Telangana High Court

Matteda Mogili vs Namindla Rajaiah on 26 September, 2023

Bench: G.Radha Rani

    THE HONOURABLE Dr. JUSTICE G. RADHA RANI
                          I.A. No.2 of 2023
                              IN/AND
        CIVIL REVISION PETITION No.1678 of 2023

ORDER:

This Civil Revision Petition is filed by the petitioner-

appellant-plaintiff aggrieved by the order dated 17.04.2023 passed

in CMA No.1 of 2023 on the file of the Chairman, Land Reforms

Appellate Tribunal cum I-Additional District Judge,

Hanumakonda, confirming the order dated 27.12.2022 passed in

I.A. No.246 of 2022 in O.S. No.4294 of 2022 on the file of IV

Additional Junior Civil Judge, Hanumakonda.

2. Heard the learned counsel for the revision petitioner-

appellant-plaintiff and the learned counsel for the respondents-

respondents-defendants.

3. The learned counsel for the petitioner submitted that the

petitioner filed a suit for perpetual injunction in respect of the suit

schedule property i.e. agricultural land in Sy. No.564/A/1 to an

extent of Ac.0.32 gts., Sy.No.564/A/2 to an extent of Ac.1.35 gts.,

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

Sy.No.546/A/2 to an extent of Ac.0.10 ½ gts., and Sy.No.565/1/2/2

to an extent of Ac.0.20 gts., in total an extent of Acs.3.17 ½ gts., in

one compact block situated at Bheemaram village of Hasanparthy

Mandal, Hanumakonda District, and also filed I.A. No.246 of 2022

seeking temporary injunction. The trial court i.e. the IV Additional

Junior Civil Judge cum IV Additional Judicial Magistrate of First

Class, Hanumakonda disposed of the matter on merits dismissing

the I.A. observing that the petitioner-plaintiff failed to establish

prima facie possession and enjoyment over the schedule property.

Aggrieved by the said order dated 27.12.2022 in I.A. No.246 of

2022 in O.S. No.4294 of 2022, the petitioner-plaintiff preferred

CMA No.1 of 2023. The said CMA was heard by the Chairman,

Land Reforms Appellate Tribunal cum I-Additional District Judge,

Hanumakonda and vide order dated 17.04.2023, the CMA was also

dismissed on merits.

4. Aggrieved by the said dismissal of I.A., and CMA by

both the courts below, the petitioner-plaintiff preferred this revision

contending that the courts below proceeded on the assumption that

the petitioner failed to prove his possession over the suit schedule

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

property as his pattedar pass book and title were cancelled by the

Tahsildar and the said order was upheld by the Special Tribunal,

but the petitioner challenged the order passed by the Special

Tribunal by filing WP No.19458 of 2021 and in the said writ

petition an interim order was passed by this Court in I.A.No.1 of

2022 directing the respondents to maintain status quo obtaining as

on the date of order. The courts below also failed to appreciate that

the petitioner filed WP No.26789 of 2022 seeking to issue digital

passbook in respect of land of an extent of Ac.0.32 gts., in Sy.

No.564/A/1 of Bheemaram village and the said writ petition was

also ordered on 24.06.2022 permitting the petitioner to make an

online application on Dharani portal under appropriate module

seeking updation of the subject land within a period of three weeks

and on submission of such application, the respondent No.2 was

directed to consider the same within a period of eight weeks by

putting all the persons interested on notice. Apart from the above,

the petitioner had also filed WP No.13061 of 2020 seeking a

direction to the respondent Nos.4 and 5 therein not to interfere in

the civil disputes between the petitioner and the unofficial

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

respondents and in the said writ petition also an interim order was

passed in favour of the petitioner on 24.08.2020 granting interim

stay of survey in respect of the subject land until further orders vide

I.A. No.1 of 2020. The courts below also failed to appreciate that

with regard to the same property one Namindla Rajaiah and

Namindla Mogili filed O.S. No.689 of 2011 on the file of the

Principal Junior Civil Judge, Warangal seeking permanent

injunction against the petitioner and one Matteda Sadanandam in

respect of the land admeasuring Ac.0.32 gts. in Sy. No.546/A/1

situated at Bheemaram Shivar. In the said suit, the petitioner raised

counter claim in respect of the property to an extent of Ac.1.22 gts.,

in Sy. No.564/A/1 and Ac.0.10 ½ gts., in Sy. No.546/A/2 of the

same village. After full-fledged trial, the civil court dismissed the

suit and allowed the counter claim raised by the petitioner and

granted permanent injunction in favour of the petitioner. The

petitioner could not file all the above documents before the trial

court, but the said documents were already filed in the earlier round

of litigation wherein the counter claim was allowed to establish his

possession over the suit schedule property and hence, filed I.A.

