Dismissed

P.Anjaneyulu Gupta v. B.C. Janardhan Reddy

Telangana HC25 Aug 2014CMA/386/2014

Case brief

AI extract

What is this about?

This appeal challenged the trial court's refusal to set aside an interim injunction granted in an interim application concerning a property title dispute. The court upheld the lower court's order, finding that the appellants failed to prove their title while the petitioners demonstrated their rights.

What did the court decide?

The injunction order dated 30.01.2014 restraining the appellants from alienating the property is confirmed.

P.Anjaneyulu Gupta Vs B.C. Janardhan Reddy — Contract and Commercial Disputes | Telangana HC (2014)

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HON'BLE SRI JUSTICE K.C.BHANU AND

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HON'BLE SMT JUSTICE ANIS CIVIL MISCELLANEOUS APPEAL No.386 of 2014

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J U D G M E N T: (per Hon’ble Smt Justice Anis)

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This Civil Miscellaneous Appeal is filed under Order XLIII Rule 1(r) of the Code of Civil Procedure (for short ‘the Code’) against the order, dated 30.01.2014, passed by the Court of I Additional District Judge, Ranga Reddy District at L.B. Nagar, in I.A.No.1072 of 2013 in O.S.No.754 of 2013.

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2. The facts and circumstances giving rise to the filing of this Civil Miscellaneous Appeal are that the respondent Nos.1 to 3 herein filed O.S.No.754 of 2013 seeking declaration that the sale deeds bearing Nos.2928 of 2010 dated 19.04.2010, 6665 of 2010 dated 23.04.2010 and 6666 of 2010 dated 23.04.2010 are null and void and also to grant perpetual injunction restraining the appellants and other respondents herein from interfering with the Suit Schedule Property. Pending the suit, the respondent Nos.1 to 3 herein filed I.A.No.1072 of 2013 under Order XXXIX Rules 1 & 2 of the Code, seeking injunction restraining the appellants and other respondents herein, from alienating or creating any charges or encumbrances, over the petition schedule property and it was granted by the trial Court.

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3. The appellants herein are respondent Nos.14 and 15, respondent Nos.1 to 3 herein are the petitioners and respondent Nos.4 to 16 herein are respondents 1 to 13 in the above said Interlocutory Application. For the sake of convenience, the parties

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hereinafter will be referred to as they are arrayed in the said Interlocutory Application.

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4. For necessary disposal of the appeal, it is necessary to go through the brief averments made in the petition and counter filed in the Interlocutory Application.

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5. The brief averments made in the petition filed by the petitioners before the trial Court are as follows;

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The petitioners filed the suit in O.S.No.754 of 2013 against the respondents seeking the relief of declaration and perpetual injunction in respect of the plaint schedule property admeasuring Ac.6.20 guntas in Sy.No.69/Part of Miyapur village, Serilingampally Mandal, Ranga Reddy District, which is situated on the southern side of Manjeera Water Pipe-Line going through Sy.No.69 bifurcating it into two parts. Originally, one M.A. Baquar Khan, S/o Basith Jung was the owner of the entire land in Sy.No.69 besides many other lands of Miyapur village. The said M.A. Baquar Khan sold entire said land in Sy.No.69 of Miyapur village with specific boundaries to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, Kanakamamidi Chennaiah, Fakeer Mohammed @ Hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma in the year 1958 and inducted them into possession of the same. Subsequently, the said sale transaction was duly validated under Section 50(B) of Andhra Pradesh (T.A) Tenancy & Agricultural Lands Act, 1950, (for short ‘the Act’), by the competent authority and their names were implemented in the Revenue Records as pattadars and possessors. The above named purchasers acquired the said land jointly, under one sale transaction having equal shares. After death of some of the original purchasers leaving behind their respective legal heirs, they

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succeeded to their respective shares. Fakeer Mohammed @ Hakeem Mohammed died intestate leaving behind respondent No.6 and Mohd. Yousuf, who is the father of respondent Nos.8 to 10, as his legal heirs. Similarly, Talari Mallaiah died leaving behind two sons Talari Jittaiah and Talari Narsimha as his legal heirs. Talari Jittaiah died leaving behind respondent Nos.1 to 3 as his legal heirs. Similarly, Talari Narsimha died leaving behind respondent Nos.4 & 5 as his legal heirs. The surviving land holders along with legal heirs of the deceased land holders sold a major portion of land in Sy.No.69 on the North of Manjeera Pipe-Line to the employees of erstwhile Allwyn Factory and members of Samatha Co-operative Housing Society Limited in the shape of residential plots under a HUDA approved layout before 1995 and the said purchasers got constructed their houses through a common contractor and a residential colony has come up in the said land known as ‘Indira Reddy Nagar Colony’.

