Harjeeth Singh, Hyd 2 Others vs S.Ravinder Reddy, Rr Dist Anr
2022 Latest Caselaw 6894 Tel

       THE HON'BLE SRI JUSTICE SANJAY KUMAR
                        AND
           THE HON'BLE SMT. JUSTICE ANIS


     CIVIL MISCELLANEOUS APPEAL NO. 809 OF 2016


JUDGMENT: (Per the Hon'ble Smt. Justice Anis)


1.    This Civil Miscellaneous Appeal, under Order XLIII

Rule 1 read with Section 104 of the Code of Civil Procedure,

1908 (for short 'C.P.C.), is directed against the order, dated

24.08.2016 passed in I.A.No.1382 of 2016 in O.S.No.568 of

2016 on the file of the Principal District Judge, Ranga Reddy

District at L.B.Nagar.


2.    Appellants were arrayed as the respondents 1 to 3,

while the respondent No.1 as the petitioner and the

respondent No.2 as the respondent No.4 in I.A. before the

trial Court.


3.    For the sake of convenience, the parties are referred to

as arrayed in the I.A. before the trial Court.


4.    The petitioner/plaintiff filed the petition under Order

XXXIX Rules 1 and 2 read with Section 151 C.P.C. for grant

of interim injunction restraining the respondents and others

from causing interference with the petitioner's possession and

enjoyment over the petition schedule property admeasuring
                                  2                     SK, J. & ANIS, J.

CMA No. 809 of 2016

Ac.1.00 gts. in Survey No.725/8/E situated at Shamshabad

Village, Ranga Reddy District.

5. The brief averments made in the petition filed before the

trial Court are as follows:

The petitioner/plaintiff purchased the schedule

mentioned property vide registered Sale deed bearing

Document No.110/2016, dated 11.01.2016 from one

Smt. N.Nirmala. The petitioner's vendor purchased the said

property on 18.03.1998 from one Dargah Channaiah and

others through their registered General Power of Attorney by

name V.T.Prakash and obtained possession over the petition

schedule property. The title and possession of the petitioner's

vendor was very much appreciated by the revenue authorities

by mutating her name in the revenue records on 09.07.1998

and assigned Patta No.920. The petitioner's vendor also

constructed a compound wall with different heights encircling

the schedule land to protect from trespassers. Earlier, when

the respondents 2 and 3 tried to cause interference with her

possession and enjoyment of the schedule land in the year

2005, the petitioner's vendor filed a suit in O.S.No.493 of

2005 on the file of the II Additional Senior Civil Judge, Ranga

Reddy District at L.B.Nagar and in that suit, the respondents

2 and 3 appeared and filed Written Statement admitting the 3 SK, J. & ANIS, J.

CMA No. 809 of 2016

ownership and physical possession of the petitioner's vendor.

Later on, the petitioner's vendor filed I.A.No.289 of 2008

under Order XXIII Rule 1(3) C.P.C., seeking permission to

withdraw the suit reserving right to file a fresh one and

ultimately the petition was allowed on 29.07.2008. Prior to

filing of O.S.No.493 of 2015 by the petitioner's vendor, there

were proceedings before this Court under the provisions of

Companies Act, 1956 in Company Petition Nos.112 of 2007,

114 of 2001, etc. and in those proceedings, the ownership

and physical possession of the petitioner's vendor was

appreciated. After purchase of the petition schedule property,

the petitioner got repaired the damaged portion of the

compound wall and raised its height and also filed an

application before the gram panchayat seeking permission to

construct the servant quarters on 27.05.2016 and the same

was accorded after due process. The respondents without

any manner of right came to the petition schedule property on

01.06.2016 and tried to demolish the compound wall. The

said illegal acts of the respondents were resisted by the

petitioner. Thereupon, when the petitioner approached the

police for lodging a complaint, they advised the petitioner to

approach a competent civil court as the dispute is of a civil

nature. The petitioner, having no other go, filed the suit in

O.S.No.568 of 2016 and also filed the present petition in that 4 SK, J. & ANIS, J.

CMA No. 809 of 2016

suit. The petitioner got prima facie case and balance of

convenience is in his favour. Therefore, prayed the Court to

grant interim injunction, otherwise he wound suffer

irreparable loss.