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

No.2 of 2023 in the present revision petition to receive additional

material papers and sought to remand the matter to the trial court to

pass orders afresh on considering all the above documents.

5. The learned counsel for the respondent, on the other

hand, contended that the petitioner approached the courts below

with unclean hands and suppressed the real facts. The petitioner

suppressed the fact of cancellation of pattedar passbook and title

deed by the Special Tribunal vide order dated 05.07.2021. Though

the petitioner stated that he filed WP No.19548 of 2021 against the

orders of the Special Tribunal dated 05.07.2021, failed to mention

that the respondents filed a vacate petition in the writ petition vide

I.A. No.2 of 2021 on 13.09.2022 which was pending consideration.

He further contended that Writ Petition No.26789 of 2022 was

filed without making the respondents as parties. The petitioner was

seeking contrary reliefs in WP No.19548 of 2021 and WP

No.26789 of 2022. The interim order was passed in W.P.No.13061

of 2020 before cancellation of pattedar passbooks and title deed by

the Special Tribunal. The factum of tampering and manipulating

the revenue records was not before the said Court. Therefore, the

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

stay of survey would not establish the possession of the petitioner.

In fact, the petitioner was not in possession of the suit lands. He

further submitted that O.S. No.944 of 2006 was filed by the

petitioner against third parties and the respondents were not parties

to the said suit. The petitioner was relying on an ex parte decree.

Therefore, the question of respondents filing an appeal against the

said decree would not arise. O.S. No.689 of 2011 seeking

injunction was filed against the petitioner in respect of suit

schedule property in Sy. No.546/A/1 to an extent of Ac.0.32 gts.

The petitioner in that suit filed counter claim with regard to the

lands in Sy.No.564/A/1 to an extent of Ac.1.32 gts., and in

Sy.No.546/A/2 to an extent of Ac.0.10 ½ gts. The said suit was

dismissed and the counter claim was allowed on 03.08.2017. An

appeal was filed against the judgment and decree in O.S. No.689 of

2011 before the I Additional District Judge at Hanumakonda vide

AS No.215 of 2022 and AS No.221 of 2022 (Old AS Nos.151 and

151 of 2017) and the same were pending before the District Judge.

Therefore, it was incorrect to state that the judgment and decree in

O.S No.689 of 2011 had become final. The petitioner suppressed

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

the above facts. Therefore, the petitioner was not entitled to claim

the discretionary relief of injunction. As no documentary proof

evidencing his title and possession were filed by the petitioner

before the trial court as well as the lower appellate court, the same

could not be received in evidence in the CRP. As the petitioner

himself failed to file the documents before the trial court and the

lower appellate court, he could not find fault with the orders of the

courts below. The petitioner failed to state as to when he

discovered the above documents and whether they were available

at the time of filing the suit and appeal. There were no averments

with regard to the petitioner conducting due diligence in filing the

documents before the trial court as such, the application in I.A.

No.2 of 2023 is liable to be dismissed. The documents filed along

with the additional material papers also would not establish the

possession of the petitioner over the suit schedule lands. The

petitioner could not be allowed to fill up lacunae by filing fresh

documents which were not part of the record and prayed to dismiss

I.A. No.2 of 2023 as well as the revision.

6. Now the points for consideration in this revision are:

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

1. Whether the documents filed by the petitioner, which were not part of the record before the courts below, can be received in this revision?

2. Whether there is any illegality in the orders of the courts below in dismissing the interim injunction petition filed by the petitioner to set aside the same?

