Research › Search › Judgment

Andhra High Court · body

2010 DIGILAW 106 (AP)

M. Chinnayya @ Ganganna v. M. Sudhakar

2010-02-19

G.CHANDRAIAH

body2010
JUDGMENT : 1. Heard both the counsel. 2. Aggrieved by the judgment and decree dated 20.11.2008 passed by the court of District Judge, in C.M.A.No.14/2008 in reversing the order and decree dated 15.9.2008 passed by the court of Junior Civil Judge, Adilabad in I.A.No.170/2008 in O.S.No.82/2008 and thereby granting temporary injunction pending the suit, the appellant/defendant, filed the present revision. 3. For the sake of convenience the parties will be referred to as per their array in the original suit. 4. The suit schedule property is an extent of Acs.2-00 in Sy.No.38/10 at Nishan Ghat village in Adilabad Mandal, Adilabad District bounded by “East – land bearing Sy.No.53, West – Land bearing Sy.No.38, South – land bearing Sy.No.54 and North – land bearing Sy.No.38. 5. The plaintiff filed the suit for perpetual injunction restraining the defendants and his agents, representatives, relatives and successors-in-interest from interfering with the possession and enjoyment of the suit schedule property. Pending the suit, he filed the present I.A.No.170/2008 seeking temporary prohibitory injunction. 6. The case of the plaintiff is that the suit schedule property belong to his paternal grand mother – Posani and under registered gift deed dated 13.2.2008, she gifted the said property to him and ever since he is in possession of the property and his grand mother died on 15.2.2008 and prior to her death, his father – Mudugonda Ganganna cultivated it on behalf of his grandmother last year and also in the year in which the suit is filed and that he sowed cotton crop. On 1.8.2008, his paternal uncle, who is his father’s cousin tried to dispossess him and his father from the suit schedule land with an intention to forcibly occupy it and that with great difficulty he could resist the said attempt and that after 1.8.2008, the defendant and his men are threatening to dispossess him and hence filed suit and pending the suit he filed the present I.A.No.170/2008 seeking temporary injunction. Along with the suit, the plaintiff filed registered gift deed dated 17.8.2008 and certified copies of pahanies right from the years 2002-03, 2005-06, 2006-07 and 2007-08. He also filed receipts showing purchase of BT cotton seeds and jawar seeds on 17.7.2008. The plaintiff also filed third party affidavit of one M.Gaganna who is no other than the father of the petitioner. Tounch map of survey No.38/10 as per pahani, is also filed. 7. He also filed receipts showing purchase of BT cotton seeds and jawar seeds on 17.7.2008. The plaintiff also filed third party affidavit of one M.Gaganna who is no other than the father of the petitioner. Tounch map of survey No.38/10 as per pahani, is also filed. 7. On the other hand, the case of the defendant who filed counter affidavit while denying that the petitioner is the owner and possession of the suit schedule land is that the suit schedule land is assigned land and not the self acquired land of the grandmother of the plaintiff and that in view of prohibition contained under Section 3(2) of A. P. Assigned Lands (Prohibition of Transfer) Act No.9/1977, the suit land cannot be transferred and the alleged gift deed is void and that the plaintiff approached the court with unclean hands. The plaintiff got the gift deed executed with a mala fide intention to grab the land of the defendant in Sy.No.38/6. The main contention of the defendant is that the suit land is not all in Sy.No.38/10, but is in Sy.No.38/6, which is being cultivated by him for the last twenty years and that this year he sowed cotton and jawar in the filed, which has grown up the height of 1 ½ and 2 ½ feet. With these averments, he sought to dismiss the I.A. for temporary injunction. The defendant also filed Photostat copies of pahanies of Sy.No.38/6 for the years 2003-04 and 2004-05. He filed certified copies of pahanies for the years 2005-06, 2006-07 and 2007-08. The defendant also filed Photostat copy of pattedar pass book pertaining to Sy.No.38/6 in his favour. He also filed Photostat copies of the out patient ticket of himself and one M.Ramesh dated 15.7.2008. Further he filed receipts for purchase of DAP fertilizer for his crop 2.6.2008 and also receipt for purchase of Mallika breed seeds on 5.7.2008 and receipts dated 12.8.2008 and 13.8.2008 showing purchase of pesticides. 8. Based on the above averments, the trial court framed the following issue for consideration: “Whether the petitioner/plaintiff has come to the court with clean hands and whether he is entitled for the temporary injunction pending the suit or not?” 9. 8. Based on the above averments, the trial court framed the following issue for consideration: “Whether the petitioner/plaintiff has come to the court with clean hands and whether he is entitled for the temporary injunction pending the suit or not?” 9. Based on the respective pleadings and though the documents sought to be relied upon by both the parties were not marked, the trial court considering those documents, held that the plaintiff has not come to the court with clean hands and accordingly refused to grant temporary injunction. 