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In the year 1994, the land holders on getting the entire survey number surveyed by the authorities, learnt that the total extent of the land in Sy.No.69 is Ac.46.36 guntas on the ground and contrary to the said fact, only Ac.27.22 guntas was being recorded in the revenue records. So, they have initiated proceedings for correction of settlement error before the competent authority under Section 87 of the Hyderabad Land Revenue Act, 1317. Meanwhile, the said land holders kept disposing the balance land in Sy.No.69 to various purchasers. In the said process, they disposed of an extent of Ac.9.00 in Sy.No.69 located on the North of Manjeera Water PipeLine and another extent of Ac.6.20 guntas in sy.No.69 located on the south of said Water Pipe-Line to M/s. Samatha Co-operative Housing Society Limited through separate sale deeds on

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04.01.1997. The entire land in Sy.No.69 has been disposed of by its land holders long back. In so far as the entire land located on the south of Manjeera Water Pipe-line in Sy.No.69 of Miyapur village is concerned, it was sold by all the landlords of Sy.No.69 jointly to M/s. Samatha Co-operative Housing Society Limited under sale deed dated 04.01.1997. The said sale deed was executed by the sons of Talari Mallaiah, one of the original purchasers, namely Talari Jithaiah and Talari Narsimha, who are the vendors. Similarly, respondent No.6 was also the vendor. Under the said sale deed, the said Society was inducted into physical possession of the entire land sold under the said document, which is bounded on:

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North: By Manjeera Water Pipe Line passing through the Sy.No.69 of Miyapur village. South: By Eerlakunta Tank as well as by Sy.No.114 of Hafeezpet village. East: Sy.No.98 of Hafeezpet village. West: By Sy.No.23 of Madeenaguda village.

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Since the date of the sale transaction, Samatha Co-operative Housing Society Limited took the uninterrupted peaceful possession and enjoyment of the said property. In the proceedings initiated by their predecessors-in-title for correction of settlement error with regard to the extent of land, the District Revenue Officer of Ranga Reddy District, while accepting the error occurred in recording the extent of Sy.No.69, erroneously ordered for recording unaccounted excess land as Government Land by assigning sub-division number as Sy.No.69/1 instead of recording the said extent as part of Sy.No.69. Therefore, the purchasers-in-title of the petitioners challenged the said order before the Commissioner Appeals in proceedings No.P5/1597/2000. The said authority after due enquiry allowed the appeal by setting aside the erroneous orders of the

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District Revenue Officer vide its orders dated 13.06.2003 and remanded the matter to District Revenue Officer with specific directions. On such remand, the said authority caused re-enquiry in the matter and ultimately, passed orders on 05.06.2004 in proceedings No.A4/3619/2000 for recording the entire extent of Ac.46.36 guntas as part of Sy.No.69 of Miyapur village. Thereafter, their vendor i.e., M/s. Samatha Co-operative Housing Society Limited after receiving the sale consideration, registered the sale deed on 17.06.2004. Thus, the petitioners acquired absolute title to the entire property and are in possession and enjoyment of the same having constructed couple of rooms in the said property. The entire land in Survey No.69 of Miyapur village was being used as non-agricultural land and it is included in the master-plan. It is also stated by the first petitioner that Mohd. Yousuf, the other son of Hakeem Mohammed sold Ac.3.37 guntas of land forming part of Ac.6.20 guntas in Sy.No.69 situated on the Southern Side of Manjeera Pipe-Line in favour of petitioner Nos.2 & 3 on 22.01.1996 and 22.04.1996 and the petitioners have no conflict of rights in the Suit Schedule Property in between them.

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Petitioners stated that respondent No.11 and respondent Nos.12 & 13 filed suits O.S.Nos.1621 of 2008 and 1620 of 2008 on the file of the Additional Junior Civil Judge’s Court, Ranga Reddy District, claiming title for an extent of Ac.1.20 guntas and Ac.3.38 guntas in Sy.No.69 of Miyapur village under Agreement of Salecum-G.P.A dated 12.11.2008 and as the respondents 11 to 13 did not prosecute the suits, the same were dismissed for default. Thus, it is evident that respondent Nos.11 to 13 never acquired any valid title nor were ever in possession in any piece of the suit land and the documents in favour of respondent Nos.11 to 13 are sham and

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bogus and brought into existence by them. Petitioners stated that in the month of December, 2012, respondent No.14 tried to interfere with the peaceful possession of the petitioners over the suit schedule land. But, however, the petitioners resisted their attempts.