3. To what result?

7. POINT No.1:

The contention of the learned counsel for the petitioner was

that the counsel on record for the petitioner before the trial court

failed to file the relevant documents before the court below. The

petitioner was not at fault in giving the relevant information to the

counsel. But, due to the mistake of the counsel, the documents

were not filed though the same were available. If an opportunity

was given to the petitioner to produce the documents as referred in

I.A. No.2 of 2023 and the matter was remanded to the trial court,

no prejudice would be caused and prayed to remand the matter to

the trial court by receiving the documents. He relied upon the

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

judgment of the Hon'ble Apex Court in Rafiq & another v.

Munshilal & another 1, wherein it was held that:

"It is not proper that an innocent litigant, after doing everything in power to effectively participate in proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanor of his agent. For whatever reason the Advocate might have absented himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate".

8. He also relied upon the judgment of the Hon'ble Apex

Court in Smt. Lachi Tiwari and others v. Director of Land

Records and others 2 , wherein also by relying upon the earlier

judgment in Rafiq's case (1 supra), the Hon'ble Apex Court held

that:

"...the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job."

9. He also relied upon the judgment of the Gauhati High

Court in Prahlad Chandra Dey v. Assam Board of Revenue at

1981 AIR 1400

AIR 1984 SC 41

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

Gauhati 3, wherein also the High Court considered whether a party

to the appeal be penalized for the inaction, deliberate omission or

misdemeanor of his lawyer and held that the answer obviously was

in the negative.

10. He also relied upon the judgment of the High Court of

Madhya Pradesh at Jabalpur in Smt. V. Meena Agrawal and

another v. Smt. Kanta Devi Batra and others, wherein while

considering the application for condonation of delay under Section

5 of the Limitation Act, it was held that:

"18. Normally, sufficient cause must be a cause which is beyond control of the party invoking the aid of the section. For somebody else's negligence or fault, the party or the substantial justice should not be allowed to suffer; Where neither negligence nor want of bonafide is imputable to the party for the delay in filing, it would constitute sufficient cause. Where the party did everything at his command, but the lapse is on the part of the counsel, it affords a ground for condonation. But a slip due to accidental mistake or oversight by a pleader or on the ground of illness may be excused. These are all excusable oversight of a party's advocate, which at times require a liberal approach from the point of the party concerned, where there was no negligence on his part. Not following up the case after engaging a counsel, even assuming that it can come within the ambit of honest mistake, even such mistake is entitled for excuse

AIR 1987 Gau 9

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

and comes within the meaning of 'sufficient cause' for excusing the delay."

11. The learned counsel for the respondents, on the other

hand, contended that these documents were placed for the first time

before this Court and they were not part of the record before the

trial court as well as the lower appellate court. No second chance

could be given to the petitioner by remanding the matter and relied

upon the three Judge Bench judgment of the Hon'ble Apex Court

in Shiva Kumar and others v. Sharanabasappa and others 4 ,

wherein it was held that:

"26.4......It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.

26.6. The present case had clearly been the one where the parties had adduced all their evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants that they were denied any opportunity to produce any particular

2021 (11 SCC 277

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

evidence or if the trial was vitiated because of any alike reason....."

12. He also relied upon the judgment of the Hon'ble Apex

Court in Heinz India Private Limited and another v. State of

U.P. and others 5, wherein it was held that:

"80. We regret our inability to accede to any such request. We do not think that a party who has had ample opportunity before the authorities below, to substantiate its claim can have the luxury of either producing material for the first time in the Supreme Court or ask for a remand to enable it to do what it ought to have done at the appropriate stage. It was not the contention of the appellants that they were not given a fair opportunity to prove their case before the authorities below. As a matter of fact, orders passed by the Mandi Samiti and the Mandi Parishad show that sufficient opportunity was indeed afforded to the appellants and the matter had remained pending for a number of years before those authorities.

81. Mr. Chandra contended that the appellants had been requesting the authorities to indicate as to what kind of material would satisfy them but since the authorities had failed to respond to that query the appellant had not produced the bulk of the material which was relevant and available with them. We do not think that such a procedure was legally permissible or even called for in the facts and circumstances of the case.

