the property has fallen to the hands of the plaintiff are Dr.GRR,J

matters which require consideration by the Trial Court, after conducting of trial."

17. The learned counsel for the petitioners-respondents herein relied

upon the judgment of the Hon'ble Apex Court in Rame Gowda (dead) by

LRs. v. M. VAradappa Naidu (dead) per LRs. and another4, wherein it

was held that:

"6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya Vs. Anil Panjwani (2003) 7 SCC 350. In-between, to quote a few out of severals, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All.1 at p.4),

"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."

In the oft-quoted case of Nair Service Society Ltd. Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the

(2004) 1 SCC 769 Dr.GRR,J

world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim - 'Possessio contra omnes valet praeter eur cui ius sit possessionis (he that hath possession hath right against all but him that hath the very right)' and said,

"A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time."

In M.C. Chockalingam and Ors. Vs. V. Manickavasagam and Ors. (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4 SCC 131, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant."

18. There is no dispute with regard to the above observations of the

Hon'ble Apex Court that a person in possession cannot be dispossessed

even by the owner of the property except by recourse to law. But,

however, no document was filed by the petitioners to show that they were

in possession of the property.

Dr.GRR,J

19. Learned counsel for the petitioners-respondents herein relied upon

the judgment of this Court in P. Jhon Britto v. Potluri Srinivas

Chowdary and another5, wherein it was held that:

"9. From the material on record, it appears that the property is a vacant property. Though the plaintiff contends that that the he is in physical possession of the property and that the 1st defendant also contends that he is in physical possession of the property, the 1st defendant did not produce any documents in his favour to show his possession over property except B1, his sale deed; B2, Award passed by the Lok Adalat, and B3, Encumbrance Certificate. Per contra, the plaintiff produced Exhibit Al, his sale deed; Exhibit A2, certificate issued by the Tahasildar, Medchal, Exhibit A3, mutation proceedings: Exhibit A4, pattadar passbook on Act, Exhibit A5, title deed book; and, Exhibit A6, copy of the police complaint. Therefore, there is sufficient evidence prima facie on the side of the plaintiff to accept the case of the plaintiff that he is in physical possession of the property. Even otherwise, since the nature of property is a vacant property, which is incapable of being physically possessed all the time, then the principle to be applied is 'possession follows title'. Since the plaintiff is able to establish title prima facie and incidentally, it shall be construed that the plaintiff is in lawful possession, as against 1st defendant, who is not able to establish prima facie title at this interlocutory stage. This view of the Court finds support from the decision of the apex Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, wherein the Supreme Court held as follows:

"As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession."

But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered

2018 (1) ALD 668 Dr.GRR,J

to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction."

20. Even in the present case, the schedule property is a vacant site.

Admittedly, the petitioners are married women and were residing away

from the schedule property. No other document was filed by them in proof

of their possession. As such, the prayer for injunction shall be decided only

basing on the title documents and as the title document filed by the

petitioners is only a photostat copy, that too, an unregistered gift deed, the

same cannot be considered as a valid document to prove their possession.

The trial court granted injunction to the petitioners by taking into

consideration the copy of the compliant dated 25.06.2021 given by the

2nd respondent to the police wherein he alleged to have admitted execution

of a gift deed by their father in favour of the petitioners. The existence and

validity of the documents in proof of the title by both the parties is a matter