Meerugu Leelavathi v. Borigam Rajaram

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition No.4788 of 2014 ORDER:

This is a Civil Revision Petition under Article 227 of the Constitution of India by the unsuccessful plaintiff/petitioner assailing the orders dated 09th September 2014 of the learned District Judge, Adilabad passed in C.M.A.No.6 of 2013 arising out of the orders and decretal orders dated 05.07.2013 of the learned Principal Senior Civil Judge, Mancherial of Adilabad District passed in I.A.No.1144 of 2012 in O.S.No.218 of 2012 filed by the plaintiff/petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure for a temporary injunction restraining the respondent/defendant, his family members, agents and servants etcetera from interfering with the plaintiff's/petitioner's peaceful possession and enjoyment of the land admeasuring Ac.2.36 guntas in Sy.No.102 situated at Naspur village of Mancherial Mandal, more fully described in the schedule annexed to the plaint and the said interlocutory application.

2. I have heard the submissions of Sri L.Ravi Chander, the learned senior counsel appearing for the petitioner/plaintiff ('the plaintiff', for short) and Sri Vedula Venkata Ramana, the learned senior counsel appearing for the respondent/defendant ('the defendant', for short). I have perused the material record.

3. The sole plaintiff brought the aforementioned suit against the sole defendant for a perpetual injunction in respect of the aforementioned property. The defendant is resisting the suit by filing a written statement. The plaintiff had also filed the interlocutory application for grant of a temporary injunction pending final disposal of the suit. The defendant having filed a counter affidavit resisted the said interlocutory application. During the course of enquiry before the trial Court, no oral evidence was adduced. However, exhibits P1 to P4 and exhibits R1 to R14 were marked.

On merits, the trial Court had allowed the application of the plaintiff and granted a temporary injunction in favour of the plaintiff and against the defendant as prayed for. The aggrieved defendant had preferred the Civil Miscellaneous Appeal in CMA No.6 of 2013 on the file of the District Judge, Adilabad. The learned District Judge, on merits had allowed the said appeal and had set aside the orders of the trial Court and dismissed the interlocutory application filed by the plaintiff for grant of a temporary injunction. Therefore, the plaintiff is before this Court.

4. The case of the plaintiff, in brief, is this: The plaintiff is the owner and possessor of the plaint schedule land.

She is in continuous and uninterrupted possession of the said property since last 38 years as on the date of filing of the suit. Recently, she had constructed a residential house after obtaining permission from the Secretary, Naspur village. The Gram Panchayat had also allotted house No.6-125/8 to the said house constructed by the plaintiff in the plaint schedule property. There used to be a small rice mill in the plaint schedule land. The plaintiff used to run the said rice mill bearing House No. 6-75. It's corresponding old Number is 4-61. The plaintiff had subsequently dismantled the said rice mill in the year 1985 and had constructed a new house adjacent to the old rice mill, i.e., in the plaint schedule property and that house was constructed over an area of 80 square yards approximately.

The remaining land is being used by the plaintiff as a courtyard. There is no water facility in the village. Therefore, the plaintiff is not cultivating the rest of the land and had kept it vacant. The said land is also in the possession and enjoyment of the plaintiff without any interruption from any quarter. The defendant is a realtor in the village and he is having money and muscle power. Since the rates of the lands in the village are very high and as the plaintiff is a lady, the defendant had developed an evil eye and is constantly trying to interfere with the peaceful possession and enjoyment of the plaintiff over the plaint schedule land. With the said intention, the defendant along with his men and supporters came to the suit land on 05.12.2012 and had tried to dispossess the plaintiff from the plaint schedule land.

activities of the defendant. She could retain her possession in tact over the plaint schedule land. While leaving the suit land, the defendant had openly challenged the plaintiff and had proclaimed to dispossess her from the plaint schedule land. Hence, having no alternative, the plaintiff had approached the Court and filed the suit for perpetual injunction and the instant application for a temporary injunction. If no orders of temporary injunction are granted, there is every likelihood of the defendant dispossessing the plaintiff from the property with the help of his supporters and in such an event, the plaintiff would suffer irreparable loss and the same would lead to multiplicity of proceedings and the very purpose of filing the suit for perpetual injunction would be defeated. The plaintiff has got prima facie case and the balance of convenience is also in her favour.