82. As to what material would be sufficient to prove the case of the party who goes to the Court for relief is a matter for the party or those in charge of its legal affairs to determine. No litigant can ask for guidelines from the Court or statutory body as to the evidence which the party

2012 (5) SCC 443

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

should adduce to substantiate its claim. The query made by the appellants as to what material if adduced would satisfy the authorities were, therefore, misplaced and a red herring to say the least. This is particularly so when the appellants were in no way handicapped on account of lack of resources or capacity to get the best of legal advice. Companies with such tremendous resources as the appellants before us cannot find a shortcut to the discharge of their obligations under the law by asking the Court or the authority concerned to indicate as to what kind of evidence would be sufficient in its opinion to entitle them to the refund of the amount paid or payable towards market fee.

83. So also, no remand ought to be made only to enable a party to produce additional material. A remand is neither mechanical nor a routine affair. If there is nothing wrong in the orders under challenge, there is no question of interference with the same. There is no reason for this Court to set the clock back and start a process which would take the parties another decade or so to come to terms with the problem."

13. He also relied upon the judgment of the Hon'ble Apex

Court in Sree Panimoola Devi Temple and others v.

Bhuvanachandran Pillai and others 6, where in it was held that:

"4. If the plaintiffs had not led sufficient evidence to establish their case as held by the High Court, ordinarily that should have been the end of the matter. In any case, the conclusion of the High Court that the Exts.B-1 to B-4 were not sufficient to reach any positive conclusion does not commend to us in view of the elaborate consideration of the said documents by the learned trial court to reach the conclusion that

2015 (12) SCC 698

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

the temple was a private temple. In such circumstances, remand of the suit for de novo consideration virtually gives to the plaintiffs a second opportunity to establish their case.

9. In view of the foregoing discussions and the aforesaid reasons, we are of the view that the High Court was not correct/justified in remanding the suit to the learned trial court for de novo consideration. We, therefore, set aside the order of the High Court and allow this appeal and restore the decree passed by the learned trial court."

14. He also relied upon the judgment of the Hon'ble Apex

Court in Bhagawan Sahai Todwal v. State of Rajasthan and

others 7, wherein it was held that:

"7. ...We cannot make an order of remand for the purpose of giving the appellant an opportunity of raising additional grounds and seeking additional relief now and then asking the Court to enter into examining the validity of the order dated 24-9-1983 on such additional pleas and for such additional reliefs."

15. Admittedly, the documents which were now sought to

be filed by the petitioner before this Court in I.A. No.2 of 2023

were not filed before the trial court or before the lower appellate

court, though the plaintiff was admittedly in possession of the said

documents by the date of filing of the suit itself. The plaintiff

2010 (15) SCC 749

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

admittedly did not choose to state all the facts openly. He intended

to disclose only such facts which he deemed beneficial to him.

But, had not come out with clean hands by disclosing about

cancellation of his pattedar passbook and title deed by the Special

Tribunal or about filing of several writ petitions by him or the

orders passed in the said writ petitions or that an appeal was filed

by the respondents against the counter claim allowed in O.S.

No.689 of 2011 vide AS No.215 of 2022 and AS No.221 of 2022.

Only after the trial court and the lower appellate court dismissed

the interlocutory application filed by him and the CMA filed

against it, he came up with the present application stating these

facts. No reason was stated by him for not filing these documents

before the courts below except throwing the blame on the counsel

representing him before the courts below. A second chance could

not be given by remanding the matter for re-appreciating the

documents. When all the documents were within his possession

and no reasons were stated as to why he could not file the same

before the trial court, the petition cannot be allowed. The

documents, which were not part of the record cannot be received in

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

the revision to consider whether there is any mistake or illegality in

the judgment or orders of the courts below. Hence, this point is

answered against the petitioner holding that the documents filed by

him which were not part of the record before the courts below

cannot be received in this revision.

16. POINT No.2:

On a perusal of the orders of the courts below, the learned IV

Additional Junior Civil Judge had considered all the documents

filed by both the parties in detail and came to a conclusion that the

petitioner failed to establish prima facie possession and enjoyment

over the petition schedule property to grant the relief of temporary

injunction. The lower appellate court also observed that the

petitioner failed to prove his possession over the petition schedule

property for all the survey numbers and his prima facie title over

the schedule property as the original pattader passbook was

cancelled and observed that the petitioner failed to discharge the

initial burden and as such, dismissed the petition.

