Mir Mohammed All Khan And Another vs Haya Ahmed Lahmadi And 11 Others
2023 Latest Caselaw 116 Tel

              HONOURABLE SRI JUSTICE P.NAVEEN RAO

             CIVIL REVISION PETITION NO.1940 OF 2022

                            Date: 06.01.2023
Between:

Mir Mohammed Ali Khan,
s/o. Mir Jahangir Ali Khan,
Occu:Business, Aged about 46 years,
R/o.H.No.16-2-841, Ameen Colony,
Saidabad, Hyderabad and another.
                                               ..... Petitioners/appellants/
                                                      Respondents 1 & 2/
                                                          Defendants 1 & 2
           and

Haya Ahmed Lahmadi,
w/o.Saleh Bin Ali and daughter of
Ahmed Bin Saleh Lahmadi,
Aged about 83 years, occu:Household,
Rep.by her attorney Saleh Bin Ali,
s/o. Ali Bin Saleh, resident in portion
of 22-8-28 to 36, Chatta Bazar,
Hyderabad.
                                                    .....Respondent no.1/
                                                       Respondent no.1/
                                                      petitioner/plaintiff
Sultan Ahmed Lahmadi
s/o. late Ahmed Bin Salah Lahmadi,
occu: Business,r/o.22-8-32,
Chatta Bazar, Hyderabad and others.
                                                  ....respondents 2 to 12/
                                                   Respondents 2 to 12/
                                                   Respondents 3 to 13/
                                                      Defendants 3 to 13




This Court made the following:
                                      2

                HONOURABLE SRI JUSTICE P.NAVEEN RAO

                CIVIL REVISION PETITION NO.1940 OF 2022

ORDER:

Facts to the extent relevant are noted hereunder:

1.1. The respondent Nos.1 to 7 and mother of respondent Nos.8 to 11

and respondent no.12 were the owners of house property bearing

Municipal No.22-8-28 to 36 to an extent of 1685 square yards, situated at

Chatta Bazar, Hyderabad. The respondent Nos.1 to 7 and mother of

respondent nos.8 to 11 and respondent no.12 herein have executed an

agreement of sale dated 15.11.2017 in favour of petitioners in respect of

above mentioned house property. While so, respondent nos.2 to 12 have

executed Ex.P4 registered sale deed dated 31.01.2022 bearing document

no.354 of 2022 in favour of petitioners herein in respect of above

mentioned house property for an extent of 1531.82 square yards out of

1685 square yards. The remaining extent in the agreement of sale dated

15.11.2017 is 153.18 square yards that belongs to respondent no.1.

1.2. The petitioners herein have instituted O.S.No.143 of 2022 on the

file of II Additional Chief Judge, City Civil Courts, Hyderabad to grant

decree of specific performance of execution of sale deed for remaining

property forming part of agreement of sale dated 15.11.2017 and other

reliefs against respondent no.1 herein and the same is pending

adjudication.

1.3. O.S.No.548 of 2022 is filed by the first respondent on the file of VIII

Junior Civil Judge, City Civil Court at Hyderabad, praying (i) to declare

that the alleged sale deed bearing document no.354 of 2022 dated

31.01.2022 is null and void, not a valid document and it is not binding on

the plaintiff to the extent of common passage i.e., the schedule 'C'

property; (ii) to grant relief of perpetual injunction restraining all the

defendants, its servants, agents, employees, representatives or any other

person claiming under them etc. from obstructing the passage having

main entrance exists on the western side of the registered partition deed

dated 25.10.2016 or schedule 'C' property; (iii) to grant relief of perpetual

injunction restraining the defendants, their men from interference in the

plaintiff's possession in the schedule 'B' property by interfering with the

structures or construction; (iv) awarding costs of this suit to the plaintiff;

and (v) and to pass such other and further orders as may be deem just

and proper in the circumstances of the case and in the interests of

justice.

2. In the said O.S., respondent no.1 filed I.A.No.84 of 2022 praying to

restrain the respondents or persons representing them from obstructing

the passage claimed as schedule 'C' property of the registered partition

deed dated 25.10.2016.