6. The respondents 2 and 3 filed their counter, whereas

the first respondent filed a separate counter. The brief

averments made in the Counters filed by the above

respondents before the trial Court are as follows:

The third respondent is the husband of the second

respondent and the first respondent is the Manager of the

company owned by respondents 2 and 3. The fourth

respondent is a stranger to them and he must have been

planted by the plaintiff to support his case. The vendor of the

petitioner herself could not identify the existence of her land

in O.S.No.493 of 2005 filed against the respondents 2 and 3,

as such she withdrew the said suit having failed to obtain any

interim orders from the Court. The petitioner's vendor by

name Nirmala, having failed to succeed in her illegal attempts

to grab the petition schedule property, sought permission

from the Court to file a fresh suit by withdrawing O.S.No.493

of 2005. After lapse of 8 years, the petitioner, who purchased

the property from his vendor Nirmala, filed the present suit.

The petitioner's vendor also filed another suit in O.S.No.2570 5 SK, J. & ANIS, J.

CMA No. 809 of 2016

of 2005 against the vendor of the second respondent for the

same relief of injunction and in that suit also, she miserably

failed. The second respondent is the absolute owner and

possessor of the agricultural land admeasuring Ac.1.13 gts.

in Survey No.1528/8/AA having purchased the same by a

registered Sale deed dated 21.12.1998 from one

Smt. Yellamma W/o.late Samson and ever since the date of

purchase, she has been in continuous possession and

enjoyment of the said property. She also raised a compound

wall, fixed a gate and constructed a thatched shed in the said

property. She was also granted pattadar passbook and title

deed for the said property. The land of second respondent is

forming part of Survey No.725/8/AA, which is naturally part

of Survey No.725/8, whereas the petitioner's vendor claimed

the property which is forming part of Survey No.725/8/E

through V.T.Prakash, the G.P.A. holder, for an extent of

Ac.3.00 from Rachamalla Nagaiah and others. Basing on the

G.P.A., Ac.1.00 of land was sold in favour of the petitioner's

vendor. Hence, neither the petitioner nor his vendor has

concern with Ac.1.13 gts. of land purchased by the second

respondent. The total extent of land in Survey No.725/8 is

Ac.10.00 and its original pattadars were Muthaiah, Pentaiah

and Balaiah. Muthaiah was survived by only son Babaiah.

The entire extent of Ac.3.00 devolved upon him was sold away 6 SK, J. & ANIS, J.

CMA No. 809 of 2016

by the said Babaiah to one Raman Bhai Patel, who in turn

sold the same to third parties. But, the revenue records

stand in the name of Raman Bhai Patel as pattadar for

Survey No.728/8/A. Similarly, the son of another pattadar

by name Pentaiah, who owned and possessed Ac.3.00 of land

in Survey No.728/8/E, executed G.P.A. in favour of

V.T.Prakash for the said extent. The said G.P.A. holder sold

away Ac.3.00 of land in Survey No.728/8/E in favour of

Southern Continental Contractors Limited through a

registered Sale deed dated 26.10.1999. The G.P.A. holder

also made several transactions for more than Ac.3.00 of land

by showing false boundaries to different persons. The said

G.P.A. holder was not clear and definite about identification of

the land with specific boundaries. In the G.P.A. executed in

favour of the said V.T.Prakash, the boundaries are not shown

for Ac.3.00 of land. Therefore, the boundaries shown by him

in various link documents for the lands sold in favour of the

petitioner and others are baseless and not in existence at all.

The petitioner's vendor Nirmala might be having a Sale deed

for an extent of Ac.1.00, but the identification and existence

of the said land is to be established and proved by her. Thus,

the petitioner is not holding any physical possession of the

land and in fact, he is not in a position to identify his land, 7 SK, J. & ANIS, J.

CMA No. 809 of 2016

but wrongly identified the land of second respondent and

attempting to trespass and occupy the said land.

The father-in-law of the second respondent's vendor by

name Balaiah died and he was survived by three sons,

namely, Samson, Pentaiah and Swamy. Late Balaiah owned

and possessed Ac.4.00 of land in Survey No.725/8 and after

his death, the said property devolved on his three sons and

the eldest son Samson is the husband of the second

respondent's vendor. After the death of Samson, his wife

Yellamma became the absolute owner of Ac.1.13 gts. allotted

to her husband and her name was recorded as pattadar.

Subsequently, she sold Ac.1.13 gts. to the second respondent

under a registered Sale deed dated 21.12.1998 and ever since

the date of purchase, the second respondent has been in

possession of Ac.1.13 gts.

