M/S. Shanta Sriram Constructions ... vs The State Of Telangana And 3 Others
2022 Latest Caselaw 756 Tel

           HONOURABLE SRI JUSTICE P. NAVEEN RAO
                              &
           HONOURABLE SMT JUSTICE P SREE SUDHA

       CIVIL MISCELLANEOUS APPEAL NO.535 OF 2021


                        Date:18.02.2022
Between:

M/s. Shanta Sriram Constructions Pvt. Ltd.,
Having its registered Office at 501, Amogh Plaza,
Beside Grand Kakatiya Hotel, Begumpet,
Hyderabad, rep.by its Managing Director,
M.Narsaiah, s/o. Sriramulu, Aged about 50 yrs,
Occu: Business, r/o.H.No.8-2-417/A/2,
Road No.6, Banjara Hills, Hyderabad.

                                           .... Appellant/Defendant

      and

The State of Telangana, rep.by its
Principal Secretary, Revenue Department,
Secretariat, Hyderabad and others.

                                         .... Respondents/plaintiffs

This Court made the following:

PNR,J & PSS,J CMA No.535 of 2021

HONOURABLE SRI JUSTICE P. NAVEEN RAO & HONOURABLE SMT JUSTICE P SREE SUDHA

CIVIL MISCELLANEOUS APPEAL NO.535 OF 2021

JUDGMENT: (Per Hon'ble Sri Justice P.Naveen Rao)

This Miscellaneous Appeal is preferred against orders of

I Additional Chief Judge, City Civil Court at Hyderabad dated

04.10.2021 in I.A.No.955 of 2021 in O.S.No.55 of 2021, where

under the trial Court ordered the parties to maintain status quo on

the suit schedule property till the final disposal of the suit. The

suit schedule property is Acs.40.00 guntas of land in GLR

Sy.No.243, Cantonment area, Secunderabad. GLR is General Land

Record maintained by the Cantonment Board established under

the Cantonment Act, 1924 and Rules made there under. Large

tracts of land in Secunderabad area is governed by this Act.

2. From the averments in the suit plaint, following facts are

culled out:

2.1. According to plaintiffs, the State of Telangana is the owner

and in possession of Acs.40.00 guntas of land out of Acs.119.34

guntas forming part of GLR Sy.No.243 bearing Mutation

I.D.No.243 in Cantonment Area of Secunderabad. The GLR reflects

the ownership claim of plaintiff-State. GLR is a public document

and entries made in GLR are conclusive evidence of title to the

property.

2.2. Plaintiffs aver that the entries in GLR show that the State is

the landlord. According to plaintiffs, ownership claim of plaintiffs

stood affirmed by this Court in the decision dated 25.09.1997 in PNR,J & PSS,J CMA No.535 of 2021

W.P.No.17768 of 1996 and by the Division Bench in W.A.No.1297

of 1997 instituted by the State Wakf Board and by the Wakf

Tribunal in O.S.No.121 of 1998 filed by the Wakf Board. This

Court and the Wakf Tribunal rejected the claim of the Wakf Board

as owner of the land in issue and held that the State is the

pattedar.

2.3. Plaintiffs assert that the suit schedule land is in continuous

possession of the plaintiff-State. Plaintiffs also assert that the

report of survey conducted in the year 2012-2013 unequivocally

establishes the location of suit schedule land and possession of the

said land as vesting in the State.

2.4. That being so, plaintiffs allege that under the guise of

securing Development Agreement-cum-General Power of Attorney

(DAGPA) from the legal heirs of S.K.Harilal and others in respect of

Acs.42.00 guntas of land forming part of Sy.Nos.1 and 2 of

Lothukunta village of Ranga Reddy district (presently Medchal-

Malkajgiri district) the defendant tried to encroach into the suit

schedule property of plaintiffs. According to plaintiffs, the right

and interest to develop the property claimed by the defendant is

based on an unregistered DAGPA which is not tenable in law.

2.5. It is the further case of plaintiff that when defendant tried to

encroach into Government land, the Tahsildar, Tirumlgiri Mandal

passed orders under Section 6 of the Andhra Pradesh Land

Encroachment Act, 1905 (for short, 'Act, 1905') on 13.11.2015 for

eviction. Defendant was evicted and the State resumed possession

of the suit schedule land on 15.02.2016.

PNR,J & PSS,J CMA No.535 of 2021

2.6. Claiming that the defendant is repeatedly attempting to

encroach into Government land by setting up a false claim of title

based on fraud and fictitious documents, the State instituted suit

praying to grant decree for declaration of title and permanent

injunction declaring the State of Telangana as the absolute owner

of the suit schedule property; to declare the documents mentioned

in prayer-(ii) as void qua the suit schedule property; and to grant

perpetual injunction in respect of suit schedule property

restraining the defendant or persons through the defendant from

interfering.

3. Alleging that the defendant was once again making attempts

to encroach into the suit schedule land on the strength of orders of

learned single Judge in W.P.No.5049 of 2016 dated 08.03.2021

even though in W.A.No.150 of 2021 the Division Bench stayed the

operation of learned single Judge order, in the said suit plaintiffs

filed I.A.No.955 of 2021 praying to grant ad-interim injunction

restraining the defendant or any other persons claiming through

defendant from interference in the suit schedule property pending

disposal of the suit.

