Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 457 (AP)

Sagi Vijaya Ramachandra Raju v. K. Satyanarayana

2009-07-16

L.NARASIMHA REDDY

body2009
Judgment :- The appellants and the first respondent in both the appeals are common. The appeals arise out of a common order, dated 26.03.2008, passed by the Court of the Senior Civil Judge, Kovvur. Hence, they are disposed of through a common judgment. For the sake of convenience, the parties herein are referred to as arrayed in C.M.A.No.564 of 2008. The first respondent filed O.S.No.148 of 2007 against the appellants for the relief of perpetual injunction in respect of the suit schedule property. It is stated that himself and his family members purchased various extents of land in Survey No.455 of Yarnagudem Village, Devarapalli Mandal, West Godavari District from Manthena family. According to him, though the appellants are said to have purchased about Acs.20.00 of land in the same survey number, they do not have any title, possession or right over any portion of Survey No.455 and that they are interfering with his possession over the suit schedule property. He also filed I.A.No.907 of 2007 under Order 39 Rules 1 and 2 C.P.C. for the relief of temporary injunction. He repeated the plaint allegations in the affidavit filed in support of the I.A. As regards the same extent of land, the appellants filed O.S.No.197 of 2007 in the same Court, for the relief of declaration of title and perpetual injunction against the first respondent and five others, respondents 2 to 6 herein. According to them, the suit schedule property of Acs.21.40 cents of land was purchased by them under a sale deed, dated 22.09.1958, and ever since then, they are in cultivation and enjoyment of the property, and the respondents, who purchased various bits of land in the large extent of that Survey Number in the recent past, are threatening to dispossess them from the suit schedule property. The appellants also filed I.A.No.1152 of 2007 under Order 39 Rules 1 and 2 C.P.C. for the relief of temporary injunction, almost on the same facts pleaded in the plaint. The trial Court clubbed the suits and heard the applications, together. Through its common order, dated 26.03.2008, the trial Court dismissed I.A.No.1152 of 2007 and allowed I.A.No.907 of 2007. Having regard to the value of the suit in O.S.No.148 of 2007, the appellants presented C.M.A.No.41 of 2008 under Order 43 Rule 1 C.P.C. in the Court of District Judge, West Godavari against I.A.No.907 of 2007. Through its common order, dated 26.03.2008, the trial Court dismissed I.A.No.1152 of 2007 and allowed I.A.No.907 of 2007. Having regard to the value of the suit in O.S.No.148 of 2007, the appellants presented C.M.A.No.41 of 2008 under Order 43 Rule 1 C.P.C. in the Court of District Judge, West Godavari against I.A.No.907 of 2007. C.M.A.No.564 of 2008 is filed in this Court assailing the order in I.A.No.1152 of 2007. Subsequently, they filed Tr.C.M.P.No.279 of 2008 and as a consequence of the orders passed therein, C.M.A.No.41 of 2008 is transferred from the District Judge, West Godavari to this Court and thereby, it came to be numbered as Tr.C.M.A.No.52 of 2009. Sri M.Adinarayana Raju, the learned counsel for the appellants, submits that the trial Court ignored certain important aspects of the matter, while passing the orders under appeal. He submits that the appellants purchased the suit schedule property, almost half a century ago and that their title and possession is evidenced by the issuance of pattadars pass books, title deeds and the entries in the adangals. He further submits that the first respondent came into picture, much later and the boundaries mentioned in various sale deeds are self-contradictory. He also submits that there is a prominent land mark, which needs to be taken into account, namely, the land of about Acs.9.00, which was surrendered by the original land owners under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (for short ‘the Act’) and the record clearly discloses that the lands purchased by the respondents are on the Eastern side of the ceiling land, whereas the land owned by the appellants is on the Western side of the ceiling land. He has drawn the attention of this Court to Exs.A15 to 17, the sale deeds, through which, the respondents purchased the land and submits that the boundaries mentioned in Ex.A15 on the one hand and Ex.A17 on the other are totally inconsistent. The learned counsel further submits that the appointment of Commissioner, in a matter of this nature, that too, at the stage of interlocutory applications, is totally untenable and that it was not at all permissible for a Commissioner to submit an interim report unless specifically directed by the Court. The learned counsel further submits that the appointment of Commissioner, in a matter of this nature, that too, at the stage of interlocutory applications, is totally untenable and that it was not at all permissible for a Commissioner to submit an interim report unless specifically directed by the Court. The learned counsel also submits that the trial Court committed an error in resting its conclusion upon such