Telangana High Court

Keesari Srinivas vs Mohd. Wahed Ali on 3 June, 2024

Author: P.Sree Sudha

Bench: P.Sree Sudha

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                SECOND APPEAL No.483 of 2007

JUDGMENT:

This second appeal is filed against the Judgment and

decree dated 23.02.2007 in A.S.No.10 of 2006 passed by the

learned V-Additional District Judge (III-F.T.C), Miryalguda, in

which the Judgment and decree dated 20.03.2006 in

O.S.No.255 of 1998 passed by the learned Junior Civil Judge,

Miryalguda, was set aside.

2. Initially, appellants/plaintiffs have filed a suit vide

O.S.No.255 of 1998, for perpetual injunction restraining the

respondents/defendants from interfering with their peaceful

possession and enjoyment of the plaint schedule lands. The

appellant No.1/plaintiff No.1 was examined himself as P.W.1

and also got examined P.Ws.2 and 3 on his behalf and marked

Exs.A1 to A19 on their behalf. D.Ws.1 to 20 were examined on

behalf of the respondents/defendants and marked Exs.B1 to

B16 and Ex.C1 on their behalf. The trial Court after considering

the arguments of both sides, decreed the suit. Aggrieved by the

said Judgment and decree, defendants therein preferred an

appeal before the first appellate Court, and the first appellate

Court by Judgment and decree dated 23.02.2007, allowed the

appeal setting aside the Judgment of the trial Court, against

which respondents therein preferred the present second appeal.

3. The learned Counsel for the appellants/plaintiffs raised

the following substantial questions of law:

"a) Whether the execution of alleged Ex.B1 by the appellants father in his individual capacity binds the appellants and their mother?

b) Whether in the absence of passing of better title to D.13 under Exs.B1 and B2 can the respondents claim title against the appellants herein?"

4. The parties herein are referred as plaintiffs and

defendants as arrayed before the trial Court for the sake of

convenience.

5. The brief facts of the case are that plaintiffs are own

brothers and they are living under one roof. They are absolute

owners and actual possessors of the plaint schedule lands

situated at Miryalguda Sivaru. They got the dry land to an

extent of Ac.0-36 gts, situated in Sy.No.885/A2 from their

mother Keesari Lakshmamma and the remaining lands to an

extent of Ac.1-00 gts in Sy.No.896/E, Ac.0-30 gts in

Sy.No.896/Ru2 from their father Keesari Saidaiah @ Saidulu

besides other lands in Sy.No.896 and still they are enjoying the

said lands. The revenue authorities issued Pattedar passbooks

and title deeds to the plaintiffs by dividing their share by giving

bit numbers for their convenience, but plaintiffs have not

partitioned their lands and their names are recorded as

pattedars and possessors of the plaint schedule lands. The

defendants without having any manner of right, title or interest

over the suit lands, interfering with their peaceful possession

and enjoyment of the suit schedule lands. The defendants did

not have lands near or adjacent to the plaint schedule lands.

Plaintiffs resisted the illegal attempts of defendants with great

difficulty on 20.05.1998 and on 23.08.1998 and later filed suit

for injunction.

6. The defendant No.2 in the suit filed the written statement

and it was adopted by defendants No.1, 3 to 6. In the written

statement filed by her, defendants denied all the material

averments of the plaint and contended that the parents of the

plaintiffs long back sold away the maximum extent of the lands

in Sy.Nos.885 and 896 to defendant No.13, therefore plaintiffs

have nothing to do with the plaint schedule lands. The issuance

of passbooks and title deeds by the revenue authorities to the

plaintiffs without following the procedure as in the A.P Rights in

Lands and Pattedar Passboks Act, is illegal. As the lands have

already become house sites, the rights in the said Act are not

applicable to house sites. The authorities without inspecting the

lands might have issued them. The entries in Pattedar Pahani

Patrikas are not final and are rebuttable. The defendant No.2 is

also taking steps to prefer an appeal against the issuance of

said documents. The defendant No.13 had purchased the land

to an extent of Ac.0-33 gts in Sy.No.885 and Ac.0-20 gts in

Sy.No.896, totally admeasuring Ac.1-13 gts, situated at

Miryalguda Revenue Village from the father and mother of the

plaintiffs respectively for a total sale consideration of 15,500/-

on 16.08.1976 under an agreement of sale and got executed

deed of sale agreement in his favour. As per the contents of the

sale agreement, parents of the plaintiffs delivered the possession

of the land to an extent of Ac.1-13 gts to defendant No.13. Later,

the parents of the plaintiffs executed G.P.A in favour of

defendant No.13 vide document No.21 of 1976 dated

13.09.1976, before the Sub-Registrar Office, Miryalguda. The

defendant No.13 after making it into house plots, sold away the

said land to various persons leaving Ac.0-14 gts of land for

internal roads.