4. The defendant opposed the prayer in I.A.No.955 of 2021 to

grant injunction on various grounds. It is the primary contention

of the defendant that the plaintiff-State is not the owner of the land

and is in illegal possession; that without first establishing the title

to the suit schedule property in a suit filed praying to grant

declaration of title, the plaintiffs are not entitled to injunction.

PNR,J & PSS,J CMA No.535 of 2021

5. The trial Court, by the order, against which instant appeal is

preferred, directed parties to maintain status quo obtaining as on

that date on the suit schedule land.

6. Heard Sri V.Ravinder Rao learned senior counsel appearing

for Mr. Zeeshan Adnan Mahmood, learned counsel for appellant,

and learned Advocate General for respondents 1 to 4. Parties are

referred to as arrayed in the suit.

7. Extensive submissions are made by learned senior counsel

for defendant and learned Advocate General for plaintiffs touching

upon various aspects of suit claim and relied on voluminous

documents in support of respective submissions. Both assert title

to the suit schedule property.

8.1. According to learned senior counsel, Interlocutory

Application seeking interim injunction was not maintainable in the

first place in view of the decision of learned single Judge in

W.P.No.5049 of 2016 and expiry of time granted by the Division

Bench. As directed by learned single Judge the State was required

to handover possession and, therefore, the State cannot seek

injunction against defendant in whose favour decision was

rendered by learned single Judge.

8.2. Learned senior counsel would submit that in W.P.No.5049 of

2016 appellant sought to set aside the land encroachment and

eviction proceedings initiated by Tahsildar, Tirumalagiri Mandal,

Hyderabad District and later confirmed in Appeal under Section 10

of the Act 1905 by the Revenue Divisional Officer, Secunderabad

Division dated 13.02.2016 against them. The main issue PNR,J & PSS,J CMA No.535 of 2021

considered by this Court was whether the subject land is located in

Lothkunta Village, Malkajgiri Mandal, Ranga Reddy District as

contended by the defendant and does not form part of Tirumalagiri

Mandal as contended by the plaintiffs, who state that it forms part

of GLR No.243 of Tirumalagiri Village, situated in Cantonment area

of Secunderabad. On due consideration of the entire controversy,

the learned single Judge issued directions in paragraph-117 of the

judgment.

8.3. When the matter was appealed it was recorded in Writ

Appeal No.150 of 2021, that plaintiffs stated that they would

approach the Civil Court and file a civil suit claiming title and

possession. The Division Bench has only stayed the order of

learned single Judge for four weeks to enable State to file civil suit.

After four weeks, the State is bound to handover possession.

8.4. The learned senior counsel relied on decisions of the

Supreme Court in Mrutunjay Pani and Another v. Narmada Bala

Sasmal and Another1, and Kusheshwar Prasad Singh v. State of

Bihar2, to contend that once an obligation is cast on a party, it

cannot take advantage of breaching such obligation; in reference to

this Courts order in the writ petition and subsequent writ appeal

and seek protection in independent proceedings.

8.5. It is the forcible submission of learned senior counsel that

plaintiffs did not make out prima facie case to grant injunction.

According to learned senior counsel, as held in Agricultural

Produce Market Committee and others v. Girdharbhai

AIR 1961 SC 1353

(2007) 11 SCC 447 PNR,J & PSS,J CMA No.535 of 2021

Ramjibhai Channiyara and others3 by the Hon'ble Supreme

Court, a temporary injunction can be granted only if the "person

seeking injunction has a concluded right, capable of being enforced

by way of injunction".

8.6. It is contended by the learned senior counsel that the court

erred in granting status quo after specifically recording the lack of

a prima facie case on part of the respondent, on whom the onus

falls in establishing one as part and parcel of seeking interim relief.

According to learned senior counsel, the civil Court's observation

that plaintiffs failed to prove a prima facie case, makes any further

consideration of balance of convenience etc as unnecessary as the

essential condition for interim injunction is unmet by the

respondent on whom the onus lies. He would submit, any other

consideration is insignificant as a result.

9. By placing reliance on exhibits filed on behalf of the plaintiffs

before the trial Court, learned Advocate General would contend

that the land to an extent of Acs.40.00 guntas, forming part of GLR

Sy.No.243, is Government land. He would submit that GLR record

(Ex.P1) shows the status and the Estate Officer also asserts the

land as Government land.

9.1. He would submit that the claim of the defendant is bogus

and by falsely placing reliance on illegal documents, the defendant

is trying to encroach the Government land. By referring to

Development Agreement-cum-GPA, dated 15.10.2006 (Ex.P16) and

sale deed (Ex.P17), he would submit that the defendant is tracing

the authority to execute the said documents by so-called owners of

AIR 1997 SC 2674 PNR,J & PSS,J CMA No.535 of 2021

the land referring to sale deed document No.2330 of 1955 dated

26.12.1955. Said document does not concern the land in Sy.Nos.1

and 2 of Lothukunta. They appear to be sham transactions,

created only to grab the Government land. He would submit that

the contention of the learned senior counsel for the defendant that

there was wrong number typed in the document cannot be

accepted, inasmuch as the document number in Exs.P16 and P17

is not rectified and stands as on today. He further submitted that

the said document is not marked before the trial Court and is not

filed before this Court also. He would therefore urge that unless

genuineness of the documents (Exs.P16 and P17) is established

before the trial Court, defendant cannot assert ownership of the

land and to dispossess the plaintiffs.