5. The case of the defendant, in brief, is this: The material averments in the plaint and the affidavit filed in support of the petition of the plaintiff are all false. The said averments are denied in toto. There is no cause of action for the plaintiff. The suit is devoid of merit. The plaintiff had suppressed material facts and came to the court with unclean hands. The plaintiff had not traced title to the plaint schedule property though she has claimed ownership and title to the plaint schedule property. Her claim of alleged ownership and possession are on the basis of hypothetical considerations without there being any substantive right and valid title. She has no title documents. Therefore, there is no foundation in the pleadings as to how the plaintiff had acquired right, title and interest to the plaint schedule property.

The plaintiff is put to strict proof that she is in continuous possession of the plaint schedule land for the last 38 years. The alleged ownership certificate said to have been issued by the Panchayat Secretary reveals that she has a house bearing No.6-125/8 situated within the limits of Gram Panchayat, Naspur. But the said certificate does not specify that the same relates to the plaint schedule land. The document filed by the plaintiff did not support the case of the plaintiff. The plaintiff had relied upon the certified copy of the alleged pahani for the year 2010-2011, which is said to have been issued by the Village Revenue Officer, Mancherial.

document and the said fact is evident from the face of the document. The said document, in any view of the matter, reveals the nature of the land as 'kharij khata', which means cultivable land, which is resumed by the Government when taxes were not paid. The said document also reveals that it is a laoni patta land. All these facts are contrary to the pleadings of the plaintiff. The plaintiff had neither filed the laoni patta, which allegedly stood in her name nor traced her title to show as to how she has acquired right, title and interest over the suit land. The present suit is filed in the month of December 2012 and except the extract of pahani, not even a single document is filed to show that the plaintiff is having possession of the suit land as on the date of the suit.

Nothing prevented the plaintiff from filing pahanies for all the 38 years as claimed by her along with the suit. The entries in the revenue records, which are unchanged fairly for a long period, will not be rebutted by some stray entries. The plaintiff had managed to have her name entered in the alleged pahani in collusion with the concerned Village Revenue Officer and the said document cannot be looked into. The plaintiff was and is never in possession and enjoyment of the plaint schedule property. She is not at all owner of the said land. The contrary allegations are false. The possession certificate issued by the Tahasildar on a perusal would show that it relates to 6-125/8 in Sy.No.102 and that the said land is an open land in an extent of Ac.2.36 guntas. If the land is an open land, no house number would have been assigned.

The said document shows that the plaintiff is in physical possession since 1994 whereas the plaintiff is claiming that she is in possession for over 38 years. The contents of the document are in conflict with the plaintiff's pleaded case. The plaintiff has not filed any documents to show her possession and existence of house or permission for construction of the house. The plaintiff had made malicious remarks in her affidavit and the same are defamatory in nature. In fact, on 01.10.2011, when one Merugu Mandi, the husband of the plaintiff, Merugu Sampath and others had tried to interfere with the property, this defendant had lodged a complaint with the police.

On receipt of the said complaint, the Sub Inspector of Police, Naspur had obtained permission from the Additional Judicial First Class Magistrate for making an enquiry into the matter.

addressed a letter to the Tahsildar, Mancherial as well as the Village Revenue Officer, Naspur requesting them to furnish details. The Tahsildar, Mancherial furnished pahanies of land in Sy.No.102 for an extent of Ac.14.08 guntas situated at Naspur village of Mancherial Mandal on 27.12.2011 showing the names of owners and possessors of the respective extents of lands, wherein the name of the plaintiff does not appear anywhere either as owner or possessor at any point of time. Therefore, the plaintiff is neither an owner nor possessor the plaint schedule land and her contentions are untenable. Upon the request of the police concerned, the Tahasildar, Mancherial had addressed another letter dated 04.01.2012 stating that the name of the respondent was recorded as owner for Sy.No.102/1 to an extent of Ac.0.