3. By order dated 04.04.2022, the trial Court allowed the I.A., granting

temporary injunction in favour of the respondent no.1 restraining the

petitioners, its servants, agents, employees, representatives or any other

person claiming under them etc., from obstructing the passage schedule

'C' property i.e., the common passage of the registered partition deed

dated 25.10.2016 with specified boundaries as mentioned in petition till

the disposal of the main suit.

4. Aggrieved thereby, petitioners preferred CMA No.47 of 2022 before

the lower Appellate Court. The lower Appellate Court dismissed the CMA

by order dated 11.08.2022. Aggrieved thereby, this Revision is filed.

5. Heard learned counsel Sri R.K.Chitta for the petitioners and learned

counsel Sri Mohd. Ilyas for the respondent No.1.

6. Extensive submissions are made on both sides, filed voluminous

record and relied upon precedent decisions in support of their

submissions. On behalf of petitioners learned counsel also filed a

synopsis running into 14 pages.

7. Learned counsel for petitioners made the following submissions:

7.1. There is no schedule 'C' mentioned in registered partition deed

dated 25.10.2016. The relief sought is only imaginary and unidentified

property.

7.2. The Court below failed to appreciate the submissions of the

petitioners and misdirected in granting relief to respondent no.1.

7.3. The trial Court and first appellate Court erred in not appreciating

that O.S.No.548 of 2022 and I.A.No.84 of 2022 are not maintainable. As

the plaintiff failed to seek cancellation of agreement of sale dated

15.11.2017 and recovery of possession in respect of schedule 'C' property

mentioned in the plaint, as respondent no.1 herein is not in possession of

the same as on the date of institution of the suit, the suit for declaration

and perpetual injunction without seeking relief of possession is not

maintainable. When respondent no.1 was not in a possession of Schedule

'C' property, as on the date of institution of the suit, she is not entitled to

the relief of temporary injunction. In spite of specific assertions

supported by precedent decisions that suit itself is not maintainable, the

trial Court and First Appellate Court failed to deal with the contentions.

Failure to consider the assertions and question of fact is not taken into

consideration, it amounts to jurisdictional error and is liable to be

interfered in by the High Court in exercise of revisional jurisdiction under

Article 227 of the Constitution of India.

7.4. If final relief in the suit cannot be granted temporary relief cannot

be granted.

7.5. Further both Courts below failed to appreciate that respondent

no.1 did not seek relief of ingress and egress from schedule 'C' property

to schedule 'B' property mentioned in the plaint. The trial Court erred in

granting relief not even sought by respondent no.1.

7.6. Respondent no.1 failed to make out a prima facie case and as suit

itself is not maintainable balance of convenience is not in favour of

respondent no.1.

7.7. The common passage shown in Ex.P-1 partition deed was not

allotted to respondent no.1. At any rate, as petitioners are not party to

the said partition deed, it is not binding on them. Further, by virtue of

Ex.P4 registered sale deed dated 31.1.2022 except 153.18 sq yards

claimed by respondent no.1, 1531.82 sq yards was sold to petitioners.

8. Per contra, learned counsel for first respondent submits that

common passage is not alienable. From the reading of partition deed and

schedule "B" it is clear that possession in favour of first respondent was

confirmed and continues to be in possession. Clause 4 of the Partition

Deed also require parties not to cause obstruction to one another. Merely

because it is not mentioned in Ex.P-4 does not wipe out common area.

8.1. By placing reliance on Section 48 of Transfer of Property Act, he

would submit that first respondent has priority of right over common

passage as against terms of sale deed. Common passage cannot be

portioned and alienated. Further, agreement of sale was cancelled by the

first respondent.

8.2. He would submit that there were material alterations in the

agreement of sale regarding document and cannot be enforced. In sale

deed also become a void document. In support of said contention he has

relied on decision of Hon'ble Supreme Court in Seth Loonkaran Sethia

v. Ivan E. John1.

8.3. He would submit that first respondent never gave up claim on

common passage. For that matter, all other respondents also till sale

deed was executed by them.

8.4. He would further submit that in Ex.P-4 the area belonging to first

respondent was excluded and sale deed was confined to shares belonging

to respondents 2 to 12. Ex.P-4 superceeds agreement of sale.