7. She also stated that defendants No.1 to 12 and some

other persons have purchased the Ac.0-39 gts of land in plot-

wise. As defendant No.13 got an agreement of sale in his favour

from the parents of the plaintiffs, he himself executed a

registered sale deed to defendants No.1 to 6, in the capacity of

owner and possessor during the years 1982 and 1984. He

planted standing stones for appearance of plots and internal

roads in clear shape. The parents of the plaintiffs are having

knowledge regarding conversion of the land by defendant No.13

and selling away to the defendants No.1 to 12, but they did not

object the same. The defendant No.6 laid a hut in the said site

about 10 years back. The plaint schedule lands became house

sites very long back in the year 1985 and 1986 and they lost the

characteristic of agricultural land. The revenue authorities

without inspecting the actual possession over the land, carried

the previous year entries in slipshot manner. One Raja

Rajeshwari Para Boiled Modern Rice Mill is situated near the

plaint schedule land. After boiling paddy, the excreted water

was let out into plaint schedule lands from the last 15 years.

Neither the parents of the plaintiffs nor the plaintiffs objected

the owners of the rice mill. There is 10 ft width passage between

compound wall of Raja Rajeshwari Rice Mill and the house plots

in both the suit survey numbers sold by defendant No.13. It is

intended for using the path to the house plot purchasers and

also to reach the lands situated beyond the plots. There was a

small deity "Maisamma" installed under Tamarind tree near the

plots. The defendant No.1 purchased the house site

admeasuring 242 Sq.yrds in Sy.No.885 for a sale consideration

Rs.1,210/- under registered sale deed bearing document

No.1305 of 1982 dated 05.04.1982 from defendant No.13. The

defendant No.2 purchased the house site admeasuring Ac.0-06

gts in Sy.No.896 for a sale consideration of Rs.2,000/- under

registered sale deed bearing document No.3385 of 1984 dated

05.07.1984. The defendant No.3 purchased the house site

admeasuring 242 Sq.yrds in Sy.No.896 for a sale consideration

of Rs.2,500/- under registered sale deed bearing document

No.2652 of 1987 dated 18.06.1984. The defendant No.4

purchased the house site admeasuring 121 Sq.yrds in

Sy.No.896 for a sale consideration of Rs.1,300/- under

registered sale deed bearing document No.4329 of 1984 dated

16.10.1984. The defendant No.5 purchased the house site

admeasuring 90 Sq.yrds in Sy.No.896 for a sale consideration of

Rs.900/- under registered sale deed bearing document No.4330

of 1984 dated 16.10.1984. The defendant No.6 purchased the

house site admeasuring 242 Sq.yrds in Sy.No.885 for a sale

consideration of Rs.2,700/- under registered sale deed bearing

document No.331 of 1985 dated 30.01.1985 and rectification

deed bearing No.2921 of 1993 dated 30.11.1993 from defendant

No.13, as such plaintiffs have no right or possession over the

plaint schedule lands for the last 21 years. Defendants No.2 and

6 are in possession of their respective house plots prior to the

dates of their purchase. The defendants No.1, 3, 4 and 5 are in

possession of their respective plots from the date of their

purchase. Therefore, requested the Court to dismiss the suit.

8. The defendant No.7 filed the written statement, which was

adopted by defendants No.8 to 11. In the said written

statement, she stated that she purchased house site

admeasuring 181 ½ Sq.yrds in Sy.No.885 for a sale

consideration of Rs.2,000/- under registered sale deed bearing

document No.739 of 1985 dated 31.01.1985 from defendant

No.13. The defendant No.8 purchased house site admeasuring

181 ½ Sq.yrds in Sy.No.885 for a sale consideration of

Rs.2,000/- under registered sale deed vide document No.855 of

1985 dated 11.03.1985 from defendant No.13. The defendant

No.9 purchased the house site admeasuring 121 Sq.yrds in

Sy.No.885 for a sale consideration of Rs.1,400/- under

registered sale deed vide document No.856 of 1985 dated

02.03.1985 from defendant No.13. The defendant No.10

purchased the house site admeasuring 60 ½ Sq.yrds in

Sy.No.885 for a sale consideration of Rs.700/- from defendant

No.13. The defendant No.11 purchased the house site

admeasuring 243 2/3 Sq.yrds in Sy.No.896 for a sale

consideration of Rs.4,150/- from defendant No.13.