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

17. As seen from the order of the trial court there is a cloud

on the title of the petitioner, as the Special Tribunal held that the

entries in the revenue records were tampered. The petitioner's right

and title were not yet crystallized in view of the writ petitions and

appeals, which were pending adjudication. The petitioner also not

approached the Court with clean hands by disclosing all the facts.

As such, he is not entitled to claim the discretionary relief of

injunction.

18. Learned counsel for the respondent also relied upon the

judgments of the Hon'ble Apex Court in Anathula Sudhakar v. P.

Buchi Reddy (dead) by LRs. and ors. 8 and in T.V. Ramakrishna

Reddy v. M. Mallappa and another 9, on the aspect that:

"....where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. If the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction."

2008 (4) SCC 594

AIR 2021 SC 4293

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

19. He also relied upon the judgment of the Hon'ble Apex

Court in Balakrishna Dattatraya Galande v. Balkrishna

Rambharose Gupta and another 10, wherein it was held that:

"....When the finding of the trial court was based on oral and documentary evidence, the First Appellate Court and the High Court were not right in setting aside the judgment of the trial court by drawing inference of possession from Purshis Ex.-41. In our considered view, the First Appellate Court and the High Court fell in error by presuming that the first respondent-plaintiff was in possession by merely relying upon the prior suit filed by the appellant-defendant for possession and Purshis Ex.-41. The impugned order of the High Court affirming the findings of the First Appellate Court is not sustainable and is liable to be set aside."

20. He also relied upon the judgment of the Hon'ble Apex

Court in Gujarat Bottling Co.Ltd. and others v. Coca Cola Co.

and others 11, wherein it was held that:

"Being an equitable relief, the conduct of parties seeking injunction or the party seeking courts interference with the order of injunction must be fair."

21. He also relied upon the judgment of the Hon'ble Apex

Court in Agnigundala Venkata Ranga Rao v. Indukuru

2019 (2) ALT (SC) 7 (D.B.)

1995 (5) SCC 545

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

Ramachandra Reddy (dead) by LRs.and others 12 , wherein it

was held that:

"The question as to who is in possession of the suit property is essentially a question of fact. Such question is required to be decided on appreciation of evidence adduced by the parties in support of their respective contentions. Once the trial court renders a finding either way and the same is then appreciated by the first appellate court in exercise of its appellate jurisdiction, such finding is usually held binding on the second appellate court and the Supreme Court. It is only when such finding of fact is found to be against the pleading or evidence or any provision of law or when it is found to be so perverse or/and arbitrary to the extent that no judicial person of an average capacity can ever record, the same would not be binding on the higher courts and may in appropriate case call for interference."

22. He also relied upon the judgment of the Hon'ble Apex

Court in Home Care Retail Marts Private Limited v. New Era

Fabrics Limited 13 , wherein also by relying upon its earlier

judgment in Rajbir Kaur v. S. Chokesiri & co. [1989 (1) SCC

19], it was observed that:

"When the findings of fact recorded by the courts below are supportable on the evidence on record, the Revisional Court must be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own."

2017 (7) SCC 694

2009 (17) SCC 429

I.A. No.2 of 2023 in/and CRP No.1678 of 2023

23. He also relied upon the judgment of this Court in

Vuppalapati Ramesh v. T. Narayan Reddy 14 on the aspect that:

"Temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands."

24. Thus, as observed by this Court, the plaintiff had not

approached the court with clean hands by disclosing all the facts

relevant for disposal of the application and stated only the facts

which he considered as beneficial to him. The trial court as well as

the lower appellate court on considering all the documents

exhibited by both the parties, came to a conclusion that the plaintiff

failed to prove his prima facie title and possession over the suit

schedule properties. This Court does not find any illegality or

perversity in the orders of the courts below to set aside the same in

this revision.

25. POINT No.3:

In the result, the Civil Revision Petition and I.A. No.2 of