8.5. He would further submits that common passage area is described

as Schedule "C" property only for convenience.

8.6. He would submit that in the caveat filed by petitioner, petitioner

admitted existence of common passage and therefore now cannot turn

around.

9. In reply, learned counsel for petitioners submit that Order VII Rule

3 of CPC was complied with.

9.1. He would submit that specific boundaries stated in trial Court order

is contrary to record and prayed in I.A.No.84 of 2022. Further, no relief of

ingress aggress sought.

AIR 1977 SCC 336

10. Respondents inherited Schedule 'A' property from their common

ancestor. On 25.10.2016 the said property was partitioned by metes and

bounds amongst the respondents by way of partition deed marked as

Ex.P.1. Schedule 'B' property was allotted to 1st respondent. She claims

that along with schedule 'B' property she has a share in undivided

property in the common areas which is referred to as Schedule 'C'

property.

11. Petitioners and respondents entered into agreement of sale marked

as Ex.R.1 to sell the entire property. However, sale deed was executed

only by respondents 2 to 12 in favour of petitioners to the extent of their

share as described in plaint schedule 'A' property, leaving the schedule

'B' property of the 1st respondent. However, it included common passage,

i.e., plaint schedule 'C' property. By legal notice dated 24.01.2022

marked as Ex.R.1 agreement of sale was revoked. The 1st respondent

instituted O.S.No.548 of 2022 praying to declare the registered sale deed

null and void and not binding on the plaintiff to the extent of common

passage. In the said suit plaintiff filed I.A.No.84 of 2022 praying to grant

injunction restraining respondents from obstructing the passage viz., the

schedule 'C' property of the registered partition deed dated 25.10.2016.

12. On due consideration of evidence and the submissions of learned

counsel the trial Judge observed that property bearing Municipal Number

22-8-28 to 36 contains some area still common and is not divided and not

supported and is therefore a joint property of all co-owners. The trial

Judge further observed that registered sale deed (Ex.P.4) is borne out of

registered partition deed (Ex.P.1) and therefore, Ex.P.4 cannot go beyond

Ex.P.1. By placing reliance on Section 48 of the Transfer of Property Act,

1882, learned trial Judge upheld the contention of 1st respondent that 1st

respondent's right to use common passage is much prior to Ex.P.4 and

cannot be affected. Learned trial Judge noted in paragraph No.30 of the

order the issue regarding consideration in the main suit on common

passage aspect. In view thereof, and having satisfied that the three

ingredients to grant injunction are fulfilled, granted injunction restraining

the respondents from obstructing the common passage, marked as

Schedule 'C' property till the disposal of the suit.

13. Aggrieved thereby the petitioners preferred C.M.A.No.47 of 2022

before the XXVI Additional Chief Judge. The learned first appellate Court

thoroughly analyzed evidence brought on record to test whether the trail

Judge erred in exercising his discretion to grant temporary injunction to

1st respondent.

14. On analyzing the evidence, the 1st appellate Court opined that prima

facie, it cannot be said that common area and common passage are

allotted to parties individually in proportion to their share to the exclusion

of each other or that the common area is liable to be sold along with their

individual shares. Learned Judge also opined that prima facie common

passage was shown to be in existence and at this stage it cannot be

ascertained that common passage was also divided and allotted among

co-sharers. The further submission of petitioners that the access to 1st

respondent to her property is not completely blocked was not found

favour with the first appellate Court. The first appellate Court affirmed

the temporary injunction granted by the trial Court. Hence, this Revision.

15. I have carefully considered respective submissions and the

precedent decisions cited at the bar.

16. At the threshold it is to be noted that this is a revision under Article

227 of the Constitution of India. The scope of revision is limited. In

exercise of revisional jurisdiction Court cannot act as a Court of appeal,

enter into merits of the findings and upset the decisions of the lower

Courts. It is intended to keep the Courts subordinate to it within the

bounds of their authority, not to cross Laxmana Rekha. It cannot

interfere to correct mere errors of law or fact or just because another view

is possible. It can interfere, if there is patent perversity, gross or manifest

failure of justice or basic principle of natural justice, are breached. The

power under Article 227 of the Constitution of India is discretionary.

