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Andhra High Court · body

2003 DIGILAW 369 (AP)

B. Joseph v. Rustom Gew Irani

2003-03-07

C.Y.SOMAYAJULU

body2003
C. Y. SOMAYAJULU, J. ( 1 ) SINCE both these revisions arise out of a common order, they are being disposed of by this common order. ( 2 ) C. R. P. NO. 5733 of 2002 arises out ofcm. A. No. 71 of 2001, which arose out of the order in I. A. No. 133 of 2001 in O. S. No. 208 of 2001. C. R. P. NO. 5809 of 2002 arises out of the order in C. M. A. No. 72 of 2001, which arose out of the order in I. A. No. 48 of 2001 in o. S. No. 23 of 2001. Since parties to C. R. P. No. 5733 are the same as in C. R. P. No. 5809 of 2003, except for the fact that there is one more revision petitioner in C. R. P. No. 5809 of 2003, I would herein after refer to the parties as they are arrayed in C. R. P. No. 5809 of 2002. ( 3 ) REVISION petitioners who arepetitioners/plaintiffs in I. A. No. 48 of 2001 in o. S. No. 23 of 2001 are the appellants in c. M. A. No. 72 of 2001. Revision petitioners 1 and 2 are the respondents/defendants in i. A. NO. 133 of 2001 in O. S. No. 208 of 2001. O. S. No. 23 of 2001 was filed by the revision petitioners seeking a decree of perpetual injunction restraining the respondent from interfering with their peaceful possession and enjoyment of a open plot measuring 600 Sq. yards, in Ward No. 25, Block No. 4, survey No. 71 of Kadipikonda village, herein after referred to as the suit property, alleging that Miss Mahar Banoo and Miss shirin Bai, through their power of attorney kaikhusroo, sold that property to the second revision petitioner under Ex. P-17 agreement of sale dated 28-12-1973, and put him in possession thereof, and that he subsequently settled the same on the 2nd revision petitioner under Ex. P-18 registered settlement deed dated 12-11-1998, after obtaining permission from the Urban Land ceiling Authority, under Ex. P-18 and thus they have been continuously in peaceful possession and enjoyment of the suit property and have been using the same as play ground-cum-assembly and prayer premises for the students of the 3rd revision petitioner school being run by the 2nd revision petitioner. P-18 and thus they have been continuously in peaceful possession and enjoyment of the suit property and have been using the same as play ground-cum-assembly and prayer premises for the students of the 3rd revision petitioner school being run by the 2nd revision petitioner. Respondent who has no title or interest therein, is trying to interfere with their peaceful possession and enjoyment thereof, and filed I. A. No. 48 of 2001 in the said suit seeking a temporary injunction to restrain the respondent from interfering with their possession and enjoyment over the suit property and obtained an order of ex parte injunction. ( 4 ) THE case of the respondent in brief, isthat his paternal grandfather Samurai Gew irani who immigrated to India had purchased about 25 acres of land in a single block in S. Nos. 64, 70, 71, 72 and 73 kadipikonda village, which now is a part and parcel of Kazipet Town, and constructed residential houses and shopping complex in that land near the main road leading to Hyderabad from kazipet and consequent on the death of his paternal grandfather, he and others became his legal heirs. From out of the above land of 25 acres about 12 acres in S. Nos. 64 and 70 was sold as house plots, and about Ac, 5. 20 gts. in S. No. 71 was acquired by the government for A. P. S. R. T. C. Bus Station and Bus Depot at Kazipet. Subsequently, second revision petitioner brought into existence a document in the name of his son, as if his son Anil Anthony, purchased land in S. No. 70, which is adjacent to S. No. 71 [where the suit property is situated] from one P. Venkatanarayana who has no right or title in any part of that land. Therefore, l. G. C. No. 6 of 1993 was filed against Anil anthony, in respect of that land. Second revision petitioner acted as the Power of attorney of his son Anil Anthony in that case. Subsequently in pursuance of a compromise, when 2nd respondent on behalf of his son Anil Anthony paid rs. 2,00,000/-, the said L. G. C. was withdrawn. Second revision petitioner acted as the Power of attorney of his son Anil Anthony in that case. Subsequently in pursuance of a compromise, when 2nd respondent on behalf of his son Anil Anthony paid rs. 2,00,000/-, the said L. G. C. was withdrawn. Taking advantage of the fact that respondent, who has been managing the suit property and other properties, was away at Mumbai, revision petitioners, basing on false and forged agreement of sale and other self-serving created