Dismissed

Mrs. Phoola Rani Guptha, v. G. Raj Kumar

Telangana HC4 Dec 2012SA/1443/2010

Case brief

AI extract

What is this about?

This second appeal challenges the dismissal of a suit for permanent injunction and a revision petition. The court held that since the trial court found the plaintiffs were not in possession of the suit properties by the date of filing, they could not claim permanent injunction under settled principles, rendering the validity of the power of attorney execution secondary.

What did the court decide?

Second appeal and civil revision petition dismissed with costs.

Mrs. Phoola Rani Guptha, Vs G. Raj Kumar — Specific Performance | Telangana HC (2012)

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HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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S.A.No.1443 of 2010 and C.R.P.No.5926 of 2010

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COMMON JUDGMENT:

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The plaintiffs 1 to 7 who lost their litigation for permanent injunction in O.S.No.594 of 2001 on the file of Principal Junior Civil Judge, Ranga Reddy District and also on appeal in A.S.No.133 of 2009 on the file of First Additional District Judge, Ranga Reddy District, Hyderabad, are the appellants in the second appeal. There are A to G schedules in that plaint and each schedule consists of land of Ac.2.15 guntas of Balapur village, Saroor Nagar Mandal in various sub-divisions of S.No.145. Each of the plaintiffs claims to be in possession of one of the schedule properties. The appellants 1 to 3 and 5 to 6 filed another suit O.S.No.1740 of 2007 on the file of II Additional Senior Civil Judge, Ranga Reddy District in respect of the same schedule properties against V.Narasimha Reddy as defendant therein and pending disposal of the said suit, filed I.A.No.1522 of 2007 in that suit for interim injunction against the said V.Narasimha Reddy. The Senior Civil Judge allowed the petition and granted interim injunction pending

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that suit against V.Narasimha Reddy. Questioning the same, V.Narasimha Reddy/defendant in O.S.No.1740 of 2007 filed C.M.A.No.136 of 2008 in the lower appellate Court. Both the matters ie., A.S.No.133 of 2009 and C.M.A.No.136 of 2008 were disposed of by common judgment by the lower appellate Court. The lower appellate Court allowed C.M.A.No.136 of 2008 and vacated interim injunction granted by the Senior Civil Judge. As against that portion of the order in C.M.A.No.136 of 2008, the appellants 1 to 3 and 5 to 7 filed C.R.P.No.5926 of 2010 in this Court. The respondent in the revision petition is purchaser of the property from the respondents in second appeal. Therefore, subject matter in both the matters is one and the same. Decision in the second appeal governs revision petition also.

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2. There is no dispute that the plaintiffs/appellants are original owners of the schedule properties. The defendants/respondents purchased the schedule properties under various sale deeds Exs.B.3 to B.7 registered sale deeds from general power of attorney holders of the plaintiffs. Exs.B.1 and B.2 are general power of attorney deeds said to have been executed by the plaintiffs in favour

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of B.V.Subba Rao and G.Ranga Rao. The said power of attorney holders executed Exs.B.3 to B.7 registered sale deeds for the schedule properties in favour of the defendants.

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3. It is contended by Senior Counsel for the appellants that the defendants are claiming title to the schedule properties through the plaintiffs only and that when the lower appellate Court on the basis of opinion of finger print expert came to the conclusion that the plaintiffs did not execute Exs.B.1 and B.2 power of attorney deeds, the Courts below should not have refused to grant permanent injunction in

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favour of the plaintiffs.

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4. The Supreme Court in M.Kallappa Shetty v M.V.Lakshminarayana Rao^[1] held that the plaintiff in possession of the suit property, can on the strength of his possession resist interference from defendant who has no better title than that of the plaintiff and get permanent injunction restraining the defendant from disturbing his possession of the suit property. It is well settled principle of law that in a suit for permanent injunction, primary question to be addressed to and decided is the plaintiff’s possession of the suit property by the date of filing of the suit in the trial

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Court. It is only when the plaintiff satisfies the Court with the said primary requirement or ingredient, then the Court in a suit for permanent injunction, has to scrutinize whether the defendant against whom such plaintiff in possession of the suit property is claiming injunction, has better title to the said property than that of the plaintiff in possession. In case, the Court finds that the defendant has no better title to the suit property than that of the plaintiff in possession thereof, the Court will be justified in granting permanent injunction in favour of such plaintiff who is in possession of the suit property. In case, the defendant has got better title to the suit property than that of the plaintiff, the Court shall naturally refuse permanent injunction to the plaintiff inspite of he being in possession of the same property. If it is a case where the plaintiff failed to prove his possession of the suit property by the date of filing of the suit, then the secondary or subsidiary question as to who out of the two parties has got better title, becomes wholly unnecessary and irrelevant.

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5. In view of the said settled legal position, even if there is expert’s report Ex.X.30 of PW.7 that finger prints of the executants of general power of attorney deeds

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contained in finger print register of the Registrar’s office in which Exs.B.1 and B.2 were registered do not tally with admitted finger prints of the plaintiffs, it cannot have any bearing in case the plaintiffs were not in possession of the scheduled lands by the date of filing of the suit in the trial Court. Both the Courts below after scrutinizing pattadar pass books, revenue title deeds, pahanis and other revenue records produced by both the parties and also oral evidence, came to definite conclusion that the plaintiffs were not in possession of the scheduled lands by the date of filing of the suit. PW.4 who is the 5^th plaintiff categorically stated that one Srinivas and Company’s name was recorded in the revenue records for 5 plots of the scheduled property as owner and enjoyer. The finding of the Courts below that the plaintiffs are not in possession of the scheduled lands, which is a final finding of fact recorded by the lower appellate Court, is unassailable in this second appeal. In that view of the matter and in view of framing the suit as one for simple permanent injunction, the plaintiffs/appellants cannot claim permanent injunction against the defendants/respondents and their vendee who are in possession of the scheduled properties. I find no error or

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legal error in judgments of the Courts below; and I also do not find any substantial question of law for determination in this second appeal.

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6. In view of the conclusion arrived at by this Court in the second appeal, the same result follows in the revision petition also. Since the plaintiffs were found to be not in possession of the scheduled lands, it does not matter whether or not the sales in favour of the defendants were regularized by the Urban Land Ceiling Authorities in G.O.Ms.No.461 dated 26.03.2008 and endorsement dated 29.07.2010, as per additional evidence produced by the defendants/respondents in the appeal before the lower appellate Court.

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7. In the result, the second appeal as well as the civil revision petition are dismissed with costs.

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_____________________________ SAMUDRALA GOVINDARAJULU,J

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Dt. 4^th December, 2012. PNV

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[1] AIR 1972 SC 2299

Mrs. Phoola Rani Guptha, v. G. Raj Kumar

Case brief

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Mrs. Phoola Rani Guptha, v. G. Raj Kumar

Case brief

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