Ambati Bhaskar v. Ajjan Sudharshan

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION Nos.714 & 716 of 2015 COMMON ORDER :

C.R.P.No.714 of 2015 The plaintiffs who are 15 in number in O.S. No.230 of 2012 on the file of the learned Senior Civil Judge, Nizamabad maintained against 19 defendants, with a prayer for permanent injunction based on title and possession, pending suit site for temporary injunction in I.A. No.1029 of 2011. The learned Senior Civil Judge after having granted ad-interim exparte injunction dated 02.01.2013, pending notice and thereafter from respective contest and on hearing both sides and on merits granted the temporary injunction by order dated 22.04.2014 restraining the defendantsrespondents and their men from interfering into plaintiffspetitioners' possession over the plaint schedule plots till disposal of the suit. Impugning the same, defendantsrespondents preferred C.M.A. No.

19 of 2014 and the learned I Additional District Judge, Nizamabad under the impugned order dated 17.01.2015 allowed the civil miscellaneous appeal by setting aside the order granting temporary injunction passed by the trial Court by vacating the injunction pending till then. The present revision is filed under Article 227 of the Constitution of India by the plaintiffs supra impugning the order of the lower appellate Court in reversing and vacating the temporary injunction granted by the trial Court.

C.R.P.No.716 of 2015

2) The plaintiffs who are 8 in number in O.S. No.6 of 2013 on the file of the learned Senior Civil Judge, Nizamabad maintained against 19 defendants, with a prayer for permanent injunction based on title and possession, pending suit site for temporary injunction in I.A. No.20 of 2013. The learned Senior Civil Judge after having granted ad-interim exparte injunction dated 03.01.2013, pending notice and thereafter from respective contest and on hearing both sides and on merits granted the temporary injunction by order dated 22.04.2014 restraining the defendantsrespondents and their men from interfering into plaintiffspetitioners' possession over the plaint schedule plots till disposal of the suit. Impugning the same, defendantsrespondents preferred C.M.A. No.

18 of 2014 and the learned I Additional District Judge, Nizamabad under the impugned order dated 17.01.2015 allowed the civil miscellaneous appeal by setting aside the order granting temporary injunction passed by the trial Court by vacating the injunction pending till then. The present revision is filed under Article 227 of the Constitution of India by the plaintiffs supra impugning the order of the lower appellate Court in reversing and vacating the temporary injunction granted by the trial Court.

3(a) The contentions in the grounds of the revision as well as the oral submissions by the counsel for revision

petitions in both the matters respectively by the two sets of plaintiffs against the self-same respondents-defendants, almost the same are that the learned Senior Civil Judge rightly appreciated the documentary evidence in proper perspective and taking into consideration of the principles laid down for grant of interim injunction pending disposal of the suit allowed the petitions, whereas the appellate Court by giving erroneous reasons/findings reversed the well considered order passed by the trial Court even though the prima facie case, balance of convenience are in favour of the petitioners with irreparable injury for grant of interim injunction with right, title and possession over the plots and substantiated by the documents Exs.P-1 to P-8, that the learned Senior Civil Judge, Nizamabad found that pursuant to the execution of Ex.

P-8 G.P.A, the G.P.A holders have converted the land in Sy.No.269, extent Ac.9-30 guntas into 170 house plots and the area covered by the said plots was named as Ashok Nagar colony, that the petitioners/plaintiffs purchased the plot Nos.165/1, 129, 56, 55, 95, 160 and 159 and 159/1 under Exs.

of sale deeds by the GPA holders, that the trial Court rightly found that the respondents made an attempt to dispossess the petitioners from the suit schedule plots and found that the prima facie possession and balance of convenience lies in favour of the petitioners and if the injunction is refused the petitioners/plaintiffs will be put to irreparable loss and injury, that therefore, the trial Court rightly considered the three principles i.e., prima facie case, balance of convenience and irreparable injury while granting the interim injunction in favour of the petitioners, but the appellate Court by giving erroneous findings on Ex.

and as such the same is liable to be set aside, that the appellate Court ought to have seen that the revision petitioners were in lawful possession of the property and the same was evident from the sale deeds produced by them in support of their case, that admittedly the respondents 1 to 7 have executed development agreement in favour of the respondent Nos.18 and 19 and if the temporary injunction order is not continued pending disposal of the suit, situation over the land may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter, that therefore the order under revision reversing the trial Court order by the appellate Court is liable to be set aside, that the learned appellate Court ought to have seen that the respondents though denied the existence of Sy.No.