9. The defendant No.13 in his written statement stated that

father and mother of the plaintiffs during their life time, sold

away the land measuring Ac.0-33 gts in Sy.No.885, Ac.0-20 gts

of land in Sy.No.896 in the year 1976, altogether Ac.1-13 gts,

situated at Miryalguda Revenue village forming one plot to

defendant No.13 and executed a simple sale deed in the form of

agreement in his favour. On 13.09.1976, the father of the

plaintiffs executed a G.P.A vide document No.21 of 1976 before

the Sub-Registrar, Miryalguda, appointing the defendant No.13

in respect of the Ac.1-36 gts of land, as such he in turn sold the

land by making house plots to several persons. The remaining

land to an extent of Ac.0-14 gts was left for internal roads. The

defendants No.1 to 12 and others have got registered sale deeds

from defendant No.13 and took the possession of their

respective house sites. Though the trial Court mentioned

regarding the execution of the registered sale deeds by

defendant No.13, decreed the suit in favour of plaintiffs. It was

observed that though the pattadar passbooks and title deeds

were given in favour of the plaintiffs, defendants did not prefer

any appeal till the completion of the evidence of plaintiffs. They

obtained exparte Orders from Revenue Divisional Officer,

Miryalguda, dated 06.04.2002, under Ex.B3. It was further

observed that there was cultivation of dry crops in the suit

schedule lands and the said crops were raised by the father of

the plaintiffs till his death and after the death of the father of

the plaintiffs, plaintiffs cultivated the dry crops till 1998 and

held that Ex.B2-agreement of sale is a fabricated document. If

at all the parents of the plaintiffs, really executed the sale deed

under Ex.B2, defendant No.13 should have mentioned the same

in his written statement filed in O.S.No.43 of 1985, filed by the

maternal uncle of the plaintiffs on behalf of the plaintiffs.

C.Eashwaraiah, who was the Sub-Registrar of Miryalguda, was

examined as D.W.20 and the thumb impression of Keesari

Saidhaiah, who is the father of the plaintiffs in the thumb

impression register was marked as Ex.C1 through D.W.20.

D.W.20 stated that the said thumb impression was not obtained

in his presence and there was no identification marks or photo

of the individual to identify that the said thumb impression

belongs to the father of the plaintiffs. It was also observed that

no documentary evidence was produced by defendants No.1 to

12 to show that they are in possession of their respective house

sites. It was also observed that the decree in O.S.No.43 of 1985

dated 23.11.1987, was not challenged by defendants No.6, 7, 12

and 13 and it became final. The suit against defendants No.10

and 11 was dismissed as abated, as no legal representative was

brought on record, as such decreed the suit in favour of

plaintiffs, restraining defendants No.1 to 9, 12 and 13 from

interfering with their peaceful possession.

10. The first appellate Court contended that it is the suit for

bare perpetual injunction, as such the Court is not expected to

go in depth regarding the title of the parties. It was also

observed that though the defendants did not challenge the

exparte decree dated 23.11.1987 in O.S.No.43 of 1985, they

contended that the suit schedule property involved in the above

suit is a dry land admeasuring Ac.0-36 gts in Sy.No.885, which

is part and parcel of Ac.1-13 gts in Sy.No.885 and 886, which is

the suit schedule property of this case. The suit schedule

property in the present case is larger as compared to the suit

schedule property of the above suit, there was variation of

boundaries. Some of the defendants in the present suit were not

a party in the said suit, as such the principle of res-judicata is

not applicable. It was further observed that in a suit for

perpetual injunction, a person should come to the Court with

clean hands. It was also observed that in O.S.No.43 of 1985, the

title of the plaintiffs was denied by the defendants. Though the

plaintiffs are having knowledge of the same, filed suit for

perpetual injunction without seeking declaration, which is not

tenable. The first appellate Court further relied upon the

decision of the Hon'ble High Court of Andhra Pradesh, in the

case of N.R.Srinivas Vs.Madduri Mallareddy and others, 1 in

which it was held as follows:

"No doubt, the Court while dealing with the aspect of injunction under Order-39 rules 1 and 2 or in suits for permanent injunction have to necessarily weigh various facts and circumstances. While dealing with an application under Order 39 rules 1 and 2 of C.P.C, the Court has to necessarily go basically into three important aspects- Firstly, prima facie case, secondly, balance of convenience and thirdly, loss that is likely to be caused to the parties. Whereas, while dealing with the question of granting permanent injunction, various other circumstances on record have to be gone into.

2005(1) ALD 268

Normally, the Court while dealing with the suit for permanent injunction, the question of possession of the plaintiff as on the date of filing of the suit will be taken as the prime factor for consideration. It is also the well settled proposition of law that in a suit for injunction, the question of title has to be and can be gone into. What is the effect of consideration and decision regarding the finding relating to title in a suit for injunction is a different subject."

The first appellate Court pointed out that the trial Court has not

relied upon Ex.B16, as it was obtained without issuing notice to

the plaintiffs, but did not considered the fact that Exs.A1 to A8

were issued after the conversion of agricultural land into house

sites since 1976 and accordingly set aside Judgment of the trial

Court and allowed the appeal.

11. The case of the defendants is that parents of the plaintiffs

authorized defendant No.13, executed G.P.A and also executed

agreement of sale in his favour regarding the suit land

measuring an extent of Ac.1 - 13 gts, as such he converted the

same into house plots and sold to defendants No.1 to 12 and

others and also executed registered sale deeds in their favour,