9.2. He would further submit that defendant cannot be called as

owner of the property as he only holds DAGPA. He is at the most

entitled to 55% share out of 57% share earmarked for developer

and, therefore, has no manner of right or interest in the subject

land to prosecute litigation.

9.3. By referring to the terms of DAGPA, he would submit that

the terms are unusual and not found in similar documents

throwing doubts on genuineness of the claim. He refers to clause-

7(A) of the development agreement to contend that defendant

cannot become owner of the land under a DAGPA. He further

refers to clause-19 of DAGPA to contend that he is only the GPA

holder, he can at the most represent the original owner of the

property, but he cannot prosecute litigation on his own. He would

submit that the contract does not disclose the true intention of the PNR,J & PSS,J CMA No.535 of 2021

parties. It is an unlawful contract and cannot rely upon the terms

of such illegal contract to assert right and title. By referring to the

schedule of the property appended to DAGPA, learned Advocate

General would submit that boundaries disclose that on the

Northern side there was a Railway track, on Southern side, GLR

Sy.No.243 and on the Western side, GLR Sy.No.248. This coupled

with the survey report as per the survey conducted by the Survey

Authorities discloses that actual location of the land in GLR

Sy.No.243 is far away from the land claimed by the defendant.

9.4. According to the learned Advocate General, Ex.R34 though

described as an agreement of sale, reading of the terms would

disclose that it is not an agreement of sale, but it is a development

agreement. There cannot be an agreement of sale drafted in the

manner of development agreement. This is one other reason to

contend that sham documents are created to knock away

Government land.

9.5. Learned Advocate General would contend that these aspects

were not looked into by the learned single Judge in W.P.No.5049 of

2016 and these aspects require consideration during the course of

trial in the suit. He would submit that learned trial Court has not

appreciated the voluminous evidence brought on record on behalf

of the plaintiffs to show that the land in GLR Sy.No.243 is a

Government land. The plaintiffs have made out prima facie case of

ownership and triable issue, but the trial Court erred in holding

that plaintiffs did not make out prima facie case, which finding is

contrary to the material on record.

PNR,J & PSS,J CMA No.535 of 2021

9.6. He would also submit that as observed by the learned single

Judge in paragraph-118 of the judgment in W.P.No.5049 of 2016,

the observations made in the judgment are only for the purpose of

consideration on validity of proceedings taken out against the

defendant under the Land Encroachment Act and cannot be said

to affect the pleas urged in the suit. The trial Court is competent

to go into all aspects of the pleas raised. That being so, the trial

Court erred in relying on observations made in the said judgment

to hold against plaintiffs.

9.7. Learned Advocate General asserts that State is in possession

of the land and defendant is trying to dispossess the plaintiffs by

referring to the directions issued by the learned single Judge in

W.P.No.5049 of 2016. In view of the orders of the Division Bench

of this Court in Writ Appeal No.150 of 2021 and Writ Appeal

No.598 of 2021, the defendant cannot claim possession until the

suit is decided. Though learned trial Court erred in observing that

the plaintiffs did not prove prima facie case, the trial Court is right

in ordering status quo on suit land. It is just and equitable and is

equally binding on plaintiffs.

9.8. He would submit that as of now, State is in possession of

suit schedule land. The intention of the defendant is very clear.

As defendant claimed to have obtained building permissions, if

injunction order is vacated, he would take forceful possession of

the suit land, undertake construction of multistoried complexes

and create third party interests leading to multiplicity of litigation.

Such course will result in altering physical features, which cannot

be reversed, resulting in grave prejudice to plaintiffs. He would PNR,J & PSS,J CMA No.535 of 2021

submit that the State intends to utilize the land to construct

houses for the weaker sections. Therefore, if the defendant is

permitted to undertake construction of multistoried complex, the

endeavour of the State to provide houses to the weaker sections

would be defeated, causing greater mischief to larger public.

10. The nature and scope of granting temporary injunction has

been looked into detail by this Court. But, before going into scope

of power and jurisdiction of civil Court to grant interim injunction/

interim order/interim direction in a pending suit, it is necessary to

clear the aspect whether the trial Court grossly erred even in

considering the interlocutory application at all having regard to

decision of learned single Judge in W.P.No.5049 of 2016.

11. It is pertinent to note that the W.P.No.5049 of 2016 was

instituted by the defendant against order of eviction under A.P.

Land Encroachment Act. Appellant herein placed heavy reliance on

directions issued in paragraph-117 of the judgment. To the extent

relevant the directions read as under:

"117. (c). the respondents are directed to restore possession of the land admeasuring Acs.40.00 in Survey Nos.1 and 2 of Lokhunta Village which the respondents claim to be in Tirumalgiri Mandal of Hyderabad District to the petitioner within four (04) weeks as they have taken possession of the said land from the petitioner pending the disposal of the appeal under Section 10 of the Act by the 3rd respondent;

(d) and the respondents shall not interfere with the possession and enjoyment of the petitioner over the said land unless they obtain a decree from a competent civil court declaring the State's title to the said land, and also a decree for possession against the petitioner in title; and..."