documents, filed O. S. No. 23 of 2001 and obtained orders of ex parte injunction against him in respect of the suit property by making false representation and started construction of a compound wall around the suit property under the guise of the order of ex parte injunction. Immediately after returning from mumbai and after coming to know about the ex parte injunction and the 2nd revision petitioner constructing a compound wall under the guise of the order of ex parte injunction, he filed O. S. No. 208 of 2001 against revision petitioner 1 and 2 and obtained an injunction against them in i. A. No. 133 of 2001. ( 5 ) BOTH parties adduced affidavit anddocumentary evidence in the trial court. Trial court permitted cross-examination of the deponents to the affidavits. After considering the evidence on record, the court below dismissed I. A. No. 48 of 2001 and allowed I. A. No. 133 of 2001. Aggrieved thereby, revision petitioners preferred c. M. A. Nos. 71 and 72 of 2001 before the ii Additional District Judge, Warangal, who by the common order impugned in the revisions, dismissed the appeals. Hence these two revisions. ( 6 ) THE main contention of Sri Kokaraghava Rao, learned counsel for the revision petitioners, is that since the reports of the Commissioners, appointed by the trial court and this court, clearly show the existence of compound wall, and since admittedly the compound wall was constructed by 2nd revision petitioner, there is prima facie evidence to establish possession of the revision petitioners over the suit plot of 600 Sq. Yds. , and so both the courts below were in error in holding against the revision petitioners. Yds. , and so both the courts below were in error in holding against the revision petitioners. It is his contention that in a petition filed under Order 39 Rule 1 CPC the question of title, when there is prima facie evidence of possession is available, is unnecessary and so the courts below instead of going into the truth, validity and genuineness of Ex. P-17 at this interlocutory stage, ought to have held that revision petitioners are entitled to the injunction in view of their prima facie possession. It is also his contention that since respondent is not and cannot be in possession of the suit property in view of the injunction against him, the question of granting an injunction in his favour does not arise. The main contention of Mr. J. Prabhakar, learned counsel for respondent, is that the concurrent finding of the Courts below, based on cogent reasons that Ex. P-17 agreement of sale relied on by the revision petitioners is not genuine, cannot be interfered with by this Court exercising revisional jurisdiction, and since none of the documents produced by the revision petitioners establish their possession over the suit property prior to the date of filing of the suit both the courts below rightly held that revision petitioners are not entitled to an injunction in their favour. It is his contention that merely because 2nd revision petitioner, on the basis of the ex parte interim injunction obtained by him when the respondent was away from Station, was able to construct a compound wall it does not mean that he has possession over the suit property. It is also his contention that since the suit property is a vacant land prima facie title has relevance because, the presumption in case of vacant land is possession follows title. It is his contention that since Ex. P-17 agreement does not confer title on 2nd revision petitioner, question of his conveying title to 1st revision petitioner under Ex. P-18 does not and cannot arise. ( 7 ) EX. P-1, a letter addressed by thesecond revision petitioner to the Regional joint Director of School Education informing that the management of the school provided the amenity of play ground on lease basis, and Ex. P-18 does not and cannot arise. ( 7 ) EX. P-1, a letter addressed by thesecond revision petitioner to the Regional joint Director of School Education informing that the management of the school provided the amenity of play ground on lease basis, and Ex. P-2 proceeding of the Regional Joint director of School Education, granting permission for opening X Class during 1994-95 are of little help to revision petitioners, because there is nothing in them to show that the suit property either belongs or is in possession of the revision petitioner. Exs. P-3 and P-4 are the returned notices got issued by the second revision petitioner to the respondent and his co-owners, seeking specific performance of the agreement allegedly executed in favour of the second revision petitioner. Those notices admittedly are not served either on the