Telangana High Court

Peddarapu Sudha vs Ubba Nagendra Prasad on 8 September, 2023

Bench: K.Lakshman

            HON'BLE SRI JUSTICE K. LAKSHMAN

         CIVIL REVISION PETITION No.1376 OF 2023
ORDER:

Heard Mr. Mummineni Srinivasa Rao, learned counsel

representing Mr. S. Pradeep Kumar, learned counsel for the petitioner

and Mr. Krishna Kishore Kovvuri, learned counsel for the respondent.

2. Assailing the order dated 28.02.2023 in I.A. No.63 of 2022

in O.S. No.62 of 2022 passed by learned Sub-Divisional Magistrate

and Special Assistant Agent to Government, Mobile Court at

Bhadrachalam, the present Civil Revision Petition is filed.

3. The respondent herein is the plaintiff in O.S. No.62 of 2022,

while the petitioner herein is the defendant. The respondent herein

filed the said suit against the petitioner herein seeking perpetual

injunction in respect of the subject property i.e., House property to an

extent of Ac.00-03 cents bearing H.No.4-60 having asbestos roofed

house with single portion three (03) rooms, situated at Kaliveru

Revenue Village, Charla Revenue Mandal, Bhadradri - Kothagudem

District, which is hereinafter referred to as 'the subject property'. He

has also filed I.A. No.53 of 2022 seeking temporary injunction

restraining the petitioner herein and his agents etc., from interfering

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with his peaceful possession and enjoyment over the subject property

by contending as under:

i. The respondent herein belongs to ST-Koya Community;

ii. He is the absolute owner and possessor of the subject property

having acquired by way of succession from his father, namely

Ubba Muthaiah;

iii. His forefathers were the original owners and possessors of the

subject property;

iv. Originally, his forefathers donated the subject property long

back to the Village development purpose i.e., drinking water

tank. Recently, the said water tank life was expired and got

demolished. After demolition, the house site is kept vacant and

did not use for any purpose;

v. Then, the father of the respondent approached the Gram

Panchayat Authorities and requested them to return the vacant

house site for living purpose. On 09.03.2019, the Village Gram

Panchayat Authorities, Kaliveru, conducted Grama Sabha and

made resolution in favour of the father of the respondent and,

thereafter, re-allotted the same to his father. Pursuant to the

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said re-allotment, the father of the respondent came into the

possession of the subject property;

vi. Later, the respondent made construction over the subject

property. Then the Gram Panchayat Authorities got issued

house tax receipts in his favour. Thereafter, the subject

property was registered in favour of the respondent as H.No.4-

60 in Grama Panchayat records;

vii. Taking advantage of the respondent being economically poor

and innocence, the petitioner herein, who is a stranger,

developed greedy eye on the subject property, with an active

support of unsocial elements of the Village, is trying to interfere

with his possession and enjoyment. On 01.03.2022, the

petitioner with the help of henchmen tried to obstruct the

agricultural operations of the respondent and tried to grab the

subject property, but due to timely resistance of the respondent,

the petitioner could not succeed in their attempts.

4. The petitioner herein filed counter refuting the allegations

made in the affidavit in support of the temporary injunction petition.

The petitioner contended as follows:

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i) The petitioner herein is the owner and possessor of the house

bearing No.4-13/A, which is located in Acs.0.13½ cents,

situated at Kaliveru Village, Charla Mandal, Bhadradri -

Kothagudem District;

ii) Originally, the petitioner purchased the schedule property

through a sale deed dated 21.02.2018 for Rs.1,00,000/- from

Ubba Muthaiah. After receiving the sale consideration amount,

the Vendor handed over the possession to her;

iii) The petitioner constructed a house in the subject land and the

same was recorded in Gram Panchayat records of Peddipalli

Gram Panchayat and allotted the aforesaid house number. The

petitioner has been paying house tax to the Gram Panchayat

regularly without fail. Thus, the petitioner is in possession and

enjoyment of the subject property without any interruption from

anyone;

iv) The petitioner filed a suit for injunction against the respondent

and his family members vide O.S. No.21 of 2022 and also filed

petition vide I.A. No.19 of 2022 seeking temporary injunction.

The respondent having appeared through his counsel in the said

suit, did not represent the matter and, therefore, temporary

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injunction was granted in her favour. Suppressing the said

facts, the respondent filed the present suit by showing wrong

boundaries;

v) The respondent is no way concerned with the subject property.

He is having political background and under such influence, the

respondent is trying to trespass into the subject property

belonging to the petitioner;

vi) The respondent showing house number which is located nearly

1/4th kilometer distance to the subject property filed the present

suit as if it belongs to him;

vii) The petitioner denied that the father of the respondent was re-

allotted the subject property by the Gram Panchayat Authorities

after expiry of water tank life.

5. After hearing both sides, the learned Sub-Divisional

Magistrate vide order dated 28.02.2023 granted temporary injunction

against the petitioner herein. Challenging the same, the petitioner

filed the present revision.

6. Learned counsel for the petitioner would contend that

learned Sub-Divisional Magistrate did not give any reason while

granting temporary injunction. Any order that was passed without any

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reasons would be an illegal order. Without considering the material

including documentary evidence and the above said aspects, learned

Sub-Divisional Magistrate passed the impugned order. In support of

the same, learned counsel relied upon the decision in Shiv Kumar

Chadha v. Municipal Corporation of Delhi 1.