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The claim of respondent No.14 is that himself and respondent No.15 purchased the land under the registered sale deeds from respondents Nos.1 to 10 represented by respondent Nos.11 to 13. The petitioners have no knowledge about those sale transactions in favour of respondent Nos.14 & 15. Similarly, respondent Nos.12 & 13 executed another sale deed in favour of respondent No.15 in respect of an extent of Ac.1.39 guntas in Sy.No.69 of Miyapur village, which was registered as document No.6665 of 2010 dated 23.04.2010. Therefore, the respondent Nos.11 to 15 to usurp the petitioners’ land, tried to interfere with the peaceful possession of the petitioners. Petitioners stated that they have been in continuous peaceful possession and enjoyment of the Suit Schedule Property. When respondent Nos.14 & 15 once again came to the said land on 16.6.2013 along with their henchmen and antisocial elements and tried to forcibly occupy the suit property without any right, title or interest, the petitioners successfully resisted their attempts with the help of neighbours and well wishers.

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The petitioners issued a caution notice on 31.3.2013 in daily newspapers cautioning the general public not to enter any sale transactions with respondent Nos.14 & 15. A reply legal notice was also issued by the said respondents on 04.04.2013. The petitioners stated that as respondent Nos.11 to 13 have not acquired any valid title or were ever in possession of any piece of land in Sy.No.69 of Miyapur village, there arises no question of respondent Nos.14 & 15 acquiring any title. The respondents by suppressing the material

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facts are vigorously trying to create third party rights over the schedule property. The petitioners stated that the documents in favour of the respondents are bogus and fraudulent in nature. The petitioners are the owners of the Suit Schedule Property and petitioners have prima facie case and balance of convenience in their favour. They also stated that if the injunction is not granted, the respondents will try to interfere with their possession and enjoyment over the Suit Schedule Property and also alienate and create third party rights by executing bogus documents, hence prayed the Court to grant injunction in their favour.

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6. The brief averments made in the counter filed by respondent Nos.1 to 7 are as follows:

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The respondents stated that originally, seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, kanakamamidi Chennaiah, Fakeer Mohammed @ hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma purchased an extent of Ac.27.22 guntas of land in Sy.No.69 from Mohd. Pakeer Khan in 1958 and their sale transaction was validated under Section 50(B) of the Act vide proceedings No.8140 of 1996 dated 16.09.1996. Each one of them got Ac.3.38 guntas equally and their names were recorded as pattadars and possessors. The respondents 1 to 7 are the legal heirs of the original owners by name Talari Mallaiah and Fakir Mohammed. The respondents stated that neither themselves, nor their ancestors had alienated any part of the land in Survey No.69 to any person except respondent Nos.11 to 13 through A.G.P.A. The petitioners are claiming the Suit Schedule Property basing on false and fabricated documents alleged to have been executed by Talari Mallaiah and Fakir Mohammed. The respondents 1 to 7 succeeded the land from

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Talari Mallaiah and Fakir Mohammed, and their names were mutated in the revenue records vide proceedings B/55/2008 dated 30.12.2001 and also proceedings No.B/513/2007 dated 13.11.2009. The respondent Nos.1 to 7 being the owners of the property, executed A.G.P.A in favour of respondent Nos.11 to 13, but they have not received the sale consideration. Respondent No.13 issued a cheque under A.G.P.A. Respondent Nos.11 to 13 in turn, sold the property in favour of respondent Nos.14 & 15 and their names were also entered in the connected records. Respondent Nos.1 to 7 further stated that petitioners are never in possession of the Suit Schedule Property and prayed the Court to dismiss the petition with costs.

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7. The respondent Nos.9 & 10 filed memo adopting the counter filed by respondent Nos.12 & 13.