12. It is appropriate to note that the issue before learned single

Judge was on validity of an order directing eviction of defendant

under Land Encroachment Act and it was not a case of title

dispute. In the judgment though there was extensive discussion on PNR,J & PSS,J CMA No.535 of 2021

various aspects, in paragraph-118 the learned single Judge

clarified the scope of discussion. It reads as under:

"118. It is made clear that whatever observations are made in this order as regards the rival claims of the petitioner/it's predecessors-in-title are only for the limited purpose of deciding this Writ Petition and if the State approaches a Civil Court by filing a Civil Suit for declaration of it's title and for recovery of possession, the said suit shall be independently decided uninfluenced by observations made herein."

(emphasis supplied)

13. In W.A.No.150 of 2021 preferred against above judgment, the

Division Bench noted the intendment of the State to prefer suit,

granted stay of operation of the decision of learned single Judge for

four weeks to enable the State to prefer suit. The State was also

given discretion to file interlocutory application to seek injunction

pending trial and disposal of the suit. It is pertinent to note

further observations and directions of the Division Bench.

Relevant portion of the order reads as under:

"3..... The operation of the impugned order shall remain stayed for a period of four weeks reckoned from today to enable the appellants to seek appropriate legal recourse. It is however made clear that the aforesaid protection granted to the appellants shall not be construed as an observation on the merits of the suit that the appellants propose to institute. The learned trial Court shall be at liberty to pass appropriate orders on the stay application that may be filed by the appellants along with plaint, uninfluenced by the order passed above."

(emphasis supplied)

14. On reading of order of learned single Judge in paragraph-

118 of the judgment in W.P.No.5049 of 2016 and the observations

of the Division Bench in W.A.No.150 of 2021, it is beyond pale of

doubt that the trial Court is required to consider the injunction

application on merits not being swayed by any of the observations

made by learned single Judge in W.P. No. 5049 of 2016 and has

the full discretion to consider and decide the interlocutory

application filed by the State in the instant suit. We, therefore, see

no merit in the submission of learned senior counsel on the trial PNR,J & PSS,J CMA No.535 of 2021

Court exercising its discretion to consider injunction application

filed by the plaintiffs.

15. Having cleared this cloud of uncertainty, it takes us to

consider the main issue, i.e., whether the trial Court exceeded its

jurisdiction and erred in directing to maintain status quo by both

parties.

16. In any civil dispute a Court has wide spectrum of powers to

deal with various aspects of litigation and at various stages of

litigation. In a civil dispute parties file interlocutory applications

seeking relief at various stages of litigation. For example, condone

delay in filing a case; to grant ex parte injunction; to reject plaint;

to appoint a Commissioner to ascertain factual aspects on ground;

to implead/ to delete a defendant; to recall a witness; to mark a

document, etc. Various provisions of CPC guide the Courts to deal

with such applications.

17. Order XXXIX of CPC is one such provision. It is

comprehensive, dealing with various contingencies, viz., to grant,

to vary the order already granted, to seek enforcement of the order

so made, interim custody/protection/sale of suit property/assets,

etc.

18. The settled principle is that while passing an interim order of

injunction under Order XXXIX Rules 1 and 2 of CPC, the Court

needs to note three basic principles, namely, a) prima facie case, b)

balance of convenience/inconvenience, and c) irreparable loss and

injury. Courts do not view consideration of applications for

temporary injunctions as a matter of course or right, but one that PNR,J & PSS,J CMA No.535 of 2021

requires serious pondering. Considering these principles is not

mere rhetoric but have to be established beyond doubt in order to

warrant interim relief. Along with these essential requirements

interim relief is also viewed as an equitable and discretionary relief,

where conduct of party will also be examined. It is also settled

principle that making out prima facie case is not sufficient in the

grant of interim relief. Court must also find that along with prima

facie case, refusal to grant the relief will cause injury to the

petitioner and in such a manner that it would be irreparable in

future course.

19. At the stage of considering injunction application Court

cannot hold that plaintiff is most likely to succeed in the suit.

Court is only required to assess whether, prima facie case is made

out on the dispute raised in the suit, and whether a triable issue is

made out. Prima facie case is not to be confused with prima facie

title which has to be established, on evidence at the trial. Only

prima facie case is a substantial question raised, bona fide, which

needs investigation and a decision on merits (Paragraph-4, Dalpat

Kumar vs. Prahlad Singh : (1992) 1 SCC 719). Once this exercise is

undertaken, Court then proceeds to assess whether balance of

convenience is in favour of plaintiff, whether not granting

injunction would result in greater harm to plaintiff which cannot

be remedied at the time of passing judgment and decree and to

weigh whether mischief or inconvenience likely to cause to plaintiff

if injunction is not granted is greater than granting the injunction.

PNR,J & PSS,J CMA No.535 of 2021

20. At this stage, it is apt to note the opinion expressed by the

Hon'ble Supreme Court on scope of consideration of injunction

applications in a pending suit.