17. In Shalini Shyam Shetty and another v. Rajendra Shankar

Patil2, the Hon'ble Supreme Court has extensively discussed the scope of

supervisory jurisdiction of the High Courts under Article 227, by referring

(2010) 8 SCC 329

to previous leading judgments on the subject and formulated few

principles, as extracted here under:

"48. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed ex debito justitiae or as a matter of right. But in cases where the High Court exercises its jurisdiction under Article 227, such exercise is entirely discretionary and no person can claim it as a matter of right. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all the High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restraint on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [AIR 1954 SC 215] and the principles in Waryam Singh [AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh [AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".

(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court." (emphasis supplied)

18. The suit is filed to grant decree declaring the registered sale deed

null and void and not binding on 1st respondent to the extent of common

passage. In the said suit, 1st respondent filed I.A.No.83 of 2022 to grant

injunction restraining respondents from obstructing the passage marked

as schedule 'C' property in the registered partition deed.

19. There was serious contest by petitioners against granting

injunction. Petitioners disputed claim of possession by 1st respondent.

The trial Court analyzed the evidence brought forth by the parties and

precedent decisions. The trial Court having found that the 1st respondent

has made out prima facie case, established balance of convenience and

also established that if injunction is not granted, grave prejudice and

irreparable injury would be caused, granted the injunction. On appeal, 1st

appellate court also satisfied that the 1st respondent complied the three

ingredients to grant injunction.

20. The genesis for Ex.P.4 sale deed is Ex.P.1 where under shares are

allotted to shareholders as per their entitlement, including 1st respondent.

Though 1st respondent was also a party to agreement of sale but has not

joined with other shareholders of Ex.P.1 to execute registered sale deed

(Ex.P.4). Therefore, the extent of land fallen to her share remains intact

with her.

21. Prima facie, the terms of partition deed (Ex.P1) disclose that

possession vests in the respective parties to the deed as can be seen from

recitals in paragraphs-1 and 4 and entries in the schedules appended to

the deed including all rights of easement, aggress and ingress. Clause-4

emphatically states that parties should not cause obstruction or

hindrance in carrying construction by or with the co-sharer. In the

schedule, it is specifically mentioned about allotment of share in the land

and also the common area. This clearly implies that all the sharers are

entitled to enjoy the common area.

22. It is contended that agreement of sale is not challenged in the suit,

whereas suit for specific performance is filed against 1st respondent.

Further, the issue of validity of agreement of sale was considered by the

1st appellate Court. It is contended that finding in sub-paras 'a' and 'b' of

paragraph-19 are self-contradictory. Further, when it is held that all

issues raised are triable issues it cannot be said that prima facie case is

made out. First respondent is not in possession and has not sought

recovery of possession and prayer in main suit cannot be granted in an

interlocutory application.

23. There was application of mind by the trial Court to the contentions

urged by rival parties, the issue involved and having satisfied that a case

is made out to grant discretionary relief, granted injunction. Trial Court

has not committed error in granting the discretionary relief so also the

first appellate court. Several submissions urged by learned counsel go to

the root of the dispute involved in the suit. Those submissions require

consideration based on the evidence brought forth by the parties. In both

orders, the Courts below have thoroughly analyzed the submissions and

issues raised, answered them to grant injunction to 1st respondent.

24. It is not a case of patent illegality, nor the decisions of Courts below

be called as perverse or amounting to manifest failure of justice for this

Court to exercise its jurisdiction under Article 227 of the Constitution of

India, and interfere with the said decisions.

25. The Civil Revision Petition is dismissed. No costs. Miscellaneous

applications, if any pending stand closed. It is made clear that there is no

expression of opinion on merits and parties are entitled to lead evidence

and urge their submissions in the suit.

__________________ P NAVEEN RAO,J DATE:06-01-2023 TVK/ kkm

HONOURABLE SRI JUSTICE P.NAVEEN RAO

CIVIL REVISION PETITION NO.1940 OF 2022

Date: 06.01.2023

Tvk/kkm