Dismissed

B. Ramachander v. The District Collector, R.R. District

Telangana HC5 Dec 2012SA/692/2011

Case brief

AI extract

What is this about?

In this second appeal against a decree setting aside a permanent injunction, the Supreme Court held that the lower appellate court correctly dismissed the suit for failure to prove possession. The Court found no procedural violation under Order XLI Rule 2 CPC as the ground of non-possession was evident from plaintiffs' own evidence, and no fresh impleader was required.

What did the court decide?

The Second Appeal was dismissed.

B. Ramachander Vs The District Collector, R.R. District — Property and Title | Telangana HC (2012)

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THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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Dated: Wednesday, the 5^th day of December, 2012

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SECOND APPEAL No. 692 OF 2011

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Between:

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B.Ramachander and another. … Appellants/Respondents

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And

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The District Collector, Ranga Reddy District Hyderabad and two others. …Respondents/Appellants.

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THE HONOURABLE SRI JUSTICE SAMUDRALA

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GOVINDARAJULU

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SECOND APPEAL No.692 OF 2011

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JUDGMENT:

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The plaintiffs are the appellants. They filed the suit in the trial Court for perpetual injunction restraining the defendants from interfering with the plaint schedule property on the ground that they are protected tenants and possessors of the suit land. The suit land consists of 2016 sq.yards in S.No.25 of Bobbuguda Village, Balanagar Mandal, Ranga Reddy District. The defendants are revenue officials of Ranga Reddy District as well as Hyderabad District. There was difference between the defendants who are revenue officials of two different Districts on the aspect of location that the suit land is in S.No.128/1 of Yousufguda Village, Khairathabad Mandal, Hyderabad District. The trial Court decreed the suit and on appeal by the defendants, the lower appellate Court allowed the appeal and set aside the decree granted by the trial Court. The lower appellate Court held that the plaintiffs 1 and 2 are not in possession of the suit land and therefore are not entitled for permanent injunction in their favour. It was also observed by the lower appellate Court that the exercise made by the trial Court for localizing the suit land through Joint Court Commissioners from Survey Departments of both the Districts,

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was not proper as no consent of Collectors of both the Districts was obtained before the said exercise.

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2. In this appeal, it is contended by the appellants’ counsel that both the above grounds on which the lower appellate Court allowed the appeal are untenable in law. No doubt, when the petition was filed by the defendants who included Collector, Ranga Reddy District as well as Collector, Hyderabad District, for appointment of Court Commissioner for localizing the suit land, it tantamounts to giving consent by the said collectors for the survey exercise undertaken by the two Joint Commissioners appointed by the trial Court, even if the law prescribes such prior consent.

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3. The substantial question of law sought to be raised by the appellants’ counsel is based on Order XLI Rule 2 CPC which reads as follows:

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“2. Grounds which may be taken in appeal.-The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule:

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Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.”

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It is contended by the appellants’ counsel that the lower

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appellate Court should have put the plaintiffs notice of the grounds on which the said Court non suited the plaintiffs and should have given sufficient opportunity of contesting the case on those grounds, as contemplated by proviso to Rule 2. The lower appellate Court came to the conclusion that since the plaintiffs are not in possession of the suit property after having sold the same under Ex.A1 agreement for sale-cum-General Power of Attorney, they are not entitled for permanent injunction. The question whether the plaintiffs are in possession of the schedule land or not is the primary question to be decided in a suit for permanent injunction. There is no question of the Court or the lower appellate Court putting the plaintiffs to notice of the said ground and niceties relating to the said ground. I n M.Kallappa Setty v. M.V.

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Lakshminarayana Rao^[1] , the Supreme Court held that in a suit for permanent injunction, the primary question to be decided is whether the plaintiff has been in possession of the suit property by the date of filing of the suit and that if the said fact is proved, then the second or secondary question is whether the defendant has got better title to the suit property than that of the plaintiff. When possession is the primary consideration in a suit for permanent injunction, it is for the plaintiffs to plead and prove the said primary requirement. The lower appellate Court did not put the plaintiffs to surprise by any new ground. The plaintiffs themselves filed Ex.A1 agreement for sale-cum-General Power of Attorney and pleaded the same in the plaint also. Therefore, this is not a

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new ground on which the lower appellate Court non suited the plaintiffs. The substantial question of law based on Order XLI Rule 2 CPC sought to be raised by the appellants’ counsel, does not stand to scrutiny in this Second Appeal. 4. It is contended by the appellants’ counsel that in case the lower appellate Court came to the conclusion that it was not the plaintiffs, but it was their General Power of Attorney holder-cum-Agreement holder who is in possession of the suit land, then the lower appellate Court should have exercised power under Order I Rule 10 CPC and impleaded the General Power of Attorney holder as eo nomine party to the suit. The plaintiffs filed the suit being represented by the General Power of Attorney holder. When it is the General Power of Attorney Holder and not the plaintiffs, who is said to be in possession of the suit property, even if General Power of Attorney holder is impleaded, he has to satisfy the mandatory requirement of several provisions of law for seeking a relief against the defendants/respondents who are government servants and District Collectors representing the State. Therefore, the lower appellate Court is right in not invoking Order I Rule 10 suo moto. I find no error much less legal error committed by the lower appellate Court in allowing the first appeal on the ground that the plaintiffs are not admittedly in possession of the suit property. I find that no substantial question of law arises for decision in this Second Appeal.

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In the result, the Second Appeal is dismissed.

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____________________________

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SAMUDRALA GOVINDARAJULU, J

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Dt:05-12-2012. KVS

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THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

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SECOND APPEAL No. 692 OF 2011