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8. The brief averments made in the counter field by respondent No.11 are as follows:

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Respondent No.11 stated that petitioners are not the owners and possessors of the Schedule Property and originally, the land belongs to M.A. Pakeer Khan, who in turn sold Ac.27.22 guntas in Sy.No.69 of Miyapur village, to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, kanakamamidi Chennaiah, Fakeer Mohammed @ hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma. Subsequently, their sale transaction was validated under Section 50(B) of the Act. The names of seven persons were entered as owners and possessors in the revenue records and the said holders sold part of the land in Sy.No.69 to Samatha Co-operative Housing Society Limited and the first petitioner has not purchased the land from Samatha Co-operative

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Housing Society Limited either under Agreement of Sale deed dated 31.10.2002 or under any sale deed dated 17.06.2004. Respondent No.11 filed O.A.No.1621 of 2008 against the first petitioner and also Samatha Co-operative Housing Society Limited and the same was dismissed for default. Subsequently, he sold the same to respondent No.14 through registered sale deed on 19.04.2010. Finally, the respondent stated that he purchased Ac.1.20 guntas in the part of Sy.No.69 from the legal representatives of Talari Mallaiah on 10.12.2008 and subsequently, sold the same to respondent No.14 through sale deeds in the year 2010 and since then, respondent No.14 is in possession of the land admeasuring Ac.1.20 guntas.

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9. The brief averments made in the counter filed by respondent Nos.12 & 13 are as follows:

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The respondents admitted that one Abdul Baquar Khan was the pattadar and possessor of Ac.27.22 guntas of land in Sy.No.69 of Miyapur village and he sold the same to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, kanakamamidi Chennaiah, Fakeer Mohammed @ hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma. Subsequently, they have validated their sale transactions under Section 50(B) of the Act and each one of them got rights in respect of Ac.3.38 guntas including Fakir Mohammed. Fakir Mohammed died on 21.02.1973 leaving behind his sons Md. Yousuf and Mohammed Shareef. They sold the land to Samatha Co-operative Housing Society Limited and obtained HUDA layout vide proceedings No.458/MP2/HUDA/91, dated 18.04.1991 and constructed a colony in the name of ‘Indira Reddy Colony’, which was developed. The Original land owners have sold various extents to various persons. In the year 1991,

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Mohammed Yousuf and Mohammed Shareef filed O.S.No.312 of 1991 for grant of perpetual injunction and also filed I.A.No.602 of 1992 not to alienate the schedule properties and I.A.No.985 of 1991 against the respondents therein, restraining from interfering with the land admeasuring Ac.4.00 guntas, which forms a part of Ac.27.22 guntas of land. The land covered by Samatha

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Co-operative Housing Society Limited is to an extent of Ac.24.00 guntas and after selling the said land to Samatha Co-operative Housing Society Limited, no land is left over, but the Society executed number of documents and created third party interests in the land in Sy.No.69 of Miyapur village. They executed hundreds of documents in the year 1992 to 2004 in respect of 56,400 Sq. yards. Execution of the agreement of sale and sale deeds in favour of the first petitioner by Samatha Co-operative Housing Society Limited will not convey any title or possession, since it was not left with any land after converting the entire land into housing plots. The vendors of first petitioner filed Writ Petition No.18810 of 1998 for a direction declaring respondent Nos.1 & 2 therein in interfering with the land admeasuring Ac.46.32 guntas of Sy.No.69 of Miyapur. The Hon’ble High Court accepted the contention of the petitioners and granted the relief sought by them while awarding exemplary costs of Rs.5,000/- to the respondents therein. The High Court held that the vendors of Samatha Co-operative Housing Society had no valid title and cannot sell the land in favour of the first petitioner. The petitioners are never in possession of the schedule property and they have no valid title. The respondents stated that they executed two registered sae deeds in favour of respondent Nos.14 & 15 on 23.04.2010, but they failed to make sale consideration except Rs.18,00,000/-. The petitioners and respondent Nos.14 & 15 have no right or title over the schedule property and they are not the

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absolute owners of the suit schedule land and finally prayed the Court to dismiss the petition.

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10. The brief averments made in the counter filed by respondent Nos.14 & 15 are as follows:

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The respondents stated that one Baquar Khan was the owner of the land in Sy.No.69 and in the year 1988, he sold the same to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, kanakamamidi Chennaiah, Fakeer Mohammed @ Hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma. Subsequently, they got authorities under Section 50(B) of the Act, and accordingly they got the revenue entries mutated. Fakir Ahmed died on 21.09.1973 leaving behind his two sons by name Md. Sharof and Md. Yousuf. Md. Yousuf died in the year 2003 leaving behind Md. Ansari and Mohd. Mahaboob. Elder son of Fakir Ahmed had only one son by name Mohammed and all of them succeeded to an extent of Ac.3.38 guntas in Sy.No.69. The legal heirs of Fakir Ahmed executed A.G.P.A in favour of respondent Nos.12 & 13 in respect of Ac.3.38 guntas in Sy.No.69 on 12.11.2008. Respondent Nos.12 & 13 in turn executed the registered sale deed in favour of respondent No.15 on 23.04.2010. Respondent Nos.12 & 13 also executed unregistered sale deed on 23.04.2010 in favour of respondent No.14. Respondent Nos.14 & 15 were given physical possession of Ac.1.39 guntas by respondent Nos.12 & 13 and also respondent Nos.6 to 10. Since then, they are in possession and enjoyment of the property. The respondents also stated that another share holder Talari Mallaiah died in the year 1972 leaving behind his two sons Talari Jithaiah and Talari Narsimha. Talari Jithaiah died leaving behind one Talari Yadagiri and Talari Shanker. Talari Narsimha died on 28.12.2002 leaving behind Leaving behind

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Talari Sagar and Talari Eshwar. All the legal heirs of Talari Mallaiah executed A.G.P.A in respect of Ac.1.20 guntas of land out of Ac.3.38 guntas under a registered sale deed on 12.11.2008 in favour of respondent No.11, who in turn executed a sale deed in favour of respondent No.14, in respect of Ac.1.20 guntas on 19.04.2010. Respondent No.14 was also given possession of the same by the legal heirs of Fakir Ahmed and Talari Mallaiah and they are enjoying the said properties. The revenue authorities also recognized their title and entered their names into the revenue records. The petitioners are not in possession of the property and they do not have any title over the property and therefore, prayed the Court to dismiss the petition.

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11. To prove the case before the trial Court, the petitioners got marked Exs.P1 to P54, while the respondents got marked Exs.R1 to R67 on their behalf by consent. No oral evidence was adduced by either party.

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12. The trial Court after considering the documentary evidence available on record, granted ad-interim injunction in favour of the petitioners against the respondents. Aggrieved by the said orders, the Respondent Nos.14 & 15 filed the present appeal.

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13. The learned counsel appearing for the appellants/ respondent No.14 & 15 argued that the suit filed by the respondent Nos.1 to 3/petitioners is not maintainable for cancellation of the sale deeds of the appellants and for permanent injunction as they failed to file the suit for declaration of their title to the Suit Schedule Property and petition for grant of temporary injunction against the alienation or creating of encumberance does not fall within the scope of the suit, where the prayer is for cancellation of the sale deeds. It is

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also argued that further, the respondents have claimed permanent injunction against the appellants for their interference with the alleged possession. Since the relief of declaration of title of the respondents is not prayed for in the main petition, the Court ought not to have granted temporary injunction against the appellants for alienation or creating encumberance over the suit schedule land. It is also argued that in this case, a detailed enquiry is required for title of the parties and the suit is also barred by limitation as it is filed beyond three years from 19.04.2010 and 23.04.2010, and the trial Court failed to appreciate the evidence on record and failed to give proper findings about the prima facie case and existence of balance of convenience and likelihood of irreparable loss to the respondent Nos.1 to 3/petitioners. It is further argued that the order under appeal is unsustainable in law. Further, till the sale deeds in favour of the appellants are cancelled by the Court of law, they are deemed as valid. Therefore, the petition for grant of temporary injunction is not maintainable, so as long as the respondent Nos.1 to 3/petitioners are not seeking the relief of declaration of title. It is also argued that the trial Court granted temporary injunction erroneously contrary to the evidence on record and keeping in view the scope of the suit, the Court below ought not to have granted temporary injunction, whatsoever.

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14. On the other hand, the learned counsel appearing for respondent Nos.1 to 3/petitioners argued that respondent Nos.1 to 3/petitioners are the absolute owners and possessors of the land to an extent of Ac.6.20guntas in Sy.No.69/part of Miyapur village and it is situated on the southern side of Manjeera Water Pipe-Line going through Sy.No.69 bifurcating it into two parts. It is also argued that originally, M.A. Baquar Khan was the owner, pattadar

