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2009 DIGILAW 458 (AP)

G. Kiran Kumar v. Ala Malleswara Reddy

2009-07-16

L.NARASIMHA REDDY

body2009
JUDGMENT :- The respondent executed a sale deed on 28.2.2001 in favour of the mother of appellants 1 to 3, the fourth appellant herein. On the same day, the fourth appellant executed an agreement of sale to convey the property in favour of the respondent. The fourth appellant is said to have gifted that property to her children, appellants 1 to 3 on 1.9.2008. Alleging that the respondent is interfering with their possession, appellants 1 to 4 filed O.S. No.24 of 2009 in the Court of the Additional Senior Civil Judge, Kumool for the relief of declaration that they are the absolute owners of the suit schedule property and for perpetual injunction against the respondent. They also filed I.A. No.50 of 2009 under Order 39 Rules 1 and 2 C.P.C. They pleaded that ever since the respondent sold the suit schedule property on 28.2.2001, it was in possession of the fourth appellant till she gifted the same to appellants 1 to 3 and thereafter, they are in possession and enjoyment of the property. It is stated that part of the property covered by the sale deed was acquired by the Government and compensation thereof was paid to the fourth appellant. 2. The respondent opposed the I.A., by stating that the transaction between himself and the fourth appellant was of mortgage and that the same is evident from the execution of an agreement of sale by the fourth appellant on the same day. It is also stated that despite the sale, the possession remained with him and that the same is evidenced by the entries in the adangals. Through its order, dated 9.3.2009, the trial Court dismissed the I.A. Hence, this civil revision petition. 3. Sri T.S. Anand, the learned Counsel for the appellants, submits that there is a clear recital in the sale deed marked as EX.A1 that the possession of the property was delivered to the fourth appellant and still, the trial Court did not recognize it. He further submits that the little doubt that existed as to the exercise of ownership rights is cleared by the award passed by the Joint Collector, marked as Ex.A7, under which the compensation for the part of the land covered by the sale deed was paid to the fourth appellant. According to him, the appellants established a prima facie case and balance of convenience is in their favour for granting temporary injunction. According to him, the appellants established a prima facie case and balance of convenience is in their favour for granting temporary injunction. 4. Sri B. Narasimha Sharma, the learned Counsel for the respondent, on the other hand, submits that the appellants are exploiting the financial necessities of the respondent. He contends that an amount which is less than Rs.50,000/- was given as loan to the respondent and repayment was made far exceeding that amount. He contends that the sale deed was executed on the insistence of the fourth appellant alone and the fact that an agreement of sale was executed on the same day, marked as Ex.B6, would amply demonstrate the transaction of mortgage. The learned Counsel submits that the entries in the adangals prove the possession of the respondent over the land. 5. The appellants filed the suit for declaration of title and perpetual injunction. They have also filed an application under Order 39 Rules 1 and 2 C.P.C. In the I.A., the appellants filed Exs.A1 to A 14 and the respondents filed Exs.B1 to B 18. The appellants rested their claim on Ex.A3, which was executed by the respondent on 28.2.200 I. It is, no doubt, true that there is a recital as to the delivery of possession in EX.A3. If the suit were to have been filed immediately after the execution of Ex.A3, there would have been some basis to grant the relief of temporary injunction. Eight years elapsed between the date of execution of EX.A3 and the date of filing of the suit. The appellants did not place any other material before the trial Court to prove that they are in possession of the land. Had there been no other evidence, to the contrary, the presumption drawn in respect of EX.A3 could have been extended till the date of filing of the suit. The record, however, discloses that the respondent was recorded as possessor in the adangals for a substantial period subsequent to the date of Ex.A3. If that is taken into account in conjunction with Ex.B6, an agreement of sale executed by the fourth appellant in favour of the respondent, it would not sound extraordinary. The record, however, discloses that the respondent was recorded as possessor in the adangals for a substantial period subsequent to the date of Ex.A3. If that is taken into account in conjunction with Ex.B6, an agreement of sale executed by the fourth appellant in favour of the respondent, it would not sound extraordinary. It is not uncommon that whenever a sale deed is followed by an agreement of sale to reconvey the property, the possession remains with the original vendor by placing the obligation upon him either to pay the rent or to pay the consideration under transaction with interest. The trial Court recorded a finding to the effect that the respondent is in possession. The appellants are not able to demonstrate anything to the contrary. In view of the proved possession of the respondent over the land, he can be treated as a lessee of the appellants till the suit is decided. 6. Hence, the appeal is dismissed. The possession of the respondent over the land shall be treated in the capacity as of lessee of the appellants. The trial Court shall endeavour to dispose of the suit as early as possible and not later than six (6) months from the date of receipt of a copy of this order. There shall be no order as to costs.