269 in the revenue records but they have admitted in their counter that the execution of GPA i.e., Ex.P-8 are co-owners of the land in Sy.Nos.269/A, 269/U, 269/AA, 269/E and 269/EE, that therefore, it is clear that the respondents have admitted that the GPA was executed by the co-owners of the said survey numbers, that the existence of sub-division Nos. 269/A, 269/U, 269/AA, 269/E and 269/EE cannot be sub-divided without the existence of main survey number i.e., Sy.No.269, that the learned appellate Court by saying that the Sy.No.269 is mentioned in the sale deeds and the approved lay out was not filed, cannot draw adverse inference against the existence of Sy.No.

admitted in their counter with regard to execution of GPA by the co-owners of the land in Sy.No.269, that without taking into consideration of the said admitted evidence on record, that the learned appellate Court on erroneous grounds disbelieved the possession of the petitioners and held that the petitioners failed to establish prima facie case in their favour and allowed the appeal by setting aside the well considered order passed by the trial Court which is nothing but arbitrary, illegal and contrary to principles of law laid down by this Honourable Court and the Honourable Apex Court, that therefore the order under revision is liable to be set aside by restoring the interim injunction granted by the learned trial Court pending disposal of the suit.

3(b) Whereas, it is the contention of the learned counsel for respondents-defendants respectively in support of the impugned orders under revision of the lower appellate Court that, the mention of survey number 269 as if with no sub-division and without even filing the Stonch plan if not with sub-division and, when there is sub-division, without mentioning the sub-division numbers and with wrong boundaries and that too when there was no proof of partition between the co-owners or joint owners i.e.

that thereby the lower appellate Court, when reversed the order granting injunction by trial Court, by vacating it for no prima facie case, muchless balance of convenience or any sufferance of irreparable loss, there is nothing to interfere within the limited scope of revision for this Court to sit against and thereby sought for dismissal of the revision.

4) Heard the learned counsel for both sides as detailed supra and perused the material on record. In the course of final hearing of the revision while reserving for orders till pronouncements of orders, the status-quo as on the date of the impugned order passed by the lower appellate Court before vacating the injunction is directed to be maintained in favour of the plaintiffs-revision petitioners.

5) Now, common points that arise for consideration in both the revisions are:

(i) Whether the respective petitioners/plaintiffs are having any entitlement to possession and in possession of the respective plaint schedule properties against the self-same defendants/respondents, with any prima facie case, balance of convenience for any entitlement to the equitable relief of injunction pending suit by showing otherwise also of there will suffer irreparable injury as the pre-requisites and if so the respective orders reversing the temporary injunction granted by the lower appellate Court are unsustainable and require interference by this Court while sitting in revision respectively and to what extent and with what observations?

(ii) To what relief?

POINT No.(i):

6(a) The plaint schedule property in O.S. No.230 of 2012 covered by C.R.P. No.714 of 2015 is consisting of 15 plots viz., Plot No.72, 73 and 74 of item No.1, Plot No.157 and 158 of item No.2, Plot No.122 of item No.3, plot Nos.61 and 62 of item No.4, plot No.92 of item No.5, Plot No.24 of item No.6, Plot No.54 of item No.7, Plot No.58 of item No.8, Plot No.57 of item No.9, Plot No.17 of item No.10, Plot No.111 of item No.11, Plot No.112 of item No.12, Plot No.117 of item No.13 and Plot No.125 of item No.14 which are all whosn in the survey No.269 of Kanteshwar sivaru, near Ashok Nagar Colony of Nizamabad municipality; Nizamabad town. Likewise, the plaint schedule in O.S. No.6 of 2013 (subject matter of C.R.P. No.716 of 2015) is consisting of seven items viz., Plot No.165/1 of item No.1, Plot No.129 of item No.2, plot No.56 of item No.