07 guntas of Naspur shivar of Mancherial mandal. The plaintiff had deliberately and intentionally concealed the material facts and approached the court with unclean hands. The alleged property tax receipt for the year 2008-09 said to have been issued by the Gram Panchayat, Naspur does not contain survey number and extent of property and there will not be any tax for the open land and the receipt without the signature of Panchayat Secretary is not valid and therefore, it has to be ignored. The alleged confirmation certificate dated 25.04.2008 said to have been issued by the Panchayat Secretary is totally an irrelevant document. The house ownership certificate dated 03.03.1990 reveals that the plaintiff has got own house bearing No.

675 within the limits of Gram Panchayat, Naspur, but, it does not reveal the extent and therefore, it cannot be looked into. The alleged receipt dated 24.06.1976 said to have been issued by the Gram Panchayat reveals that a sum of Rs.16/- was paid for the house bearing No.4-61 by one Mergu China Moni (husband of plaintiff) and it is surprising that having received the amount towards house construction, the concerned have mentioned the number of the house though it was not in existence by that time. One Khande Gopala Krishna purchased an extent of Ac.5.00 in Sy.No.102 from Gajelli Mallaiah on 03.10.

revenue authorities had also issued pattadar passbook in his name. In the year 2004 Khande Gopala Krishna sold an extent of Ac.1.00 out of his own land to this defendant under registered sale deed dated 15.07.2004 and the revenue authorities concerned have duly issued ROR proceedings in favour of this defendant. The said Gopala Krishna had also sold Ac.1.00 in favour o f Sri Venkateswara Enterprises represented by its Managing Partner Borigam Rajaram S/o Bheemaiah under registered sale deed dated 15.07.2004 and the property was mutated in the name of the said purchaser in the revenue records and ROR proceedings dated 10.03.2005 were issued. Therefore, the defendant is in physical possession and enjoyment of the plaint schedule land.

The defendant has subsequently divided the land into small pieces and sold it to various purchasers under several sale deeds and the plots purchased were mutated in the names of the purchasers and the said purchasers are in peaceful possession and enjoyment of the said properties. They had obtained construction permissions from the authorities concerned for construction of residential houses and they had duly constructed residential houses and are residing therein without any hindrance. The plaintiff has no prima facie case or balance of convenience in her favour and no irreparable injury would ensue, if injunction is not granted.

6. At the time of hearing, learned senior counsel for the plaintiff contended that the learned District Judge had erroneously allowed the appeal and had set aside the well considered orders of the trial Court and that the order impugned of the learned District Judge is not sustainable under facts and law and that the plaintiff had pleaded and established her case and also had satisfied the cardinal principles for grant of a temporary injunction and that the trial court, having considered the pleadings and documents of both the sides, had arrived at a correct conclusion and had granted a temporary injunction in favour of the plaintiff as prayed for and that without properly appreciating the facts and the documentary evidence, the learned District Judge had erroneously set aside the orders of the trial Court and had erroneously dismissed the application for temporary injunction filed by the plaintiff without

considering the fact that if temporary injunction as prayed for is not granted, the purpose of filing the suit would be lost and that the learned District Judge had failed to take note of the fact that the defendant has admitted that he had purchased only Ac.1.00 of land and he had divided the same into small pieces and sold it to several purchasers and that, therefore, the defendant is not in possession of the plaint schedule land and that the learned District Judge had failed to take note of the fact that if injunction petition is dismissed, the defendant would take advantage and would dispossess the plaintiff from the suit land and therefore, the learned District Judge ought not to have interfered with the well considered order of the trial Court and hence, the order impugned is liable to be set aside and the order of the trial Court deserves to be restored in the interest of justice.

7.

On the other hand, the learned senior counsel would contend that the plaintiff had failed to trace her title and had failed to state in the plaint as to how the plaintiff had acquired right, title and interest in the immovable property and that in the absence of any pleading as to how the plaintiff had acquired title to the property, mere filing of certified copies issued by the Panchayat Secretary or Gram Panchayat which have no evidentiary value is not sufficient to establish either possession or lawful possession and that the learned District Judge having considered the matter in a detailed manner had rightly found that the plaintiff had failed to establish a prima facie case, which is sine qua non for granting temporary injunction and had therefore, rightly set aside the orders of the trial Court by allowing the appeal and that the well considered orders of the learned District Judge do not brook interference.