respondent or any other addressee. The contention of the respondent that second revision petitioner, with a view to create evidence deliberately sent those notices to a wrong addresses prima facie, appears to be true in view of the addresses mentioned on Ex. P-6 and P-7 returned envelops. In Ex. P-6 the address of the respondent is shown as "h. No. 1-171 kazipet, Warangal". In Ex. P-7 the address is shown as kazipet, Warangal without house number or door number, and very significantly the address of the respondent is shown as House No. 1-3-179, Main road, kazipet in the plaint in O. S. No. 23 of 2001. So, it is clear that Exs. 3 and 4 notices were not sent to the correct address of the respondents. So the notices are of no use for deciding the petitions. Ex. P-8 order of the special Officer and Competent Authority under Urban Land Ceilings, Warangal, passed under Section 26 (1) of the Urban land (Ceiling and Regulation) Act, 1976, informing the 2nd revision petitioner that it does not wish to exercise the first option to purchase land in S. No. 71 measuring 600 sq. Yds. , is of no help to establish the title of 2nd revision petitioner, more so because 2nd revision petitioner admittedly does not have a sale deed in his favour and Ex. P-17 agreement, even if true, does not confer or convey the title of the executant of Ex. P-17 to the 2nd revision petitioner. So even if 2nd revision petitioner wants to alienate the property covered by Ex. P-17 agreement, even if true, does not confer or convey the title of the executant of Ex. P-17 to the 2nd revision petitioner. So even if 2nd revision petitioner wants to alienate the property covered by Ex. P-17 agreement, the sale deed has to be executed by the executants of Ex. P-17 only, but not by the 2nd revision petitioner alone. Very significantly 2nd revision petitioner did not even produce the office copy of the application to the Competent Authority to enable the Court to find out if he enclosed any document to show his title to the property. Exs. P-9 to P-11 relate to payment of stamp duty and penalty to validate ex. P-17 agreement of sale. Mere payment of deficit stamp duty and penalty by a holder of an insufficiently stamped agreement does not convey title to the agreement holder. Title can be conveyed only by a registered document in respect of property worth rs. 100/- and more Ex. P-12, endorsement of the Municipal Corporation showing that an application and plan for construction of a building submitted by the 1st revision petitioner were received, is of no help to the revision petitioners because Ex. P-12 does not show that the application for construction was in respect of suit property. It cannot also relate to the suit property because it is dated 10-8-2000 and as per ex. P-18 the settlement deed in favour of 1st revision petitioner in respect of suit property was made on 12-11-2000. So 1st revision petitioner, in anticipation, could not have applied for construction in suit property under Ex. P-12. Similarly there is nothing in ex. P-13 and Ex. P-14 to show that they relate to the suit property. Exs. P-15 and 16 are clippings of paper reports. They also have no relevance to establish the title of the revision petitioners. Ex. P-17 is the agreement of sale in favour of 2nd revision petitioner in respect of the suit property. Ex. P-18 is the settlement deed executed by the second revision petitioner in favour of the first revision petitioner in respect of the suit property. Ex. P-19, a copy of the pahani, shows that Miss Mahar Banoo and miss Shirin Bai are the pattadars of the vacant land in S. No. 71. Ex. P-20 is the permission to construct compound wail dated 9-1-2001. Ex. Ex. P-19, a copy of the pahani, shows that Miss Mahar Banoo and miss Shirin Bai are the pattadars of the vacant land in S. No. 71. Ex. P-20 is the permission to construct compound wail dated 9-1-2001. Ex. P-21 is the power of attorney executed by the first revision petitioner in favour of the second revision petitioner. Ex. P-23 dated 24-8-2001 is the certificate issued by the Municipal corporation that vacant land bearing municipal No. 25-4-363/1 stands in the name of first revision petitioner. ( 8 ) THE fact that Municipal Corporationgranted permission to construct a compound wall on 9-1-2001 to the 1st revision petitioner under Ex. P-20, and that ex. P-23, which is issued subsequent to the suit, show that 1st revision petitioner is the owner of vacant plot No. 25-4-363/1, per se does not show the ownership of 1st revision petitioner over the suit property. It is well known that merely because the local body grants permission to construct, or mutates the name