3, Plot No.55 of item No.4, Plot No.95 of item No.5, Plot NO.160 of item No.6 and Plot No.159 and 159/1 of item No.7, all in survey No.269 of the same locality and area. The claims of the 15 plaintiffs in O.S. No.230 of 2012 and 8 plaintiffs in O.S. No.6 of 2013 respectively are that they are the owners with possession for entitlement to the temporary injunction restraining the defendants who have no right to interfere.

pattedars of S.No.269 viz., 12-32 guntas.

6(c) As per respective plaint and injunction petition averments one Ajjan Shankar was pattedar in possession of 2-23 guntas in S.No.269/A, Ac.2-22 guntas in S.No.269/U; Ajjan Linganna and Oshetti for Ac.2-23 guntas in S.No.269/AA, Ajjan Gangaram and Narsayya for Ac.2-22 guntas in S.No.269/E and Ajjan Gnaneshwar, Shekar and Prabhakar for Ac.2-22 guntas in S.No.269/EE. Among the 19 defendants though defendant Nos.1 to 17 are with sir name Ajjan, 6th defendant Gangadhar is son of Linganna and defendant Nos.9 and 10 Limbadri and Gangadhar are son of Oshetti and 11th defendant Kiran Kumar, S/o.Narsayya and defendant Nos.16 and 17 Suman and Praveen are sons of Gnaneshwar, if at all their father's names tally.

6(d) As per the plaintiffs claim in O.S. No.230 of 2012, above said pattedars and possessors for Ac.12-32 guntas, executed general power of attorney in favour of Y.Narayana and V.Dattadri including for management and sale of the property of an extent of Ac.9-32 guntas out of which vide G.P.A. No.230, dated 15.10.1990 and the said G.P.A holders converted the said Ac.9-30 guntas into 120 house plots and named it as Ashok Nagar colony and started sale of the plots to different persons of whom the petitioners are also purchasers of the respective plaint schedule plots to say 1st petitioner purchased plaint schedule item No.1 plot

Nos.72, 73, 74 under registered sale deed bearing document No.2478/05.05.2000 (Ex.P-1) 2nd plaintiff purchased item No.2 of plaint schedule in plot No.157 and from one K.Suneetha under sale deed No.5516/14.09.2009 (Ex.P-2). Said Suneetha purchased from B.Gangamani under sale deed No.12684/22.11.2005 (Ex.P-3), said Gangamani purchased from among the pattedars supra through G.P.A; 3rd plaintiff purchased plot No.122 (plaint schedule item No.3) under sale deed No.3900/25.07.1999 (Ex.P-6), 4th plaintiff purchased plaint schedule item No.4 plot Nos.61 and 62 (sic.69) registered sale deed No.2336/03.09.1998 (Ex.P-7), 5th plaintiff purchased item No.5 plot No.92 under sale deed No.4557/06.09.1999 (Ex.A-9), 6th plaintiff purchased plot No.24, item No.6 of plaint schedule under registered sale deed No.2556/06.09.1999 (Ex.

P-10), 7th plaintiff purchased plot No.54 (item No.7 of plaint schedule) under sale deed No.4381/30.08.1999 (Ex.P-12), 8th plaintiff purchased plot No.58 (item No.8 of plaint schedule) under sale deed No.3947/06.07.2000 (Ex.P-13). 9th plaintiff purchased item No.9 of plaint schedule under sale deed No.4378/30.08.1999 (Ex.P-14), husband of 10th plaintiff and father of 11th plaintiff by name Satyanarayana. 12th plaintiff purchased plot Nos.111 and 112 (item Nos.11 and 12) under sale deed Nos.4699/15.09.1999 (Ex.P-16) and gift deed No.4176/2011 under Ex.

purchased plot No.117 (item No.13) under sale deed No.4325/28.08.1998 (Ex.P-18) and that they are in possession and enjoyment being the owners and purchasers of the respective extents of all the plaint schedule items and while so, the defendant Nos.1 to 19, all of a sudden threatened to dispossess the plaintiff with the help of local people with political background and in high handed manner, but for residence by plaintiffs they could remove even boundary stones on 16.12.2012 from which as police also not chosen to come to their rescue they are constrained to maintain the suit and seeking temporary injunction to prevent the respondents unlawfully interferes, having prima facie case with balance of convenience as they are being put to irreparable injury.