20.1. In Mahadeo Savlaram Shelke v. Pune Municipal

Corporation4, the Hon'ble Supreme Court noted,

"10. In Woodroffe's Law Relating to Injunctions, 2nd revised and enlarged Edn., 1992, at page 56 in para 30.01, it is stated that "an injunction will only be granted to prevent the breach of an obligation (that is a duty enforceable by law) existing in favour of the applicant who must have a personal interest in the matter. In the first place, therefore, an interference by injunction is founded on the existence of a legal right, an applicant must be able to show a fair prima facie case in support of the title which he asserts." (emphasis supplied)

20.2. In Kashi Math Samsthan and Anr. v. Srimad Sudhindra

Thirtha Swamy5, the Hon'ble Supreme Court dealt with this

aspect as under:

"16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted.

But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted." (emphasis supplied)

20.3. This view was relied upon across various decisions made by

High Courts and by this Court in P.Veerabhadrappa Setty v.

Polliki Chandrahas6.

20.4. In Dalpat Kumar v. Prahlad Singh7, the Hon'ble Supreme

Court held:

(1995) 3 SCC 33

(2010) 1 SCC 689

Andhra Pradesh High Court, C.M.A.Nos. 286 and 287 of 2013, PNR,J & PSS,J CMA No.535 of 2021

"4. Order 39 Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by Section 86(i)(b) of the Amending Act 104 of 1976 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151 CPC to grant ad interim injunction against dispossession. Rule 1 primarily concerned with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court, on exercise of the power of granting ad interim injunction, is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.

5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would

(1992) 1 SCC 719 PNR,J & PSS,J CMA No.535 of 2021

be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit." (emphasis supplied)

20.5. In Nagorao v. Nagpur Improvement Trust8, the Hon'ble

Court held as under:

"12. In the case before hand we have no words to express as to illegality committed by the learned Judge in passing interim order directing parties to maintain status quo. We have observed that the learned Judge has not assigned any reason before passing such order. The objectional fact is that order of status quo came to be passed though the Judge found that prima facie case is not made out. What we found is that the Judge has passed the order with utter disregard of the mandate under Rule 3 of Order XXXIX of Civil Procedure Code and established principles set out by the Apex Court and the High Court.

Even though status quo and injunction are not identical, the primary purpose of an injunction is to provide preventive relief as seen in status quo orders, and as such status quo orders should not be granted where there is no prima facie case. In an order for status quo, Court should specify context in which or condition subject to which such status quo direction is given. The civil court in the I.A. after observing that a prima facie case was not established by the respondents, considered the balance of convenience principle. As discussed in the beginning of this note, the court found that there was high probability of the nature of the suit schedule property changing by the time of the disposal of the suit. The court noted that, "If interim injunction is rejected and the correction of the suit schedule property is given to the respondent, the respondent may undertake construction in the suit schedule property"... thereby causing irreparable injury to the party that is finally awarded title and possession."

20.6. In Prakash Singh v. State of Haryana : 2002 (4) Civil

L.J.71 (Punjab & Haryana High Court), it is said,

"Prima facie case does not mean that the plaintiff should have cent percent case which will in all probability succeed trial. Prima facie case means that the contentions which the plaintiff is raising, require consideration in merit and are not liable to be rejected summarily."

(emphasis supplied)

20.7. In Zenit Mataplast (P) Ltd. v. State of Maharashtra9, the

Supreme Court discussed this issue at length,

"32. In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. [(1999) 7 SCC 1 : AIR 1999 SC 3105] this Court observed that the other considerations which ought to weigh with the

2001 SCC Online Bom 177

(2009) 10 SCC 388 PNR,J & PSS,J CMA No.535 of 2021

court hearing the application or petition for the grant of injunctions are as below: (SCC p. 14, para 24):

"24. (i) extent of damages being an adequate remedy;

(ii) protect the plaintiff's interest for violation of his rights though, however, having regard to the injury that may be suffered by the defendants by reason therefor;

(iii) the court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the other's;

(iv) no fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case--the relief being kept flexible;

(v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case;

(vi) balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant;

(vii) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise."

33. In Dalpat Kumar v. Prahlad Singh [(1992) 1 SCC 719 : AIR 1993 SC 276] the Supreme Court explained the scope of the aforesaid material circumstances, but observed as under: (SCC p. 722, para 6)

"6. ... The phrases 'prima facie case', 'balance of convenience' and 'irreparable loss' are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. The facts are eloquent and speak for themselves. It is well nigh impossible to find from facts prima facie case and balance of convenience."

34. This Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527] held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39, Code of Civil Procedure.

36. In Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group[(2005) 5 SCC 61] this Court observed as under: (SCC p. 72, para 24) "24. The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed."

37. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he loses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss.

38. The delay in approaching the court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the court may PNR,J & PSS,J CMA No.535 of 2021

grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case."

(emphasis supplied)

21. It is important to note that pursuant to orders of this Court

in W.P.No.5049 of 2016 and in W.A.No.150 of 2021, plaintiffs filed

O.S.No.55 of 2021 seeking declaration of title and possession of

the suit schedule property. Interim injunction was sought pending

adjudication of this suit. Interim relief connotes urgency where the

petitioner fears an immediate or existing violation of his/her right

which would result in irreparable damage that he/she could not

recover in case the Court rules in their favour. An interference by

injunction is founded on the existence of a legal right [Mahadeo

Savlaram Shelke v. Pune Municipal Corporation : (1995) 3 SCC 33]. What

needs to be considered here is whether, while the right to the

property itself (title and possession) remains to be decided does

any form of right arise to the plaintiffs that warrants protection by

the Court.