of an individual in its register, as owner, such proceedings by themselves do not confer title on the person, nor can those proceedings be treated as document of title. In fact condition No. 13 in Ex. P-20 states that the permission granted is not evidence of title. It is obvious that 1st revision petitioner on the basis of Ex. P-18 Settlement deed must have got mutated her name in the corporation record and on that basis Ex. P-18 settlement deed must have got mutated her name in the corporation record and on that basis Ex. P-23 certificate might have been issued. Ex. P-18 is executed by 2nd revision petitioner in favour of 1st revision petitioner. So, unless 2nd revision petitioner has title to the property covered by Ex. P-18 he cannot convey title to 1st revision petitioner. Ex. P-17 is the source of title of 2nd revision petitioner. Even assuming that ex. P-17 is true, it being an unregistered document does not convey title to 2nd revision petitioner. So 2nd revision petitioner cannot convey any title to 1st revision petitioner under Ex. P-18. Therefore, 1st revision petitioner does not have prima facie title to the suit property. ( 9 ) BOTH the Courts below concurrentlyfound that Ex. P-17 prima facie is not a genuine document. So 2nd revision petitioner cannot convey any title to 1st revision petitioner under Ex. P-18. Therefore, 1st revision petitioner does not have prima facie title to the suit property. ( 9 ) BOTH the Courts below concurrentlyfound that Ex. P-17 prima facie is not a genuine document. This court exercising jurisdiction under Section 115 CPC should not normally upset or interfere with the concurrent finding of fact in interlocutory matters. Prima facie I find no grounds to upset or interfere with the finding of the both court below, who, after detailed discussion and cogent reasoning, gave a concurrent finding that Ex. P-17 is not genuine. If Ex. P-17 is not taken into consideration there is no other evidence on record to show the possession of 2nd revision petitioner over the suit property. So revision petitioners do not have a prima facie case. ( 10 ) IT is no doubt true that title may notbe very relevant when a person in possession seeks an injunction in respect of the property in his possession. The facts in the case prima facie show that the revision petitioners, without being in possession of the property only on the basis of Ex. P-17, which prima facie is held to be not genuine and other documents brought into existence obtained ex parte injunction in respect of the suit property. From the report of the commissioner appointed in the trial Court it is easy to see that the compound wall must have been constructed under the guise of the order of ex parte injunction. Respondent, who has prima facie title, subsequently, filed another suit and obtained injunction against revision-petitioners 1 and 2. The report of the commissioner appointed by this court shows that portion of compound wall was demolished. When the circumstances show that revision petitioners came into possession of the suit property under the guise of ex parte injunction obtained by them against the respondent and constructed a compound wall, if the contention of the learned counsel for the petitioners that such possession by itself entitles the revision petitioners seeking the order of injunction being made absolute were to be accepted, it tantamounts to the Court putting a seal of approval of the high handed acts of trespassers and preventing the lawful owner from entering into his property by driving them to file a suit for possession. It is well known that the act of Court should harm none. In fact, if by the act of Court any harm or injustice is caused to a party, it is the duty of the Court to rectify the mistake and correct the error and restore the status quo ante. That was what was exactly done by the courts below. Revision petitioners, who were not in possession of the suit property on the date of the suit filed by them and who obtained ex parte injunction on created documents, are not entitled to the interim injunction sought. Respondent, who is the lawful owner, is entitled to an injunction against the revision petitioners 1 and 2, who have neither title to nor possession over the suit property. Therefore, I find no merits in these petitions. ( 11 ) IN the result, both the revisionpetitions are dismissed with costs. The trial court is directed to dispose of both the suits as expeditic -sly as possible, at any rate within a period of six months from the date of receipt of a copy of this order, uninfluenced by the findings given in this order and in the order of the courts below.