Allowed

Md. Yaseen v. Korpol Bala Mallaiah

Telangana HC14 Jul 2011CRP/4853/2010

Case brief

AI extract

What is this about?

This Civil Revision Petition challenged an interim injunction granted by the appellate court in a suit for specific performance. The court held that the plaintiff failed to prove a prima facie case of possession because the agreement lacked recitals of possession, boundaries were missing, and pahani patrikas were insufficient evidence given their nature. The injunction was discharged.

What did the court decide?

The appellate court order granting interim injunction was set aside and the trial court order dismissing the injunction application was restored.

Md. Yaseen Vs Korpol Bala Mallaiah — Specific Performance | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.4853 OF 2010

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DATED JULY, 2011

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BETWEEN

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Md.Yaseen and others. …Petitioners And Korpol Bala Mallaiah …Respondent

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.4853 OF 2010

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ORDER:

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The petitioners are the defendants in O.S.No.52 of 2009, a suit filed for specific performance of an agreement of sale dated 19.04.2005 (Ex.P.11), on the file of the learned Senior Civil Judge, Sangareddy. The plaintiff in the suit, the respondent herein, filed I.A.No.202 of 2009 therein seeking a temporary injunction against the defendants from interfering with the suit schedule property, an extent of land admeasuring Ac.1.00 guntas in Survey No.537 of Peddakanjarla Village, Patancheru Mandal, Medak District. By order dated 26.04.2010, the trial Court dismissed the said I.A.

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Aggrieved thereby, the plaintiff appealed in C.M.A.No.17 of 2010 before the learned Special Judge-cum-V Additional District and Sessions Judge, Medak at Sangareddy. The appellate Court, by order and decree dated 26.07.2010, reversed the decision of the trial Court and granted interim injunction as prayed for.

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Aggrieved thereby, the defendants in the suit are before this Court by way of the present Civil Revision Petition.

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The parties shall be referred to as arrayed before the trial Court. The case of the defendants was that the suit agreement of sale was a false and fabricated one. Defendants 1 and 2 further claimed that they had sold the suit schedule property to defendant 3 through registered sale deed bearing document No.1627/2008 dated 01.12.2008 (Ex.P.13/R.4). Defendant 3 was stated to be in possession and enjoyment of the land having raised millet, red gram and green

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gram crops. The possession of the plaintiff was therefore denied. They further alleged that the plaintiff had fabricated pahani patrikas for the years 2008-09 (Exs.P.10 and 12) and 2009-10 (Ex.P.9) in collusion with the Village Secretary and that the recitals therein to the effect that he was in possession of the suit schedule property were false.

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The plaintiff’s claim was, on the other hand, based on an unregistered document, styled as a ‘sale deed’ dated 19.04.2005 said to have been executed by defendant 1. It was his case that defendant 1 sold the suit schedule property for a sum of Rs.98,000/- as he was in need of the same for his daughter’s marriage. He further stated that though the document was named as a sale deed, it was in the nature of an agreement of sale as disclosed in the document itself, wherein defendant 1 undertook to execute a registered document as and when desired by the plaintiff. He further claimed that he was put in possession of the suit schedule property pursuant to the said agreement and that the pahani patrikas, Exs.P.9, P.10 and P.12, clearly demonstrated the same. It is his further case that defendant 1 failed to execute a registered sale deed as promised by him and that defendant 3, having secured a registered sale deed (Ex.P.13/ R.4) in his favour from defendants 1 and 2, started interfering with his possession over the suit schedule property. He claimed that he raised a cotton crop in the said land which was harvested by him. On these pleadings, he prayed for a temporary injunction against the defendants in the suit.

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Before the trial Court, the plaintiff marked 13 documents while the defendants entered 4 documents in evidence.

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Upon considering the material on record, the trial Court found that the plaintiff failed to establish a prima facie case and accordingly held against him. In appeal, the appellate Court, taking note of the fact that the execution of the suit agreement of sale was itself denied, rightly held that the case has to be adjudicated upon a full-fledged trial. Having stated so, the appellate Court then turned to the issue as to

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whether the plaintiff had proved his possession over the suit schedule property as on the date of filing of the suit. Relying upon the pahani patrikas, Exs.P.9, P.10 and P.12, which spoke in favour of the plaintiff, the appellate Court held that he was in possession of the suit schedule property as on the date of the suit. The appellate Court also recorded a finding that though the plaintiff approached defendant 1 for execution of the registered sale deed as he had received the entire sale consideration, he postponed the same on one pretext or the other and executed a registered sale deed in favour of defendant 3 under Ex.R.4/P.13. Needless to state, these findings were wholly unnecessary and premature at this stage of the proceedings, when the trial in the suit is yet to commence. On this basis, the appellate Court reversed the trial Court’s order and granted a temporary injunction to the plaintiff.

