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2004 DIGILAW 681 (AP)

Ambem Nadpi Sailoo v. Premlatha Mathi

2004-07-13

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS appeal against order is filed by the plaintiffs in O. S. No. 96 of 2003 on the file of the Senior Civil Judge, at Nizamabad, aggrieved by the order dated 4-12-2003, passed in LA. No. 442 of 2003, in that suit. ( 2 ) THE suit was filed for the relief of declaration of title and consequential injunction, in respect of Ac. 1. 30 guntas of land in Sy. No. 2457 of Arsapally Revenue Village, Nizambad District. The claim of the appellants is based on adverse possession. They also filed I. A. No. 442 of 2003, under Order 39, Rule 1 C. P. C. , for grant of temporary injunction. Through the order under appeal, the Trial Court dismissed the I. A. ( 3 ) THE appellants contend that late Ambam Yellappa, the father of Appellants 1 and 2, was the tenant in respect of Ac. 17. 10 guntas of land, owned by the family of Vishwanath Tulla, in various survey numbers, including Sy. No. 2457. It is their case that late Yellappa filed an application under Section 32 of the A. P. (Telangana Area) Tenancy and Agricultural Lands Act, (for short "the Tenancy Act") before the Tahsildar, Nizamabad, for necessary protection to his possession. The application is said to have been dismissed by the Tahsildar through his order dated 12-6-1981. Thereafter, Viswanath Tulla filed O. S. No. 22 of 1991 for possession of lands in all the survey numbers, except the one in Sy. No. 2457. Consequent on the decree passed in that suit becoming final, the possession of the lands in other survey numbers was recovered. It is their case that the land in the said survey number continued to be in possession of Ambem Yellappa, and after his death the appellants herein. In support of their claim, appellants filed the extracts of revenue records, in particular, the pahanis. ( 4 ) THE respondents are the successors in interest and title of Vishwanath Tulla. According to them, the land in Sy. No. 2457 was never in possession of Yellappa. It is stated that late Vishwanath did not feel the necessity to include the land in that survey number in O. S. No. 22 of 1991, since he was already in possession of that land. According to them, the land in Sy. No. 2457 was never in possession of Yellappa. It is stated that late Vishwanath did not feel the necessity to include the land in that survey number in O. S. No. 22 of 1991, since he was already in possession of that land. They pleaded that the original owner Vishwanath was issued pattadar passbooks and title deeds by the revenue authorities, and he has been in continuous and uninterrupted possession of the land. It is also their case that the entire land of Ac. 17. 10 guntas, in all the survey numbers, was fenced and the land in Sy. No. 2457 has no access from anywhere. ( 5 ) SRI M. S. Ramachandra Rao, learned Counsel for the appellants submits that the appellants have placed unimpeachable evidence before the Trial Court, to establish that they are in possession of the suit schedule property as on the date of the filing of the suit and several years anterior thereto. He submits that the pahanis continuously for the years 1993 till 2003, were placed before the Trial Court but no reference has been made to them. It is also his case that the Trial Court did not notice one important fact, viz. , that no relief was claimed in respect of the land in Sy. No. 2457 in O. S. No. 22 of 1991, and unless it is shown as to how the respondents have gained the possession of the land, a presumption needs to be drawn in favour of the appellants. He has referred to be pleadings to contend that the respondents admitted the possession of the appellants. ( 6 ) SRI Vilas Afzul Purkar, learned Counsel for the respondents, on the other hand, submits that way back in the year 1981, the Tahsildar, Nizamabad, declared that Ambem Yellappa was not in possession of the entire extent of Ac. 17. 10 guntas. He also contends that Vishwanath Tulla did not feel the necessity to seek recovery of possession of the land in Sy. No. 245 7, because, it was always in his possession. He has also referred to the pattadar pass book, issued in respect of the suit schedule property, in favour of the respondents as well as various steps taken by them to protect their possession. No. 245 7, because, it was always in his possession. He has also referred to the pattadar pass book, issued in respect of the suit schedule property, in favour of the respondents as well as various steps taken by them to protect their possession. ( 7 ) THE appellants filed the suit for declaration of title on the basis of their alleged continuous, uninterrupted and adverse possession, in respect of the suit schedule property. Claiming to be in possession of the property, they have also filed an application under Order 32, Rules 1 and 2 C. P. C. While considering such application, the Trial Court is required to satisfy itself as to existence of prima facie case and balance of convenience. Though proof of possession is an important aspect, for the purpose of granting relief claimed in the present suit, the finding at the stage of considering the application, under