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and possessor of the entire land in Sy.No.69 of Miyapur village. The said owner of the land sold the land admeasuring Ac.27.22guntas to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, Kanakamamidi Chennaiah, Pakeer Mohammed @ Hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma in the year 1958 and their sale transaction was duly validated under Section 50(B) of the Act by the competent revenue authorities and their names were implemented in the revenue records as pattadars and possessors. M/s.Samatha Co-operative Housing Society Limited purchased the land admeasuring an extent of Ac.6.20guntas through two separate sale deeds dated 04.01.1997. The said land is situated on the southern side of the Manjeera Water Pipe-Line. It is also argued that the land holders of Sy.No.69 sold the entire land long back. All the land owners including their legal heirs sold the said land to M/s.Samatha Co-operative Housing Society Limited. Since then, the respondent No.1/first petitioner purchased the land under an Agreement of Sale on 31.10.2002 and he was inducted into possession of the said land and later, a regular conveyance deed was executed on 17.06.2004. Since then, the respondent No.1/first petitioner was in possession of the Suit Schedule Property. It is also argued by the learned counsel for respondent Nos.1 to 3/petitioners that one of the share holders by name Md. Yousuf, who is the son of Hakeem Mohammed, executed two sale deeds in favour of petitioner Nos.2 & 3 in respect of Ac.3.37 guntas on 13.12.1996. As respondent Nos.1 to 3/petitioners were not having any dispute inter-se in between them, they amicably settled the matter between them and are in peaceful and uninterrupted possession over the entire suit property in Sy.No.69. It is also argued that respondent Nos.11, 12 & 13 filed O.S.Nos.1621 & 1620 of 2008 on the file of the Additional Junior Civil Judge, Kukatpally,

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Ranga Reddy District. Respondent Nos.1 to 3/ petitioners and other purchasers-in-title i.e., Samatha Co-operative Housing Society Limited are claiming that they are the owners of the Ac.1.20 guntas and Ac.3.38 guntas in Sy.No.69 of Miyapur village. Both the suits were dismissed and they also filed petitions I.A.Nos.1376 & 1374 of 2008 seeking temporary injunctions against respondent Nos.1 to 3/petitioners and Samatha Co-operative Housing Society Limited and after due enquiry, the said Court passed orders on 12.03.2009, dismissing both the applications filed by respondent Nos.11 to 13. The learned counsel appearing for respondent Nos.1 to 3/petitioners also argued that the appellants/respondent Nos.14 & 15 are claiming title from respondent Nos.11 to 13, who does not have any right, title over the Suit Schedule Property with a view to grab the said valuable land, they tried to interfere with the possession in December, 2012. Therefore, the petitioners filed the suit and the trial Court rightly granted injunction in their favour restraining the appellants/respondent Nos.14 & 15 and others from alienating the Suit Schedule Property to the third parties and prayed the Court to dismiss the appeal.

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15. Now, the points that arise for consideration to decide this appeal are as follows:

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1. Whether the appellants/respondent Nos.14 & 15 have made out any case to set aside the orders passed in I.A.No.1072 of 2013 in O.S.No.754 of 2013 or not?

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2. Whether the respondent Nos.1 to 3/petitioners have made out any prima facie case and balance of convenience in their favour or not?

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3. To what relief?

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16. Perusing the pleadings, documentary evidence and after

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hearing the arguments of both sides, there is no dispute of the fact that one M.A. Baquar Khan was the original pattadar and owner of the land in Sy.No.69 to an extent of Ac.27.22 guntas situated in Miyapur village of Serlingampally Mandal, Ranga Reddy District and in the year 1958, he sold the said land to seven persons namely Nimmala Shankaraiah, Peddaramani Balaiah, Kanakamamidi Chennaiah, Pakeer Mohammed @ Hakeem Mohammed, Konda Swamy, Talari Mallaiah and Golla Rajamma. Subsequently, the said seven persons have validated their sale transactions under Section 50(B) of the Act as per the proceedings in 8140 of 1966, dated 16.09.1966. Subsequently, a survey was conducted in respect of Sy.No.69, wherein it was found that total extent of the land was Ac.46.32 guntas and thereby, an extent of Ac.19.14 guntas was found excessive. Originally, the revenue authorities recorded that the land belongs to the Government and the same was challenged, ultimately, as per the orders of the Commissioner of Land Revenue, D.R.O, it was held that the excess land of Ac.19.14 guntas belongs to Sy.No.69 of Miyapur village.