7(a) The contest of the defendants before the trial Court in opposing the temporary application in particular and resisting the suit claim in general is that, the plaintiffs are wrongly claiming the lands of the defendants in S.Nos.269/A, 269/U, 269/AA, 269/E and 269/EE covered by the suit land under the guise of the false and fake documents and in collusion with the G.P.A holders Narayana and Dattadri and they never in possession and have no right.

7(b) It is their contest that Gnaneshwar, S/o.Narasimhulu was the original ancestors and so said Gangaram and his son Saidanna claimed S.No.269/A and after death of Gangaram, land was transferred to Ajjan

China Gangaram (brother of Peda Gangaram) both are sons of Saidanna and that defendant No. 1 is son of Peda Gangaram, Defendant No.4 and one Ravi are sons of Chinna Gangaram, defendant Nos.2 and 3 are sons of Ravi and after death of Ajjan Saidanna, the lands were transferred in the name of Ajjan Gangaram who is the joint owner of land of Ac.2-23 guntas in Sy.No.269/A along with his brother Ajjan Pedda Gangaram, S/o.Saidanna (sons of Saidanna are Pedda Gangaram and China Gangaram) and that China Gangaram who was getting the property on behalf of their family and was when trying to alienate without consent of others the defendant Nos.1 to 5 demanded partition of S.No.269/A that was refused by China Gangaram and there was a P.L.C. No.

706/11 before District Legal Services Authority against Chinna Gangaram for partition and separate possession and the Pre-litigation Case ended in compromise by allotting shares and pursuant to the award defendant Nos.1 to 5 applied to the revenue authority and obtained pattadar pass books and title deeds and their names were entered into pahani for the years 2012-13 in support of their claim on their owners and possessors. It is also averred that Ajjan Rajanna was pattedar and possessor of Ac.2-23 guntas in S.No.269/AA and Linganna and Poshetti are the sons of Rajanna, defendant Nos.6 to 8 are sons of Linganna and Defendant Nos.9 and 10 are sons of Poshetti and defendant Nos.6 and 8 to 10 filed P.L.C.No.708 of 2011 against defendant No.

for partition and therein a compromise award was passed pursuant to it their names were entered into revenue records and they obtained pahanis for the years 2012-13 as owners and possessors and the remaining defendant Nos.11 to 17 are the descendents of A.Peda Ganganna owned S.No.269/EE, Ac.2-22 guntas and out of the two sons, Narsaiah and Gnaneshwar of Pedda Gangaram besides illatum son of Rajayya, Plaintiff Nos.11 and 12, sons of Narsayya, Plaintiff Nos.16 and 17 are sons of Jnaneshwar, 13 to 15 are sons of Rajaiah. Respondents 11 to 17 filed P.L.C. No.707 of 2011 in which a compromise was entered by them and an award was passed in their names, upon which their names were entered in revenue records and pattadar pass books and pahanis show their names for S.No.269/EE as owners and possessors.

7(c) It is averred that being the owners pursuant to the above, the defendants 1 to 17 entered into development agreement with Defendant No.18 and 19 for converting the land into plots and defendant Nos.18 and 19 a huge amounts for development and due to exparte prohibitory injunction obtained by the plaintiffs, they are unable to execute the work and plaintiffs obtained the exparte injunction by suppression of facts without even prima facie case and balance of convenience and thereby sought for dismissal of the injunction application. Before the trial Court among Exs.P-1 to P-19 are the sale deeds referred supra right from the year 1990-1999 respectively for the plaint

schedule items 1 to 14 referred in the sale. It is as S.No.269 with specific boundaries correlating to the plaint schedule and Ex.P-20 is the consolidated map of 166 plots of the suit plaint schedule of Ac.9-30 guntas out of Ac.12-32 guntas in S.No.269 which they claimed as relates to S.Nos. 269/A, 269/U, 269/AA, 269/E and 269/EE respectively. 7(d) The respondents/defendants placed reliance on Exs.R-1 to R-38 viz., pattadar pass books and title deeds, Exs.R-1 to 34 pahanis of the year 2012-13 (Ex.R-35) pahani of the years 1965-66, 1980-81 and 1954-55 respectively (Exs.R-36 to 38 pahanis).