Order 39, Rule 1 C. P. C. , relating to possession, need not be absolute. It would be sufficient if a prima facie finding is recorded. ( 8 ) THE appellants pleaded that their predecessors-in-title late Ambem Yellappa was in possession of the suit property since last several decades, and after his death, they are continuing in possession. They filed pahanis for the years 1985-86 to 2002-2003. They are Exs. A-1 to A-16, A-23 to A-25, A-31 and A-32. On the other hand, the respondents relied upon the order passed by the Tahsildar, Nizamabad, in an application filed under Section 32 of the Tenancy Act, filed by late Yellappa and the decree in O. S. No. 22 of 1991. Reliance is also placed upon the pattadar passbooks, in respect of the suit schedule property. These documents are marked as Exs. B-10, B-15, B-18, respectively. Though the parties have filed other documents, it will be sufficient, if the documents referred to above are taken into account. ( 9 ) AS observed above, at this stage the Court has to see as to whether the applicants can be said to be, prima facie in possession of the suit schedule property. The pahanis referred to above, disclose that the appellants are in possession of the suit schedule property. Such evidence can be rebutted by any other stronger material. The fact that the respondents were issued pattadar bassbook can support their claim for title. The pahanis referred to above, disclose that the appellants are in possession of the suit schedule property. Such evidence can be rebutted by any other stronger material. The fact that the respondents were issued pattadar bassbook can support their claim for title. By itself, the pattadar passbook, does not vouch for subsequent possession. It depends on the acts and omissions of the parties. ( 10 ) THE respondents contend that the Tahsildar recorded a specific finding that late Yellappa was not in possession of the entire land in Ac. 17. 10 guntas. If the matter ended there and the respondents claim possession over the entire extent, on the strength of that finding alone, things would have been different. However, it is a matter of record that late Vishwanath Tulla, filed O. S. No. 22 of 1991, seeking recovery of possession of the said Ac. 17. 10 guntas, except the suit schedule property. In the counter-affidavit filed in the I. A. , the respondents sought to justify that exclusion, by stating that the suit schedule property was in the midst of the rest of the property, and for that reason, it was not included. This, in a way, suggests that late Yellappa was in possession of the entire extent of Ac. 17. 10 guntas, and proceedings were initiated for recovery of possession for the entire land, except the suit schedule property. Whatever be the justification for non-inclusion of the suit land in Sy. No. 2457 in O. S. No. 22 of 1991, the respondents owe an explanation to the Court as to how they have recovered possession of that piece of land, once they admit that it was in the possession of late Yellappa at some point of time or the other. In Ganapuram Bramaramba v. Anneparthy Anantharamaiah, 2004 (2) ALD 718 , this Court took the view that the presumption arising out of a particular fact touching on possession can operate both forward as well as backward. ( 11 ) A reading of the order under appeal discloses that the Trial Court did not address itself to the pahanis for the last several years up to the date of filing of the suit. It has undertaken discussion mainly in relation of Exs. B-10 and B-16. In an application for temporary injunction, the pahanis for the relevant point of time play a crucial role. It has undertaken discussion mainly in relation of Exs. B-10 and B-16. In an application for temporary injunction, the pahanis for the relevant point of time play a crucial role. This Court is prima facie convinced that the appellants are entitled for temporary injunction, pending the disposal of the suit. Any further discussion on the matter is likely to have, its impact on the future adjudication. Even while granting temporary injunction, the interests of the respondents are also need to be protected. ( 12 ) HENCE, the C. M. A. is allowed, and consequently an order of temporary injunction, in respect of the suit schedule property, in favour of the appellants herein, is granted, subject, however to the condition that: (A) The appellants shall not have any right to have access to the suit land, through the lands of the respondents, in other survey numbers. (B) The appellants shall not alienate, encumber, or otherwise alter the physical features of the land, till the disposal of the suit. (C) The appellants shall not take any steps that would cause hindrance to the possession and enjoyment of the respondents, vis-a-vis the land in other survey numbers around the suit schedule property. (D) The Trial Court shall endeavour to dispose of the suit within six months from the date of receipt of this judgment. The issue as to possession, over the suit land, shall be dealt with independently, uninfluenced by any observation made in this order. The grant of temporary injunction hereunder shall not be construed as an approval of possession of the appellants, over the suit land. No costs.