22. On the aspect of making out prima facie case on title claim

by the State, the trial Court failed to appreciate the issue in right

perspective.

23. It is the assertion of plaintiffs that GLR entries disclose that

land in GLR Survey No.243, Secunderabad Cantonment Area is

Government land. Ex.P1 is extract from GLR. The extract discloses

that the land is classified as Class-B2 and the State Government is

the Landlord.

24. As held by Hon'ble Supreme Court, entries in GLR, prima

facie, is conclusive proof of title. On review of precedent decisions, PNR,J & PSS,J CMA No.535 of 2021

in Union of India vs. Robert Zomawla Street10, the Hon'ble

Supreme Court held as under:

"12. We have given our thoughtful consideration to the rival submissions and plea of Mr Parasaran that entries made in the GLR are the conclusive proof of title commends us and the decisions relied on clearly support his contention. In Ibrahim Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] , relying on the decision of Kamla Verma [Union of India v. Kamla Verma, (2010) 13 SCC 511 : (2010) 4 SCC (Civ) 802] and Chief Executive Officer v. Surendra Kumar Vakil [(1999) 3 SCC 555] , this Court has observed that: (Ibrahim Uddin case [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362], SCC pp. 180-81, para 83) "83. ... It is settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Administration Rules are conclusive evidence of title." We respectfully concur with this view." [emphasis suppled]

25. Further, in W.P.No.17768 of 1996, Wakf Board claimed that,

it has Acs.71.30 land spread over Survey Nos.8, 10, 12, 17, 33,

37, 41, 42, 54, 62, 88, 144 and 115 of Tirumalgiri and Lothukunta

villages and State Government was seeking to allot said land to

weaker sections. The stand of respondent State was that the land

in issue is in GLR Survey No.243 admeasuring Acs.119.34

belonging to the State. The Defence Estate Officer of the

Cantonment Board also confirmed that land in GLR Survey No.243

admeasuring Acs.119.34 is Government land and the State is the

Landlord. On due consideration, the writ petition was dismissed

(Ex.P.3). W.A.No.1297 of 1997 (Ex.P.4) was also dismissed

affirming the view of learned single Judge. However, Division

Bench granted liberty to the Wakf board to avail Civil law remedy.

26. Accordingly, Wakf Board filed O.S.No.121 of 1998 in the

Wakf Tribunal to grant decree of declaration that land to an extent

of Acs.210.00 guntas in Old Survey No.196 of Lothukunta, Hamlet

of Thirumalgiri village, is Wakf land. It was alleged that illegally

(2014) 6 SCC 707 PNR,J & PSS,J CMA No.535 of 2021

the State Government is claiming the said land as Government

land. It is asserted by the State that land claimed by the Wakf

Board is Government land located in Survey No.243 of

Cantonment area. Defence Estate Officer, who was 6th defendant,

in his written statement also asserted that land in GLR Survey

No.243 is Government land.

26.1. The Wakf Tribunal framed ten issues for consideration.

Issue No.2 is relevant for this case. It reads:

"2. Whether the suit land is a Government land having GLR No.243 situated at Lothukunta? "

26.2. On through assessment of evidence on record, the Wakf

Tribunal held that the suit property is not a registered Wakf

property but is a Government land having GLR No.243 situated at

Lothukunta (Ex.P.5).

27. In support of their claim, the plaintiffs marked

Ex.P-1 (Extract of GLR), Ex.P-2 (Part GLR sketch), Ex.P-7 (Joint

Inspection Report), Ex.P3 (judgment in W.P.No.17768 of 1996),

Ex.P4 (judgment in W.A.No.1297 of 1997), and Ex.P5 (judgment of

Wakf Tribunal). These documents, prima facie, support the title

claim of plaintiffs. The plaintiffs have discharged their initial

burden and have made out triable issues for adjudication.

28. While State asserts the title as per GLR entries and previous

litigation between the State and Wakf Board, the defendant asserts

title by referring to revenue records maintained by the State

Government. The defendant also asserts that entries in revenue

records are conclusive proof of title. Defendant traces title to land

in Survey No.1 and 2 of Lothukunta village back to pre-

PNR,J & PSS,J CMA No.535 of 2021

independence transactions and thereafter. The State also asserts

that the land claimed by defendant is not in GLR 243 of

Cantonment Area but is in different location, far away from GLR

243. The State relied on boundaries described in the documents of

the defendant and also report of the survey conducted by the State

authorities to buttress their contention. It is the forcible

submission of learned Advocate General that the DAGPA dated

15.10.2006 is a bogus document.

29. According to learned Advocate General, the source of title to

gain authority to execute DAGPA was shown as document No.2330

of 1955. This is not filed before the trial Court nor in this appeal.