7. On the other hand, learned counsel for the respondent would

contend that the learned Magistrate after considering the entire

material on record passed the order. The petitioner being a non-tribe

cannot purchase the property from schedule tribe. Further, the

document on which the petitioner relies is an unregistered document

and the same is inadmissible in evidence. Therefore, grant of H.No.4-

13/A (if any) is illegal and there are no supporting mutation

proceedings. The petitioner's house number is 4-13/A, whereas, the

respondent's house number is 4-60. The house tax receipts filed by

the petitioner do not co-relate with the alleged sale deed dated

21.02.2018. The petitioner failed to produce any house plan,

permission from competent authority to show that he constructed the

house over the subject property. The decree obtained by the petitioner

in O.S. No.21 of 2022 is in respect of the house bearing No.4-13/A in

. (1993) 3 SCC 161

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an extent of Ac.0.13½ cents. The said decree is no way concerned

with the subject property. In view of the same, he sought to dismiss

the revision.

8. In view of the aforesaid rival submissions, this Court has to

see whether the impugned order passed by the learned Magistrate is

on consideration of the entire material and contentions of the parties

and procedure laid down under law.

9. Learned Sub-Divisional Magistrate after hearing both sides

passed the impugned order observing as under:

"On perusal of the material papers available on record filed by both of them and heard arguments of both counsel, this court concluded that the petitioner/plaintiff is in possession of the schedule property in support of his possession of the schedule property in support of his possession the petitioner/plaintiff filed Xerox copy of house tax receipts in favour of plaintiff for the years 2020- 2021, 2021-22, Xerox copy of Gram Panchayat Kaliveru Gramasabha resolution dt: 09-03-2017, the respondent with regard to the scheduled property no valid documents were filed and also failed to prove her possession, the documents which were filed by the respondent was not concerned with the suit scheduled property i.e.,

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Xerox copy of house tax receipts from 2017 to 2022, Xerox copy of sale deed dt.21.02.18, Xerox copy of I.A.19/22 in O.S.No.21/22, Xerox copy of injunction order in I.A.No.19/22 in O.S.No.21/2022, Xerox of certificate issued by Secretary G.P. Kaliveru. The plaintiff established his possession and proved prima facie case and balance of convenience is in his favour, as such in this case the petitioner/plaintiff is entitle for Injunction order.

In view of the above circumstances this court is hereby granted injunction order in I.A.No.63/2022 in O.S.No.62/2022 in favour of the petitioner and to restrain the respondent, her henchmen, servants, agents or anybody on her behalf in any way interfering with the peaceful possession and enjoyment of the suit schedule property."

10. With the aforesaid observations, the learned Sub-Divisional

Magistrate granted temporary injunction in favour of the respondent.

The learned Magistrate did not consider the contentions raised by both

sides properly. There are no reasons assigned by him while

considering the injunction application. Further, the learned Magistrate

neither considered the material available on record, nor marked them

while deciding an injunction petition.

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11. In Chernam Chinna Balmasiah v. State Teachers Union,

Telangana 2, this Court held as under:

"This Court, having given conscious thought, had observed that there is some ambiguity arising on account of the observations of the Division Bench in T. Bhopal Reddy v. K.R. Lakshmi Bai [1998 (1) ALD 770 (DB), wherein it is not categorically held that it is mandatory for the documents to be marked. On further examination, it was found that there is yet another judgment of the Division Bench of this Court in C.M.A.Nos. 527, 564 and 607 of 2017, dated 21.07.2017, which, while holding that the Rule regarding marking of documents in terms of the Civil Rules of Practice be adhered to, directed the Registry to issue a Circular to the subordinate courts to mark the documents filed by the parties to the Interlocutory Applications before deciding such Applications. In this context, Rules 51, 60 and 115 of the Civil Rules of Practice may be noted. While Rule 115 deals with marking of documents admitted in evidence, which can be done only at the time of trial, Rule 51 read with Rule 60 caters to the need of the marking of documents for the purpose of disposal of the Interlocutory Applications. Rules 51 and 60, which are more relevant for the purpose of dealing with the issue in the present Revision, are extracted as under:

" 51. Documents referred to in affidavit:-

. CRP No.1234 of 2020, decided on 28.07.2021

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Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No.16 which shall be signed by the officer before whom the affidavit is taken.

60. Proof of facts by affidavit:-

Any fact required to be proved upon an interlocutory proceeding shall unless otherwise provided by these rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment."

12. In the light of the above discussion and the principle laid

down in the aforesaid decision, in the case on hand, since no

documents were marked which amounts to failure to comply with

Rule - 51 of the Civil Rules of Practice, the present Civil Revision

Petition is allowed setting aside the impugned order dated 28.02.2023

in I.A. No.63 of 2022 in O.S. No.62 of 2022 passed by learned Sub-

Divisional Magistrate and Special Assistant Agent to Government,

Mobile Court at Bhadrachalam. The matter is remanded back with a

direction to consider the said I.A. No.63 of 2022 and pass orders

afresh by marking the documents as exhibits and pass appropriate

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orders strictly in accordance with law by putting the petitioner and the