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17. The main contention of the respondent Nos.1 to 3/ petitioners is that the surviving land holders and the legal heirs of the deceased land holders have sold an extent of Ac.6.20 guntas in Sy.No.69, which is bounded with East - Sy.No.98 of Hafeezpet, West - Sy.No.23 of Madeenaguda, South - Eerlakunta Tank & Gazzetted Officer’s Colony & North - Manjeera Pipe Line road, under a sale deed dated 04.01.1997-Ex.A19. Initially, the sale deed was assigned P9/P7 and after payment of deficit stamp duty, regular registration No.2514 of 2004 was assigned. On 17.06.2004, the said Samatha Co-operative Housing Society sold the Suit Schedule Property in favour of petitioner No.1. Petitioner Nos.2 & 3

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are also claiming Ac.3.37 guntas of the Petition Schedule Property, but as there was no dispute between them inter se, they filed the suit and obtained the temporary injunction. Petitioners 2 & 3 are claiming their title under Exs.P21 & P22. Ex.P21 is the certified copy of the registered sale deed dated 22.01.1996, executed by Md. Yousuf in favour of the second petitioner. Ex.P22 is the certified copy of the registered sale deed executed by Md. Yousuf alienating Ac.3.37 guntas of land forming part of the Suit Schedule Property. The said Md. Yousuf is one of the legal heirs of Fakir Ahmed.

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18. The learned counsel appearing for respondent Nos.1 to 3/petitioners specifically argued that Fakir Ahmed and Talari Mallaiah also joined in executing the sale deed in favour of Samatha Co-operative Housing Society Limited and as such, the legal representatives of Fakir Ahmed and Talari Mallaiah have no right, title or possession in any extent of the Schedule Property. A perusal of Ex.P19 shows that the surviving land holders and legal heirs of the deceased land holders jointly sold the Suit Schedule Property admeasuring Ac.6.20 guntas in Sy.No.69, which is situated at south of Manjeera water pipeline, in favour of Samatha Co-operative Housing Society.

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19. The burden of proof lies on respondent Nos.1 to 3/ petitioners to prove the prima facie case and also that there is balance of convenience in their favour and that if injunction is not granted they will suffer irreparable loss and injury. It is well settled principle that in order to obtain an order of injunction, the respondent Nos.1 to 3/petitioners have to prove prima facie case. The question of considering the balance of convenience and irreparable loss and injury to the party, would not be material at all. A perusal of Ex.P19 coupled with other documents proves the prima facie case of the

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petitioners.

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20. On the other hand, the appellants/respondent Nos.14 & 15 contended that the surviving land holders and some of the legal heirs of the deceased land holders never executed sale deed in favour of Samatha Co-operative Housing Society Limited and as such, the Samatha Co-operative Housing Society Limited has not acquired any title or possession in respect of the Suit Schedule Property. It is also argued that Samatha Co-operative Housing Society Limited sold the entire extent of land to various persons. Therefore, no land was left over to Samatha Housing Co-operative Society Limited to alienate the same in favour of respondent Nos.1 to 3/petitioners.

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21. The specific case of the appellants herein is that the legal heirs of Fakir Ahmed executed registered General Power of Attorney on 12.11.2008 in favour of respondent Nos.11 & 12 and they in turn, executed registered sale deeds on 23.04.2010 in favour of Respondent Nos.14 & 15. Similarly, the legal heirs of Talari Mallaiah have succeeded to Ac.3.38 guntas and executed A.G.P.A dated 12.11.2010 to an extent of Ac.1.20 guntas in favour of respondent No.11, who in turn, executed the registered sale deed in favour of respondent No.15 on 19.04.2001. Respondent Nos.14 & 15 got their names mutated in the revenue records. It is also contended by the appellants herein that the legal heirs of Fakir Ahmed sold the entire land to an extent of Ac.3.31 guntas to respondent Nos.14 & 15, and the land belonging to Talari Mallaiah to an extent of Ac.1.20 guntas to respondent No.15. The main document relied by the respondent Nos1 to 3/petitioners is Ex.P19, which is a registered sale deed dated 04.01.1997. On the other

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hand, the appellants/respondent Nos.14 & 15 disputed the said document and contended that it is created and none of the seven share holders or their legal representatives executed Ex.P19.

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22. Admittedly, out of the seven share holders, five share holders have not raised any dispute. So far as Ex.P19 is concerned, it was executed for an extent of Ac.6.26 guntas of land in favour of M/s. Samatha Co-operative Housing Society Limited. It is also argued by the learned counsel for appellants/respondent Nos.14 & 15 that the names of Talari Narasimha and Mohammed Ashraf were added as 11^th and 12^th vendors and their names were written in ink, where as the other names of the vendors were typed. Admittedly, it is not the case of the appellants/respondent Nos.14 & 15 that Ex.P19 is a created document by respondent Nos.1 to 3/petitioners. Whether the names of Talari Narasimha and Mohammed Ashraf were written in ink or typed, it does not make any difference as long as both of them have executed the documents. Once the registered document reported to have executed by all the share holders, the genuineness of the said document cannot be doubted. Admittedly, the legal heirs of Talari Narasimha and Mohammed Ashraf never disputed Ex.P19 sale deed in favour of Samatha Co-operative Housing Society Limited.