The second respondent is not a party to the proceedings

initiated under the Companies Act before this Court. The

schedules given in O.S.Nos.493 of 2005 and 2570 of 2005 are

different to that of the present suit and inconsistent with the

sale deeds of the petitioner's vendor and petitioner himself,

and the boundaries are also different. The petitioner's vendor

herself was not sure about the existence and identification of

her land, naturally the petitioner is not definite about the 8 SK, J. & ANIS, J.

CMA No. 809 of 2016

existence of suit land. The boundaries shown by the

petitioner for the alleged land are contrary and different from

the boundaries shown in his sale deed and also different to

the boundaries given in the alleged sale deed for Ac.1.00 of

land of his vendor. The petitioner failed to prove that he is in

possession of the petition schedule property. The petitioner

in collusion with his vendor, has brought into existence of

sale deed dated 11.01.2016 and filed the suit to grab the

property of the second respondent. At one point of time, the

petitioner's vendor Nirmala with the help of unsocial elements

damaged the gate and part of compound wall constructed by

the second respondent, for which complaint was lodged with

the police. The petitioner's vendor after withdrawing the

earlier suit in O.S.No.493 of 2005 by reserving right to file a

fresh suit, did not institute a fresh suit either for declaration

and possession or injunction because of uncertainty of

existence and identification of her land. The petitioner

miserably failed to prove prima facie case and balance of

convenience, and therefore, prayed the Court to dismiss the

petition.

7. During the course of enquiry, on behalf of the petitioner,

Exs.P.1 to P.19 got marked and on behalf of the respondents,

Exs.R.1 to R.34 got marked by consent.

                                         9                        SK, J. & ANIS, J.
                                                              CMA No. 809 of 2016

8. After perusing the material on record, the trial Court

allowed the petition and granted temporary injunction

restraining the respondents and others claiming through

them from interfering with the possession and enjoyment of

the schedule property by the petitioner till the disposal of the

main suit. The reasons mentioned by the trial Court for such

findings are extracted hereunder:

"Whether the property that is being claimed by the petitioner and that of respondents 1 to 3 are one and the same or there is overlapping of boundaries of the survey numbers are to be seen only after allowing the parties to lead the oral evidence to prove the contents of the documents relied on by them. It is apparent from the record that the respondents are claiming different property of Ac.1-13 gts forming part of Sy.No.725/8/AA, whereas the petitioner is claiming Ac.1-00 gts in Sy.No.725/8/E. That apart, respondents 2 & 3 in the earlier proceedings have admitted the right and title of petitioner's vendor for this Ac.1-00 gts and it is the schedule of the present suit. Merely because the petitioner's vendor did not institute comprehensive suit subsequently after withdrawing the earlier suit, it does not mean that the petitioner cannot claim the relief of injunction for Ac.1-00 gts of land, because the title of his vendor over it was admitted by the respondents 2 & 3 in the earlier proceedings."

9. Aggrieved by the order passed by the trial Court, the

respondents 1 to 3/defendants preferred the present Civil

Miscellaneous Appeal.

10. The learned counsel for the appellants/respondents

argued that the appellant No.2 purchased the property about 10 SK, J. & ANIS, J.

CMA No. 809 of 2016

20 years prior to the purchase of the petitioner and also got

effected mutation in the revenue records and obtained the

pattadar passbook and title deeds, and also got entered their

names in pahanies and made construction of the compound

wall by obtaining permission from gram panchayat. It is also

argued that the learned trial judge without appreciating the

documentary evidence produced by the petitioner in right

perspective, granted injunction in his favour though the

petition schedule property is not an identifiable property with

specific boundaries. It is also argued that the learned trial

Judge ought to have appreciated that the appellant No.2 is a

bona fide purchaser under the registered Sale deed much

prior to the purchase of the petitioner and she is in

possession and enjoyment of the property. It is also argued

that the Court below failed to observe that the suit claim is

only in respect of Ac.1.00 in Survey No.725/8/E without

there being any survey and demarcation and the learned

Judge ought not to have granted injunction in favour of the

respondent/petitioner in the absence of any valid proof of

survey fixing the boundaries of the petition schedule property

with that of the remaining extent of land. It is also argued

that the boundaries mentioned in the sale deeds Exs.P.1 and

P.2 are not tallying with each other on the eastern side, and

that there is a dispute about the identity of the property and 11 SK, J. & ANIS, J.