As verified from records, said document does not concern the land

claimed by the defendant. He would submit that the DAGPA dated

15.10.2006 is a bogus document. On the contrary, it is the forcible

submission of learned senior counsel for defendant that the State

illegally included land in Sy.Nos.1 and 2 of Lothukunta in GLR

Sy.No.243. The defendant placed heavy reliance on entries in

revenue records and proceedings under the Land Acquisition Act,

1894, granting compensation on acquiring part of land in Sy.Nos.1

and 2 of Lothukunta village.

30. Therefore, issue of title claim of the State to the suit

schedule land; whether the land claimed by defendant is the land

belonging to the State and whether the land claimed by the State

and the defendant is one and the same are triable issues, require

leading of evidence and consideration in the suit.

31. Further, non availability of relevant revenue records

concerning Survey Nos.1 and 2 of Lothukunta village, prima facie, PNR,J & PSS,J CMA No.535 of 2021

can not have a bearing on suit schedule land. Therefore, in the

facts of this case, it cannot be said that plaintiffs have not made

out triable issues.

32. Ignoring the voluminous material placed on record,

erroneously the trial Court relied on the statement of plaintiffs that

comprehensive survey was ordered to resolve the dispute of

identification and demarcation of land, to hold that prima facie

case was not made out. The survey proposed may clinch the issue

of boundaries of land claimed by the State and the land claimed by

the defendant, but the decision of the State to conduct survey

cannot wipeout the title claim of the State on suit schedule land.

33. Heavy reliance is placed on the decision of learned single

Judge in W.P.No.5049 of 2016 to contend that plaintiffs have no

legal claim of title and that plaintiffs were mandated to handover

possession. It appears even the civil Court was swayed by this

assertion. In this appeal also, it is vehemently contended by the

learned senior counsel for defendant that the order of status quo

granted by trial Court is in violation of the directions issued in the

above decision. For the reasons noted above, we see no merit on

this assertion of the defendant.

34. At an interim stage any conclusion by the Court should not

have a bearing on the main merits of the suit. The trial Court erred

in recording in paragraph 6(i) that can prove prejudicial to the

rights of the plaintiffs as it concludes on main merits of the suit

subject. Even if such an observation is necessary for the purposes

of considering prima facie case, the trial Court ought to have stated

so, holding that it has no bearing on the adjudication in the suit.

PNR,J & PSS,J CMA No.535 of 2021

35. From the respective assertions of the plaintiffs and the

defendant, two aspects can be deduced. Firstly, while State asserts

ownership claim to Acs.40.00 guntas of land covered by the GLR

Sy.No.243 of Secunderabad Cantonment, defendant asserts title of

land to an extent of Acs.42.00 guntas in Sy.Nos.1 and 2 of

Lothkunta village. Secondly, while State asserts that the land

claimed by the defendant is far away from the location of the suit

schedule land and trying to encroach the Government land in

Sy.No.243, defendant asserts that the revenue records were

tampered to show as if Government has land in Sy.No.243 and

records were deliberately misplaced, encroaching into private land.

It is possible that both are right in asserting title to the respective

lands and in such an event, it can be a case of location of land.

These are matters requiring consideration during the course of

trial.

36. In this country, it is settled that law presumes possession

would go with title unless rebutted. Equally well settled that a

person in settled possession of property is entitled to retain it and

even a rightful owner can be injuncted from using force or taking

the law into his own hands.

36.1. In Rame Gowda v. M.Varadappa Naidu11, the Hon'ble

Supreme Court has authoritatively reiterated these principles :

"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. ... ... If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own

(2004) 1 SCC 769, PNR,J & PSS,J CMA No.535 of 2021

hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. ... ....

9. 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." (emphasis supplied)

36.2. In State of A.P. v. Star Bone Mill and Fertiliser

Company12, the Hon'ble Supreme Court held:

"21. ... ... ... The maxim "possession follows title" is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him."

(emphasis supplied)

37. From the pleadings in W.P.No.5049 of 2016 and the orders

of the learned single Judge in paragraph 117 it is apparent that

the plaintiffs are in possession of the land after orders were passed

in exercise of power under the Land Encroachment Act and

continued to be in possession. If possession by plaintiffs is

disputed then the defendant could have challenged the direction of

learned single Judge issued to the plaintiffs to handover

possession to defendant. The possession of suit schedule land by

the State may become illegal if State fails to establish its title

claim.

38. Even otherwise the defendant cannot seek to enter into

possession by dispossessing the State without following the due

process. So far the defendant is not successful to gain possession.

(2013) 9 SCC 319 PNR,J & PSS,J CMA No.535 of 2021

Meanwhile and unless the defendant secures possession, it cannot

undertake development activity. As possession is vested in the

State, it cannot therefore be said that the balance of convenience is

not in favour of the plaintiffs.

39. It appears, in view of the orders in W.A.No.150 of 2021,

institution of instant suit by the plaintiffs and granting of

injunction order, the defendant changed his track and started

asserting as if he is in possession and that his possession should

not be disturbed by the plaintiffs.