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23. Admittedly, the vendors of the appellants/respondent Nos.14 & 15 filed the suits in O.S.Nos.1621 & 1620 of 2008, on the file of the Additional Junior Civil Judge’s Court, Kukatpally, Ranaga Reddy District, against the first petitioner and Samatha Co-operative Housing Society Limited, claiming that they have purchased the property from the legal heirs of Fakir Ahmed and the legal heirs of Talari Mallaiah. But, for the reasons best known to them, both the

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suits were dismissed. So far as the plea of limitation is concerned, it cannot be decided in the injunction petition and it has to be decided in the suit after taking the oral and documentary evidence into consideration.

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24. The burden of proof lies on the petitioners to prove the prima facie title and possession over the Suit Schedule Property. As per Ex.P19, petitioners made out the case that Samatha Co-operative Housing Society Limited has purchased Ac.6.26 guntas of land from the original owners and they purchased the same from M/s. Samatha Co-operative Housing Society Limited under Ex.P22. It is not the case of the legal heirs of Fakir Ahmed and Talari Mallaiah that partition was affected among the seven persons by metes and bounds and Fakir Ahmed and Talari Mallaiah got Ac.3.38 guntas of land each with definite specific boundaries. Therefore, the question remains to be established is that the legal heirs of Fakir Ahmed and Talari Mallaiah able to sell the land in favour of the appellants or its General Power of Attorney Holders. The claim of the appellants herein is basing on Exs.P23 & P24 i.e., Agreement of Sale-cumGeneral Power of Attorneys dated 12.11.2008. It is not proved by the appellants herein, as to how the vendors of Exs.P23 & P24 have got right in the land in Sy.No.69. Therefore, executing any sale deed in favour of respondent No.11 will not convey any title or possession to respondent No.11. Once the title of vendors under Exs.R23 & R24 is not established, respondent No.11 will not get any title or possession over the Suit Schedule Property. The appellants/respondent Nos.14 & 15 failed to establish

¶62

their case, as to how they got title in respect of the Suit Schedule Property, through A.G.P.A, which will not convey any right or title in favour of respondent No.11, and thereby the sale deeds executed

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by respondent No.11 in favour of respondent No.14 will also not confer any right or title to the appellants/respondent Nos.14 & 15.

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25. The documentary evidence produced by the appellants/ respondent Nos.14 & 15 failed to establish that respondent Nos.1 to 5 got a right in respect of the schedule property and hence, they got executed A.G.P.A in favour of respondent Nos.12 & 13. Therefore, the claim of the appellants/ respondent Nos.14 & 15 that that they derived the title over the Suit Schedule Property from respondent Nos.12 & 13, who in turn got the property from respondent Nos.1 to 5 cannot be believed. Therefore, the said document relied on by the appellants/respondent Nos.14 & 15 will not carry any weight. Admittedly, the Suit Schedule Property is a vacant site and both the parties are claiming right over the same. The documentary evidence relied on by the respondent Nos.1 to 3/petitioners proved not only the prima facie case, but also balance of convenience over the Suit Schedule Property, having purchased from Samatha Cooperative Housing Society Limited and another, who were having valid title, and that if the injunction is not granted, irreparable loss will be caused and as such they are entitled for injunction restraining the appellants and other respondents herein, from alienating or creating any charges or encumbrances, over the petition schedule property.

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26. For the aforesaid reasons, we are of the view that the findings of the Tribunal are based on the documentary evidence on record, which needs no interference by this Court and that the appellants herein have not made out any case to allow the appeal. Any observation made in this judgement, is only for the purpose of disposal of this appeal and therefore, uninfluenced by any observation, the trial Court shall dispose of the suit in accordance

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with law

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27. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the order and decree, dated 30.01.2014, passed in I.A.No.1072 of 2013 in O.S.No.754 of 2013, on the file of the I Additional District Judge, Ranga Reddy District at L.B. Nagar. No order as to costs. The miscellaneous petitions, if any, pending in the Civil Miscellaneous Appeal, shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______ JUSTICE ANIS

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Date: 25.08.2014 sr

P.Anjaneyulu Gupta v. B.C. Janardhan Reddy

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P.Anjaneyulu Gupta v. B.C. Janardhan Reddy

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