CMA No. 809 of 2016

this fact was observed by the trial Court, but stated that it

will be decided only after allowing the parties to lead the oral

evidence. It is also argued that earlier the petitioner's vendor

filed O.S.No.493 of 2005 and failed to get an injunction in

I.A.No.690 of 2005 and that against the orders in I.A.No.690

of 2005, C.M.A.No.5 of 2006 was filed and the same was

dismissed and thereafter, C.R.P.No.721 of 2007 was filed,

which was also dismissed, and therefore, the petitioner will

not get any better title or possession than that of his vendor

Nirmala, and thereafter, the petitioner withdrew the suit after

obtaining permission for filing a fresh suit. Therefore, prayed

the Court to set aside the orders passed in I.A.No.1382 of

2016, dated 24.08.2016, by the Principal District Judge,

Ranga Reddy District by allowing the Civil Miscellaneous

Appeal.

11. On the other hand, the learned counsel for the

respondent/petitioner argued that the petitioner purchased

the property from his vendor by name Nirmala under a

registered document dated 11.01.2016 for a valuable

consideration and his vendor delivered possession of the

petition schedule property. It is further argued that earlier

when the respondents 2 and 3 tried to interfere with the

peaceful possession and enjoyment of the petitioner's vendor, 12 SK, J. & ANIS, J.

CMA No. 809 of 2016

she filed O.S.No.493 of 2015 on the file of the II Additional

Senior Civil Judge, Ranga Reddy District and in that suit, the

respondents 2 and 3 admitted about the ownership of the

petitioner's vendor to an extent of Ac.1.00 and basing on the

said admission, the trial Court rightly granted injunction in

favour of the respondent/petitioner. It is also argued that the

documentary evidence produced by the petitioner clearly

established that his vendor Nirmala had been in peaceful

possession and enjoyment of the petition schedule property

and her name was entered in the revenue records and that

pahanies were issued and therefore the trial Court rightly

granted injunction. It is also argued that the petitioner's

vendor Nirmala has paid Rs.2,50,000/- to the Southern

Continental Contractors Limited in a Company Petition

No.112 of 2007 and in those proceedings, it is clearly

mentioned that the vendor of the petitioner is Smt. Nirmala.

Finally, it is argued that the petitioner proved his prima facie

case and balance of convenience is in his favour, as such, the

trial Court rightly granted injunction and the said findings of

the trial Court need no interference, and prayed the Court to

dismiss the Civil Miscellaneous Appeal.

12. After hearing both sides, the point that arises for

consideration is:

                                  13                 SK, J. & ANIS, J.
                                                 CMA No. 809 of 2016

Whether the appellants/respondents have made out any

case to set aside the impugned order passed by the trial

Court as prayed for?

13. POINT:

A perusal of the record shows that there is no dispute

that the total extent of Survey No.725/8 is Ac.10.00 and its

original pattadars were Muthaiah, Pentaiah and Balaiah.

Pentaiah was having only one son by name Nagaiah, who

owned and possessed Ac.3.00 of land in Survey No.725/8/A.

The said Nagaiah during his lifetime executed G.P.A. in favour

of one V.T.Prakash to an extent of Ac.3.00. The said G.P.A.

holder sold Ac.3.00 of land in favour of Southern Continental

Contractors Limited through a registered Sale deed dated

26.10.1999.

14. It is the case of the petitioner's vendor that she

purchased the petition schedule property under a registered

sale deed through G.P.A. holder V.T.Prakash on 28.03.1995.

It is an admitted fact that when the respondents 2 and 3 tried

to interfere with the possession of the petitioner's vendor, she

filed O.S.No.493 of 2005 on the file of the

II Additional Senior Civil Judge, Ranga Reddy District and in

that suit, she also filed I.A.No.690 of 2005 seeking interim 14 SK, J. & ANIS, J.

CMA No. 809 of 2016

injunction and the same was dismissed on 05.12.2005.

Aggrieved by the orders passed in I.A.No.690 of 2005, the

petitioner's vendor filed C.M.A.No.5 of 2016 and the said

C.M.A. was also dismissed on 23.10.2006, against which

C.R.P.No.721 of 2007 was preferred. The said C.R.P. was

dismissed by this Court on 13.04.2007 by observing thus:

"The submission that the respondents admitted the possession of the

petitioner-plaintiff in respect of Ac.1.00 of land is misconceived. As

seen from the written statement filed by the respondents in the lower

Court, they opposed the entire suit claim. Further, as found by the

trial Court the boundaries of the suit schedule property mentioned in

the plaint did not tally with Exs.A.1 and A.2. The question whether

the petitioner-plaintiff has prima facie case or not is a question of fact

on which both the Courts below held against her. In such a case, this

Court cannot take a different view and came to the conclusion that

there is an error on the face of the record."