The learned Senior Counsel had further pointed out that the trial Court had relied upon certain inadmissible and unmarked documents and that the plaintiff had miserably failed to prove her title incidentally or her lawful possession, which are necessarily to be proved in an application of this nature and that therefore, the order of the learned District Judge is sustainable, both under facts and in law.

8. Now, the points for determination are:

1. Whether the plaintiff had made out valid and sufficient

grounds and had established her lawful possession as on the date of the suit and at all relevant times over the suit land and had further satisfied the cardinal principles for grant of a temporary injunction in her favour and against the defendant as prayed for?

2. Whether the order of the learned District Judge which is impugned is liable to be set aside and the order of the trial Court is to be restored in the facts and circumstances urged by the plaintiff/revision petitioner?

9. POINTS 1 & 2:

9.1 The facts leading to the filing of the prevent revision and the contentions of both the parties and the submissions of the learned senior counsel for both the sides are already stated supra, in detail. The plaintiff having claimed to be the owner and possessor of the plaint schedule property, i.e., land admeasuring Ac.2.36 guntas in Sy.No.102 of Naspur village and having also pleaded that she had constructed a house in 80 square yards in that property had filed the suit for perpetual injunction and the present interlocutory application for a temporary injunction. The plaintiff had only filed four documents i.e., exhibits P1 to P4.

The plaintiff did not admittedly trace her title to the property and had not stated in the plaint or in the affidavit filed in support of the petition as to how she had acquired ownership, right, title and interest over the plaint schedule land which is considerably a large extent of Ac.2.36 guntas. The only relevant averment in the plaint is that the plaintiff was and is in possession of the plaint schedule land for over 38 years as on the date of the suit and that earlier there used to be a rice mill with door number 6-25 corresponding to old no.

for cultivating the same, but she is in enjoyment of the entire extent of Ac.2.36 guntas with the house therein in 80 square yards. 9.2 In the light of the above contentions, it is necessary to examine the contents of the documents and the evidentiary value of the documents filed by both the sides. Exhibit P1 is the house ownership certificate issued by the Panchayat Secretary, Gram Panchayat, Naspur certifying that the plaintiff is a resident of Naspur and she owns a house bearing D.No.6-125/8 within the limits of Gram Panchayat, Naspur. This document shows that the plaintiff is the owner of the said house as on 08.05.2012. Exhibit P2 is another such certificate issued by the Tahasildar, Mancherial dated 10.08.2010, wherein it was certified that the plaintiff was in physical possession of the house bearing No.6-125/8 in Sy.No.

102 and also of the open land of an area of Ac.2.36 guntas since 1994. In this very certificate, it is mentioned that the certificate is issued for the purpose of loan. Thus, in exhibit P1, it is stated that the plaintiff is the owner of the property as on 08.05.2012, whereas in exhibit P2, it is stated that the plaintiff is owner and possessor of the property since 1994. The law is well settled that neither Panchayat Secretary nor the Tahasildar are competent to issue ownership certificate and that no duty is enjoined upon them to issue such certificates of ownership. On what basis these certificates were issued is not borne out by these certificates.

What are the documents that were produced by the plaintiff for verification and what were the documents that were verified by the said officers at the time of issuance of exhibits P1 and P2 is ex facie not established. According to the plaintiff, the rice mill which existed in the plaint schedule property was originally having Door No.6-25 and its corresponding old number is 4-61 and that after dismantling the said rice mill a small house was constructed in 80 square yards and that the house was assigned Door No.6-125/8 by the Panchayat. However, exhibit P3, house tax receipt is in respect of house bearing No.7-21 and it was issued in the name of the plaintiff as per the house tax return register for the year 1994-95. Door No.7-21 is related to the house in the plaint schedule property is neither pleaded nor established prima facie.

24.06.1976 for the property bearing House No.4-61 and an amount of Rs.16/- was collected under the said receipt for sanction of the house plan. According to the plaintiff's contention before this Court, the old number is 461. It is not case of the plaintiff that a house property existed in the property even before construction of the old rice mill. Therefore, a sum of Rs.16/- was collected for sanction of house plan in the year 1976. When there is no house in the property, it is not explained as to how receipt has come to bear Door No.4-61. No document is filed to show that Dr.No.4-61 corresponds to H.No.6-75. Therefore, neither source of title was pleaded nor prima facie established.