8) The trial Court with reference to the respective pleadings and the documents supra particularly from para No.7 and 8 while granting temporary injunction making absolute exparte ad-interim injunction dated 03.01.2013, on 22.04.2014 observed that the defendants/respondents in their counter admitted that the executants of the G.P.A 230/90, dated 15.10.1990 are the co-owners with the defendant Nos.1 to 17 for S.Nos. 269/A, 269/U, 269/AA, 269/E and 269/EE of Ac.12-32 guntas though denied existence of S.No.269 in saying it was sub-divided, the question of sub-divisions arises once there is a main No.269 from which they what deny, its existence but for to show sub-division of the survey number or any part of it and as such even in the sale deeds executed by G.P.A holders referred supra, sub-divisions mentioned but for main No.269. It cannot be said that the sale deeds not executed

or G.P.As not valid for once G.P.A admitted by them the G.P.A holders on behalf of the original owners executed the sale deeds covered by Exs.P-1 to P-7, 9 to 16, 18 and 19 for S.No.269 that was made into plots after any subdivisions in the plots are part of it that were converted by G.P.A holders before sell into plots of the land of Ac.9-30 guntas, out of Ac.12-32 guntas by making as 170 house plots naming the area as Ashok Nagar colony and the petitioners are purchasers respectively of the plots out of that S.No.

269 and whatever sub-division, it falls pursuant to the sales they are inducted into possession being the purchasers when raised constructions they got prima facie case and balance of convenience by holding that the contention of the defendants of the existence of the land is not there to have any title over the property under sale deeds is untenable and even they did not file the so called pre-litigation partition awards and that even among Exs.R-1 to R-38. Exs.R-1 to 34 are title deeds and pattedar pass books are 11 years subsequent to the G.P.A in favour of the vendors of the plaintiffs of the year 1990 and Ex.R-35 pahanis for the years 2012-13 is based on alleged Lok Adalat pre-litigation awards and even as per Exs.R-36 to 38 pahanis of 1965-66, 1980-81 and Khasra Pahani of 195455 show names of some of the executants of the G.P.

A of the year 1990 in showing their title to G.P.A thereby held the plaintiffs are entitled to the temporary injunction sought for against defendant Nos.

alignees from defendant Nos.1 to 17 by name Defendants 18 and 19 under so called development agreement.

9) Coming to the impugned order of the lower appellate Court in reversing the said temporary injunction granted by the trial Court with the reasons referred supra, the lower appellate Court observed more particularly from para Nos.4 to 9 that when survey No.269 does not exist on ground supra revenue record the so called persons executed the G.P.A are not the pattedars but co-owners along with others for S.Nos. 269/A, 269/U, 269/AA, 269/E and 269/EE of Ac.12-32 guntas and they have no right to execute G.P.A and Ex.P-8 without consent of other co-owners in the year 1990 and when the petition schedule plots were not exceeding on ground to say petitioners in possession the Exs.

P-1 to P-19 sale deeds are nothing but fictitious for even the plaintiffs' possession thereunder also in dispute by defendants apart from the defendants inter se obtained prelitigation lok adalat award in P.L.C Nos.706 to 708 of 2011 and their names entered in revenue records and they entered development agreement i.e., defendant Nos.1 to 17 with defendant Nos.18 and 19 who claimed invested huge amounts for development suffice to say the plaintiffs have no prima facie case or balance of convenience muchless suffered irreparable injury and mere non-filing of Lok Adalat awards have no relevance when pattedar pass books and title deeds are covered by Respondent Nos.

the trial Court under Exs.R-36 to 38 and that too when the revenue record show the land is agricultural land and not converted for development into house plots to believe the claim of the plaintiffs and when the executants of Exs.P-8 G.P.A are not shown as pattedars and possessors for S.Nos. 269/A, 269/U, 269/AA, 269/E and 269/EE, it cannot be said that they were in possession with right muchless they are G.P.A holders muchless they are vendees the plaintiffs.