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Heard Sri M.Ram Mohan, learned counsel for the petitioners/defendants and Sri J.C.Francis, learned counsel on caveat for the respondent/plaintiff.

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Well settled is the legal position that grant of a temporary injunction pending the suit would depend upon three factors – (i) whether the plaintiff established a prima facie case; (ii) whether the balance of convenience was in his favour; and (iii) whether irreparable injustice would be done to the plaintiff if an injunction was denied. It was therefore necessary for the plaintiff to first establish his prima facie case. As pointed out by the trial Court, when the very execution of the suit agreement of sale (Ex.P.11) was in dispute, the burden was heavily upon him to establish that he had been put in possession of the suit schedule property for grant of an injunction. Pertinent to note, there is no clear recital in Ex.P.11 to the effect that the plaintiff was put in possession. Further, the suit schedule property was merely described by its extent as Ac.1.00 guntas and the details as to its boundaries do not find mention in the suit agreement of sale. The pahani patrikas relied upon by the plaintiff however showed that the

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extent of the suit schedule property was not Ac.1.00 guntas but only Ac.0.39 guntas. These facts weighed against the plaintiff in establishing his prima facie case. Further, the suit agreement of sale was said to have been executed in the year 2005 but the name of the plaintiff did not figure in the pahani patrikas of the years 2005-06 (Ex.R.1), 2006-07 (Ex.R.2) and 2007-08 (Ex.R.3). The appellate Court was not correct in its reading of Ex.R.2 as the said document clearly mentions the year ‘2006-07’. No explanation is forthcoming from the plaintiff as to why his name was not entered in the revenue records of the earlier years and finds mention only in the pahani patrikas of the years 2008-09 and 2009-10. In any event, except for the pahani patrikas of the years 2008-09 and 2009-10, there is no other document to support the plaintiff’s claim that he was inducted into possession of the suit schedule property. It is the case of Sri J.C.Francis, learned counsel, that it was only upon his client making an application that the mutation was carried out in the year 2008-09 and therefore, entries prior thereto could not be held against him. However, this Court cannot accept this argument as no document was produced to show that the plaintiff only applied for mutation on a particular date. Though the plaintiff claimed to have raised crops in the suit schedule property, no document was produced in support of the said claim such as bills, purchase invoices, expenditure accounts, etc.

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In such circumstances, the trial Court was right in holding that the plaintiff had failed to cross the very first hurdle of making out a prima facie case in his favour. Once he failed at the threshold, the question of considering the balance of convenience and the irreparable injustice, if any, arising out of not granting an injunction, did not arise. The appellate Court failed to examine the case in the proper perspective and erred in placing reliance upon the pahani patrikas as the sole basis for inferring that the plaintiff was put in possession. Pertinent to note, pahani patrikas are accounts showing the cultivation in a village and are issued under the Regulation of 1358 Fasli. They

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are not relatable to the record of rights maintained under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 (VELUPADAS VEERASWAMY V.NARASAIAH v. STATE OF A.P .^[1] ) . Therefore, no presumption as to validity of title would arise on the basis of mere pahani patrikas. The order and decree dated 26.07.2010 passed by the learned Special Judge-cum-V Additional District and Sessions Judge, Medak at Sangareddy in C.M.A.No.17 of 2010, are accordingly set aside and the order and decree dated 26.04.2010 passed by the learned Senior Civil Judge, Sangareddy, in I.A.No.202 of 2009 in O.S.No.52 of 2009 are restored.

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The Civil Revision Petition is allowed. CRPMP No.6450 of 2010 shall stand dismissed as infructuous in the light of this final order. No order as to costs.

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____________________ SANJAY KUMAR, J. _______ JULY, 2011. VGSR

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[1] 2007 (1) ALD 435

Md. Yaseen v. Korpol Bala Mallaiah

Case brief

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Md. Yaseen v. Korpol Bala Mallaiah

Case brief

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