None of the documents proved lawful and continuous possession of the plaintiff over the entire extent of suit land of Ac.2.36 guntas as on the date of filing of the suit. It is for the plaintiff to establish that she was and is in possession and enjoyment of the plaint schedule property as on the date of the suit and at all relevant times as pleaded by her. No co-relation document is filed to show that house nos.4-61, 7-21 and 6-125/8 belong to one and the same property. As per the building rules of the Gram Panchayat, a land of an extent of 1000 square yards can be considered as part and parcel of the same house if it is appurtenant to the house and any extent beyond 1000 square yards would be recognised only with reference to its survey number or any other number.

Even the contents of exhibits P1 to P4 are not even consistent and do not support the case of the plaintiff as pleaded. If really, there used to be rice mill in the very same plaint schedule property and the plaintiff used to run the same till it was dismantled, the plaintiff ought to have produced some record about the existence of a rice mill like the sanctioned plan for construction of rice mill, its licence etcetera. But, no such documentary evidence was produced. Even exhibit P4 is not in the name of the plaintiff and it is stated to be in the name of the husband of the plaintiff.

9.3 The documentary evidence under exhibits P1 to P4 apart, the plaintiff had got filed an affidavit of a third party by name, Gajjelli Mallaiah, who is said to be son of Bodaiah. According to the contents of this third party affidavit, one Gajjelli Bodaiah, the father of the deponent was the owner and

possessor of the suit land and for their family necessity, the said Bodaiah had sold the land admeasuring Ac.2.36 guntas in Sy.No.102 to the plaintiff about 38 years back and delivered possession of the land to the plaintiff and that thereafter, the plaintiff had constructed a rice mill and the plaintiff used to eke out her livelihood by running the said rice mill and that subsequently, the plaintiff had dismantled the rice mill and constructed a house adjacent to the rice mill and the remaining land is being used as court yard by the plaintiff and that since the date of the said purchase, the plaintiff is in peaceful, continuous and uninterrupted possession of the land. Be it noted that the plaintiff did not plead that she had purchased the property from Bodaiah about 38 years back.

Even in the third party affidavit, the date of purchase and under what documents such a purchase was made is not stated. Why the plaintiff had omitted to say in her pleadings what has been stated in the third party affidavit filed in support of her case could not be explained. Even in the third party affidavit, the boundaries of the property sold by Bodaiah to the plaintiff are not mentioned. If the plaintiff is in possession of Ac.2.36 guntas of land for over a long period of 38 years or so, there would be some continuous record like house tax receipts with door numbers or some such record like copies of pahanies or adangals, but no such record was produced by the plaintiff.

9.4 In this background, it is to be seen that it is specific contention of the defendant that Gajjelli Mallaiah S/o Bodaiah, who has given affidavit in favour of the plaintiff was original owner of the property and that he had sold the same to one Gopala Krishna under registered sale deed dated 03.10.1974. The said sale deed in urdu language along with its translated copy is marked as exhibit R1. Under this document, Gajjelli Mallaiah, who was said to be owner and possessor of Ac.5.00 of land in Sy. No.102 had sold the entire extent to one Khande Gopala Krishna. However, Gajjelli Mallaiah did not make a mention of this sale transaction in his affidavit. It is not the case of the third party Gajjelli Mallaiah in his affidavit that his family had sold Ac.2.36 cents of land, other than the land sold under exhibit R1. Admittedly, the third party did not state that his father executed a registered

sale deed in favour of the plaintiff and no valid document of title, if any, executed by the father of the third party by name Bodaiah in favour of the plaintiff was produced. Exhibit R2 is the ryotwari passbook issued in favour o f Krishna. Exhibit R3 is the pattadar passbook issued by the Revenue Department. The same on a perusal would show that the said Gopala Krishna purchased the property and he is the owner thereof. Exhibits R4 and R5 are the registered sale deeds executed by Gopala Krishna in favour of the defendant and his firm M/s. Venkateswara Enterprises. Under the said documents, Ac.1.00 of land each in Sy.No.102/1 within the specific boundaries as mentioned therein was sold.