10) From the above, the crucial aspect to be considered is the defendants 1 to 17 and their ancestors as well as the plaintiffs' vendors who alienated through G.P.A in favour of the plaintiffs were undisputedly common owners of the land in entirety covered by S.No.269, it is to be seen, when the S.No.269 was sub-divided and what extent out of which are covered by sub-divisions in the survey and subdivision by entering in the stonch plan is relevant to consider and that field measurement book or stonch plan and other revenue record in reference to the tonch plan is relevant with details of sub-division, besides any appointment of advocate-commissioner with measurement and demarcation and identification of plaint schedule extents with sub-divisions. Needless to say unless partition even oral, sub-division generally not to occur without request. As without S.No.269, the question of sub-division as 269/A, 269/U, 269/AA, 269/E or 269/EE or otherwise with alphabet does not arise is a common sense point of view as held by

the trial Court. No doubt in the case of joint owners or coparceners, there is a community of interest and unity of possession and any alienee's right in the case of undivided interest alienated is to seek for partition. Here the general power of attorney undisputedly in existence from the year, 1990 executed by other co-owners with defendant Nos.1 to 17 and their ancestors in favour of the persons who executed the sale deeds in the name of plaintiffs on behalf of the said co-owners or joint owners that too when the sale deeds speak specific extent with boundaries though subdivisions not mentioned but for main survey No.

269, any sub-divisions are part of main survey number and the boundaries in the case of any inconsistency or misdescription of survey number, will prevail thereby when boundaries prevail for identification of the property, that is alienated under the sale deeds within specific boundaries irrespective of mis-description of the survey number or without mention of sub-divisions, the remedy either of the plaintiffs or of the defendants, if no partition is no doubt is to maintain a suit for partition and of the plaintiffs herein for the specific boundaries of the extents purchased to claim equities. Here, that conclusion is not possible of no partition and only joint possession of all co-owners, for the reason of there is a subdivision.

any terms and to furnish security; that too, when it is the specific case of the plaintiffs that pursuant to the G.P.A of 1990 and sale deeds of the year 1999 they are in longstanding possession in claiming right and title to the property for atleast entitlement to equities in the event of any partition suit otherwise to claim adverse possession, if at all in a suit for injunction based on prior possession when the defendants could not show a better title than what the plaintiffs have muchless any material to disprove their possession.

Any inter se pre-litigation case and compromise for partition between the defendant Nos.1 to 17 or some of them and any award behind the back of the plaintiffs when no way bind the plaintiffs, but for to ignore unless a comprehensive suit for partition laid by anybody in the Court of law to work out the equities thereunder, that too pending suit when it is the duty of the Court to protect the subject matter of the lis instead of vacating the temporary injunction by reversing the order of the lower Court, the lower appellate Court should have by observing existing status-quo or by appointing any Advocate-commissioner or party-receiver entrusting the property as custodia legis pending suit with a direction to dispose of the suit as early as from the date of suit with exparte ad-interim injunction ripen and made absolute by the order of the trial Court that was in subsistence all through till the C.M.As were allowed by reversing the order of the lower Court.

11) Having regard to the above, it is just for this Court

while sitting in revision to direct the maintenance of the existing status-quo of the lower Court's temporary injunction order that was in existence till the lower appellate Court's order vacating the injunction to continue pending the suits without prejudice to the contest of both sides in the suit with a direction to the trial Court to obtain security bond from the plaintiffs in the event of non-success to make good any loss to any of the defendants and not to make any further improvements pending suit, to take up the trial of both the suits by giving preference and decide the lis preferably within six months from date of the receipt of this common order and uninfluenced by any of the observations of the trial Court or lower appellate Court or of this Court supra, but for on own merits, including to consider any necessity of commissioner appointment to identify the properties with reference to documents and stonch plan and with Mandal surveyor's assistance and by demarcation on ground or the like to lessen much oral evidence vide B.

Anil Kumar V. Nagasani Sri Ramulu of this Court in C.R.P. No.1733 of 2014 decided on 29.12.2014 and Dasari Laxmi V. Bejjanki Sathi Reddy of this Court in C.R.P No.76 of 2014 decided on 21.10.2014. Accordingly point No.i is answered. POINT No.

12) In the result, both the revisions are disposed of with the directions and by continuing the temporary injunction pending the suits. There is no order as to costs.

13) As a sequel, the miscellaneous petitions pending, if any, shall stand closed.

_______________________ Dr. B. SIVA SANKARA RAO, J 17th April, 2014 ksh