40. Defendant instituted O.S.No.52 of 2020 in the Court of XII

Additional Chief Judge, City Civil Court, Secunderabad, praying to

grant perpetual injunction restraining the plaintiffs from

interfering with peaceful possession and enjoyment of the land in

Sy.No.192 of Lothkunta village, Malkajgiri Mandal, Ranga Reddy

district. Defendant filed I.A.No.553 of 2020 under Order XXXIX

Rules 1 and 2 of CPC to grant temporary injunction restraining the

plaintiffs from interfering with the alleged peaceful possession and

enjoyment of the land. The trial Court ordered urgent notice on

02.12.2020 with a direction to list the matter on 09.12.2020. On

the ground that the Presiding Officer was on leave, it was

adjourned to 29.01.2021. Challenging the adjournment, defendant

filed C.R.P.No.1305 of 2020. By order dated 18.12.2020, this

Court directed the trial Court to decide I.A.No.553 of 2020 on or

before 07.01.2021 after hearing both sides or even granting

ex parte interim order. However, trial Court having noticed that

except one document all other documents filed by the defendant

were only photocopies, but not originals, called upon the defendant PNR,J & PSS,J CMA No.535 of 2021

to comply with Section 65 of the Indian Evidence Act. Aggrieved

thereby, defendant filed C.M.A.No.524 of 2020.

41. Learned single Judge while holding that the order directing

the defendant to comply with Section 65 of the Evidence Act is not

appealable under Order XLIII Rule 1 of CPC, in exercise of power

under Article 227 of the Constitution of India treated the Civil

Miscellaneous Appeal as Civil Revision and disposed of along with

W.P.No.5049 of 2016. This Court directed to take note of the

developments recorded in the order and to pass orders in

I.A.No.553 of 2020 within two weeks from the date of receipt of

copy of the order. It appears, said application is pending

consideration of the trial Court.

42. After the injunction order granted by the trial Court against

which the instant appeal is preferred, defendant filed

W.P.No.25834 of 2021 alleging that the State is interfering in its

possession. Based on the assertions of defendant, learned single

Judge granted interim order on 20.10.2021. Aggrieved thereby,

State preferred W.A.No.598 of 2021. The Hon'ble Division Bench

took note of the status quo order granted by the trial Court in the

instant suit, stayed the interim order of the learned single Judge

and while disposing of the writ appeal, directed the parties to

appear before the learned single Judge. The relevant portion of the

order in W.A.No.598 of 2021 reads as under:

"Learned Government Advocate has argued before this Court that once the order of status quo is granted and the civil suit is pending, there was no occasion for passing any order and M/s.Shantha Sriram Constructions Private Limited was having a liberty to approach the trial Court in case the order of injunction was violated and to file appropriate interlocutory application in the pending civil suit. He has been able to make out a prima facie case to stay the order dated 20.10.2021 passed by the learned single Judge in W.P.no.25834 of 2021."

PNR,J & PSS,J CMA No.535 of 2021

43. It is thus apparent that defendant is keen to gain back

possession by any means and on securing the possession to

undertake construction of buildings.

44. In an injunction suit first requirement is title followed by

possession. In an injunction suit person in possession is entitled

to injunction. The lower Court considered this aspect and having

regard to the peculiar facts, adopted a middle course to balance

equities on both parties.

45. The lower Court noted the intention of both parties on how

to deal with the disputed property. While plaintiffs clarified their

intention to use the land for slum dwellers rehabilitation the

defendant already has placed on record a development agreement.

The Court also noted the petitioners' submission of a fresh survey

being undertaken to identify the disputed location of the suit

schedule property. Accordingly, the lower Court saw it fit to

protect the suit land as unaltered till final disposal of the suit and

ordered status quo to be maintained by both parties. We are of the

opinion that lower Court is right in adopting such course.

46. We also see no merit in the submission of learned senior

counsel on reviving the direction of learned single Judge after four

weeks time granted by the Division Bench in W.A.No.150 of 2021

expired. The time granted in the order of the Division Bench is for

the State to avail the civil law remedy. Once such a remedy is

availed and an application is filed to grant temporary injunction,

the trial Court is within its competence to pass appropriate orders.

The observations of learned single Judge in paragraph-118 of PNR,J & PSS,J CMA No.535 of 2021

judgment in W.P.No.5049 of 2016 and direction of Division Bench

in W.A.No.150 of 2021 make this aspect amply clear.

47. On independent consideration of the matter and for the

reasons recorded above, we uphold the status quo order passed by

the trial Court in I.A.No.955 of 2021 in O.S.No.55 of 2021 on the

file of I Additional Chief Judge, City Civil Court at Hyderabad and

the Civil Miscellaneous Appeal is dismissed.

48. We make it clear that we have not expressed opinion on

merits. We have considered submissions of learned Advocate

General and the learned senior counsel to test the validity of the

interlocutory order passed by the trial Court. The observations

made herein are only to consider this appeal and can have no

bearing on the respective claims in the suit.

49. Pending miscellaneous petitions if any shall stand closed.

__________________________ JUSTICE P.NAVEEN RAO

__________________________ JUSTICE P.SREE SUDHA

Date:18.02.2022 KKM/tvk PNR,J & PSS,J CMA No.535 of 2021

HONOURABLE SRI JUSTICE P. NAVEEN RAO & HONOURABLE SMT JUSTICE P SREE SUDHA

CIVIL MISCELLANEOUS APPEAL NO.535 OF 2021

Date:18.02.2022 kkm