a defective and untenable report of the Commissioner Sri C.B.Rama Mohana Reddy, who appeared for the respondents, on the other hand, submits that even from a perusal of the sale deed under which the appellants purchased the land, which is marked as Ex.A1, it would be difficult to know the location thereof. He further submits that the appellants themselves were not clear as to when the undivided share purchased under Ex.A1 was demarcated and as to on what basis, they are claiming the rights vis-à-vis the property. He also submits that the trial Court has examined the evidence on record exhaustively and has arrived at a just and proper conclusion. Though separate suits are filed by the parties, claiming different kinds of reliefs, the subject matter of both the suits is one and the same. The contest between the parties was serious even at the stage of interlocutory applications, obviously on account of the value of the property involved. The documents filed on behalf of the appellants were marked as Exs.A-1 to A-46; those filed by the respondents were marked as Exs.B-1 to B-48. In addition to these documents, both the parties filed about fifty 3rd party affidavits in support of their respective claims. The appellants rested their claim on a sale deed, dated 22.09.1958, Ex.A-1. The respondents, on the other hand, based their title to the property upon Exs.A-15 to A-17, which are of the years 1997, 1998 and 2007. Ex.A-1 is for the land to an extent of Acs.21.40 cents. The extents covered by Exs.A-15 to A-17 are Acs.6.66 ½ cents, Acs.5.33 ½ cents and Acs.700 respectively, totalling to Acs.19.00. It is, no doubt, true that the property purchased under Ex.A-1 was an undivided share. However, on the strength of that, pattadars pass books and title deeds were issued under Ex.A-3. The respondents were also issued pattadar pass books as regards the lands covered by Exs.A-15 to A-17. These documents, however, are not helpful in localizing the land. It is, no doubt, true that the property purchased under Ex.A-1 was an undivided share. However, on the strength of that, pattadars pass books and title deeds were issued under Ex.A-3. The respondents were also issued pattadar pass books as regards the lands covered by Exs.A-15 to A-17. These documents, however, are not helpful in localizing the land. The land in Survey No.455, is very vast in extent, namely about Acs.150.00, owned by Manthena family. The respondents purchased about Acs.70.00 of land from Manthena Family in the names of different members of their family over the past several years. An extent of Acs.9.00 of land was surrendered by the Manthena family under the Act. The Government, in turn, assigned that land in bits to the landless poor. By the time Exs.A-15 to A-17 were executed, the surrender was made. From the description of the boundaries in Ex.A-15, it appears that the land surrendered under the Act is a strip, running from South to North, dividing the land in Survey No.455 into three parts, namely ceiling land of about Acs.9.00, part of survey number on the East and remaining part of the West. In Ex.A-15, the boundaries are mentioned as under: East : Vendor’s land South : Village Boundary West : Ceiling land North : Bund. The consistent case of the appellants is that their land is on the Western side of the ceiling land. The whole controversy has arisen after the respondents purchased an extent of Acs.7.00 of land under Ex.A-17 from Smt.Pericherla Satyavathi. The appellants state that the land of Satyavathi was on the Eastern side of their land and that it did not abut the ceiling land, at all. The description in Ex.A-17 shows that the Western boundary is mentioned as ceiling land. That boundary is similar to the one mentioned in Ex.A-15. These aspects need a close examination and a detailed consideration. The trial Court appointed a Commissioner, at the instance of the respondents, for the purpose of noting the physical features. Though the order appointing the Commissioner is not in challenge before this Court, it is to be held that the very appointment was untenable. The reason is that, in an application filed under Order 39 Rules 1 and 2 C.P.C., it is for the party seeking the relief of temporary injunction, to prove possession over the property and establish a prima facie case. The reason is that, in an application filed under Order 39 Rules 1 and 2 C.P.C., it is for the party seeking the relief of temporary injunction, to prove possession over the property and establish a prima facie case. Appointment of Commissioner, at that stage, would certainly be a step, to enable the party to gather evidence. Assuming that the order appointing the Commissioner is otherwise valid, the record discloses that the report submitted by the Commissioner was ‘interim’ in nature. The very nomenclature of the report makes that clear. He did not make any reference to an order of the Court, enabling him to file an interim report. The trial Court treated the report as incomplete. In para 18 of its order, the trial Court observed …. “the commissioner also filed incomplete report and he was directed to take the assistance of the Mandal Surveyor in