15. It is also admitted fact that the petitioner's vendor

Nirmala also filed I.A.No.289 of 2008 under Order XXIII Rule

1(3) C.P.C. seeking permission of the Court to withdraw the

suit reserving her right to file a fresh suit and the said

petition was allowed on 29.07.2008 after due contest. After

allowing the petition on 29.07.2008, till this day, the

petitioner's vendor has not filed any suit seeking declaration

of her title to the petition schedule property.

                               15                  SK, J. & ANIS, J.
                                               CMA No. 809 of 2016

16. Further, the trial Court as well as the first appellate

Court and also this Court while passing orders clearly held

that the boundaries of the schedule property mentioned in

the plaint in O.S.No.493 of 2005 did not tally with Exs.A.1

and A.2 and the admission of the respondents 2 and 3 about

the possession of the petitioner's vendor in respect of Ac.1.00

of land is misconceived. It is also held that in the written

statement filed by the respondents 2 and 3, they opposed the

entire suit claim. But, on the other hand, the petitioner's

vendor has not proved her title to the petition schedule

property and thereby the petitioner cannot derive better title

than his vendor Nirmala.

17. A perusal of the order passed by the trial Court, it is

clear that only based on the admission about the possession

of the petitioner's vendor to an extent of Ac.1.00 in

O.S.No.493 of 2005, the trial Court granted injunction though

it is found that the property claimed by the petitioner and the

respondents are one and the same and that there are

overlapping boundaries of the survey numbers. However, the

trial Court observed that it can be gone into the trial of the

case after parties leading oral evidence to prove the contents

of the document. This finding of the trial Court is erroneous

as this Court already held that admission of the respondents 16 SK, J. & ANIS, J.

CMA No. 809 of 2016

2 and 3 herein about the possession of the petitioner is

misconceived and further the boundaries to the suit schedule

property are also not tallying.

18. Admittedly, there is a dispute about the identity of the

property and both the parties are claiming same property

with different sub-divisions to Survey No.725/8. The fact of

payment of Rs.2,50,000/- by the petitioner's vendor Nirmala

to the Southern Continental Contractors Limited which was

mentioned in the Company Petition, cannot be taken into

consideration to prove the prima facie case and balance of

convenience in favour of the petitioner. Therefore, the

petitioner failed to prove that his vendor got prima facie title

and possession over the petition schedule property. On the

other hand, the respondents categorically claimed that they

have purchased property in the year 1998 which is forming

part of Survey No.725/8/E admeasuring Ac.1.13 gts. from

the wife of one Samson who was the son of late Balaiah, one

of the pattadar. The other documentary evidence also

prima facie proves the appellants' case and the

respondent/plaintiff failed to prove the essential ingredients

of Order XXXIX Rules 1 and 2 C.P.C. Therefore, the order of

the trial Court in granting injunction is liable to be set aside.

                               17                    SK, J. & ANIS, J.
                                                 CMA No. 809 of 2016

19. In the result, the Civil Miscellaneous Appeal is allowed,

setting aside the order dated 24.08.2016, passed by the

Principal District Judge, Ranga Reddy District at L.B.Nagar,

in I.A.No.1382 of 2016 in O.S.No.568 of 2016. No order as to

costs. However, it is made clear that the trial Court shall

dispose of the suit on its own merits, uninfluenced by any of

the observations made by this Court in this order or in the

impugned order passed by the trial Court itself.

20. Miscellaneous Petitions, if any, pending in the Civil

Miscellaneous Appeal shall stand closed.

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(SANJAY KUMAR, J)

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(ANIS, J) 09.11.2016 Anr 18 SK, J. & ANIS, J.

CMA No. 809 of 2016

THE HON'BLE SRI JUSTICE SANJAY KUMAR AND THE HON'BLE SMT. JUSTICE ANIS

CIVIL MISCELLANEOUS APPEAL NO. 809 OF 2016 (per the Hon'ble Smt. Justice Anis)

09.11.2016 Anr