These documents were executed on 15.07.2004.

The defendant had also obtained mutation proceedings, where under the properties purchased by the defendant were mutated in his name in the revenue records and proceedings were duly issued on 10.03.2005. The defendant had also made an application to the Panchayat for construction of a house and had obtained sanction orders on 13.5.2011 under exhibit R9. Exhibit R13, pahani copy, also discloses the ownership of the property by Gopala Krishna and that document also shows that thereafter, the property was mutated in the name of the defendant. The defendant had also produced the photographs under exhibit R11 which on a perusal would show existence of a small house, a newly constructed compound wall besides two shop rooms on the road side.

No third party affidavit is filed to show that there was interference by the defendant with the alleged possession of the plaintiff over the plaint schedule property. Thus, on an examination of the pleadings of both sides and the documents exhibited in juxtaposition, this Court is satisfied that the plaintiff had failed to establish a prima facie case, which is sine qua non and therefore, it follows that the plaintiff is not entitled to the temporary injunction as prayed for. The points are accordingly answered.

9.5 Having thus examined analytically the pleadings and the documentary evidence, this Court is satisfied that the order of the learned District Judge which is impugned is sustainable both under facts and in law and the said order does not brook interference.

10. Before parting with the case, it is to be noted that the learned senior counsel for the petitioner relied upon the following decisions. (i) D.Yadamma and Others v. G.Suryanarayana[1], Gaddipati Sambrajyam v. Panguluri Mahalakshmamma and ors[2] a n d G.Trinadha Swamy v. Gandham Satyanarayana[3]. In D.Yadamma's case (1 supra), the proposition laid down is to the following effect: 'As the suit land is a vacant land, and as it is not the case of the revision petitioners also that there are constructions therein the presumption under law that possession follows title has to be invoked.' Therefore, when the disputed property is a vacant site/house site without any constructions thereon, it can safely be presumed that the person having title is in possession of the property unless the contrary is proved and the presumption is rebutted.

In the case on hand, even according to the case of the plaintiff there is a construction in 80 square yards of site and, the plaintiff did not trace her title to the property and had failed to plead and ex facie establish her incidental title, if any, in respect of the subject property. Gaddipati Sambrajyam's case (2 supra) was relied upon in support of the proposition that affidavits can be permitted to be produced during the course of enquiry in the interlocutory applications and that the courts cannot examine the merits of the case closely while deciding the applications seeking temporary injunctions and that temporary injunction cannot be granted merely on the ground that a prima facie case is established. G.

Trinadha Swamy's case (3 supra) is relied upon in support of the following proposition: 'Law provides for drawing of presumption forward and backward, particularly in the context of possession. If the plaintiff is in a position to point out that, backed by his title, he is in possession of the property, up to a particular point of time, the same state of affairs deserve to be presumed in a forward direction. Such presumption must however stop, if it meets a road block, in the form of a more assertive and evident proof or probability of the defendant being in possession of the same property........

If as between the versions put forward by the plaintiff on the one hand, and the defendant on the other hand, the probability is more towards the plaintiff being in possession, court should not hesitate to grant the relief, and reject it, if it is otherwise.'

counsel for the respondent did not dispute the settled propositions of law but had only contended that in the facts peculiar to the case, the court below was right in dismissing the application of the plaintiff as the plaintiff had failed to establish the prima facie case, which is a sine qua non. Having regard to the reasons assigned and the findings recorded this court finds that the ratios in the decisions do not advance the case of the plaintiff/revision petitioner any further and that on the other hand, the ratios in the decisions are more favourable to the respondent/defendant.

11. The Civil Revision Petition is accordingly dismissed. No costs. Since the suit is of the year 2012, the trial Court is directed to dispose of the suit on merits and in accordance with the procedure established by law, however, as expeditiously as possible and preferably within four months from the date of receipt of a copy of this order.

Miscellaneous petitions, if any, pending in this revision, shall stand closed.

_____________________ M. SEETHARAMA MURTI, J 05th June 2015 RAR [1] 2008(3) ALD 605 [2] 1995(1) ALD 358 [3] 2006(4) ALD 781