taking the measurements of the land in dispute”. Still, it proceeded to decide the applications. The approach of the trial Court was totally untenable, if not objectionable. A report, which was said to be incomplete, was taken as the basis by the trial Court, to arrive at its own conclusions. Totally different aspect, other than the one pleaded by the parties was reported by the Commissioner, namely bunds over the land in Survey No.455. In para 20, the trial Court observed “according to the report of the Commissioner, the ava land is situated on the South of the suit schedule property and there are bunds on all the four sides”. Similarly, reference was made to the blocks mentioned in the Commissioner’s report and plan. At various other places also, reference was made to the said report. The trial Court was convinced that there existed a substantial bit of ceiling land, and the land of the appellants is on the West of the ceiling land, whereas the one purchased by the respondents is on the East. Having said that, the trial Court jumped to a conclusion, which cannot be supported in law. Para 19 reads as under: “It is already observed that the property purchased by the petitioners under Ex.A1 is to the West of the land ceiling land, whereas the land purchased by the respondents is to the East of the land ceiling land and the land of the respondents could be identified by the learned Commissioner”. Para 19 reads as under: “It is already observed that the property purchased by the petitioners under Ex.A1 is to the West of the land ceiling land, whereas the land purchased by the respondents is to the East of the land ceiling land and the land of the respondents could be identified by the learned Commissioner”. An attempt was made by the trial Court to overcome the prominent location of the ceiling land. No effort was made to identify the location of that land, which in turn, could have helped the Court in arriving at a proper conclusion. It has also not undertaken the analysis of the boundaries mentioned in various sale deeds. On the other hand, it has chosen to pronounce upon the legality, validity or the effectiveness of the sale deed executed way back in the year 1958 and the pattadar pass books issued on the basis of the same. It is curious to note that while dealing with the question as to the payment of land revenue by the parties, the trial Court made the following observation: “It appears that the land revenue was paid by the respondents in the year 1995, 1999 and 2007. Ex.A33 is the 10-1 account showing that Ac.135.85 of land was registered in the name of 12 persons including Sagi Viswanadharaju. The respondents have not filed any document to show that they paid any land revenue from 1958 to 1995 and it is not known as to why R.1 could not obtain any pass book in his name. Further, it appears that a letter was addressed to the District Collector in Ex.B24 for cancellation of pass books issued in the name of the respondents”. This is not a case where the plaintiff claimed injunction against the defendant, in which case, the burden squarely rested upon the plaintiff to show his prima facie possession and prove balance of convenience. It has already been observed that the parties herein have filed independent suits and both of them claim injunction as regards the same property, against each other. Therefore, both of them were under the same obligation to prove their respective cases. None had the advantage of requiring the other party, to prove its case and not to depend upon the weakness of the opposite party. Therefore, both of them were under the same obligation to prove their respective cases. None had the advantage of requiring the other party, to prove its case and not to depend upon the weakness of the opposite party. The trial Court, however, assumed that it was for the appellants herein to prove their case and that the respondents are not under obligation to substantiate their claim. This can be gathered from the following observation: “Whether it is legal or illegal, the respondents shown that they are in possession of the land within the four bunds. The bunds are not of normal height or width and the height of the bund is about 12 feet from the ground level and length is about 1500 and the width is in between 15 to 20 feet”. When both the parties have approached the Court for identical relief, there was no basis for the trial Court to permit one of the parties to claim even an illegal possession, or to relieve it from the obligation to prove its prima facie case. Therefore, the appeals are allowed and the orders under appeal are set aside. The trial Court is directed to examine the matter afresh, strictly on the basis of the evidence that is admissible in law and which has the sanctity of statutory provisions. The report submitted by the Commissioner appointed by it, shall not be taken into account nor shall it invite any further report from the Commissioner. It shall be open to the parties to adduce any additional evidence as is permissible in law. The fresh orders in the interlocutory applications shall be passed, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.