10. Aggrieved by the order and decree of the trial court, the plaintiff filed appeal in C.M.A.No.14/2008 on the file of the District Judge, Adilabad. The lower appellate court based on the material on record, framed the following point for consideration: “Whether the plaintiff is entitled to temporary prohibitory injunction sought for pending the suit?” 11. On the re-appreciation of the entire material available on record, the lower appellate court held that the plaintiff established prima facie case regarding his title and possession over the suit land and accordingly granted temporary injunction pending the suit. However, the lower appellate court made clear that the temporary injunction order shall not operate against the Government and that it is open to them to take appropriate action available under law. 12. Challenging the granting of temporary injunction by the lower appellate court, the defendant in the suit filed the present revision. 13. The learned counsel appearing for the petitioner/defendant contended that the court below did not consider the evidence on record. He submitted that the Sy.No.38 is a vast extent of Government land and it was assigned to different landless people and in that process the petitioner/defendant was assigned an extent of Acs.2-00 in Sy.No.38/6 and that he is in possession of the land for the last twenty years. He stated that the case of the respondent/plaintiff is that his grandmother Posani was assigned the suit schedule land in Sy.No.38/10 and she gifted the said property to him. But the gift deed does not show whose lands are situated on four sides and it simply states the survey numbers. Therefore, he contended that the trial court rightly found that the suit schedule property is not properly shown for its identification with its meets and boundaries. But the gift deed does not show whose lands are situated on four sides and it simply states the survey numbers. Therefore, he contended that the trial court rightly found that the suit schedule property is not properly shown for its identification with its meets and boundaries. He stated that the property claimed by the respondent/plaintiff is totally different and wrongly shows the boundaries of Sy.No.38/6, which is in possession of the petitioner/defendant and that under the guise of interim junction to Sy.No.38/10, the respondent/plaintiff is interfering with the possession of the petitioner/defendant in Sy.No.38/6. He contended that the lower appellate court did not consider the documents filed by the petitioner/defendant. He stated that the tounch map filed by the respondent/plaintiff is not authenticated and it is prepared as per pahani and not as per survey conducted by any competent authority. Further, he also sought to produce material papers pertaining to pahanies in respect of Sy.No.38/6 for 1993 to 2008 and tounch map issued in respect of Sy.No.38/6.With these averments, he sought to set aside the injunction granted by the lower appellate court and restore the interim order of dismissal of the trial court. 14. On the other hand, the learned counsel for the respondent/plaintiff contended that the trial court did not consider the aspect of possession in a suit for injunction and carried away with the title. He submitted that court shall not deal the interlocutory application filed seeking temporary injunction, as if it is deciding the suit finally and only existence of prima facie, balance of convenience and irreparable loss, shall be considered. In support of this contention, he relied on the judgment of the Apex Court reported in HINDUSTAN PETROLEUM CORPN. LTD v. SRIMAN NARAYAN (2002)5 SCC 760 . Relying on the judgment of the Apex Court reported in DHARIWAL INDUSTRIES LTD. v. M.S.S.FOOD PRODUCTS (2005)3 SCC 63 , he contended that the documents not produced before the courts below cannot be produced before the appellate court and further the authenticity of the documents filed by the respondent/plaintiff cannot be gone into at the interlocutory stage and they shall be dealt with only at the trial of the suit. v. M.S.S.FOOD PRODUCTS (2005)3 SCC 63 , he contended that the documents not produced before the courts below cannot be produced before the appellate court and further the authenticity of the documents filed by the respondent/plaintiff cannot be gone into at the interlocutory stage and they shall be dealt with only at the trial of the suit. He contended that though the petitioner/defendant contended that suit land is not at all in Sy.No.38/10 an it is in Sy.No.38/6, failed to substantiate the same and on the other hand, the plaintiff proved the prima facie case of possession and the lower appellate court rightly considering this aspect, granted interim injunction and the same does not warrant any interference. With these averments, he sought for dismissal of the suit. 15. In view of the above rival contentions, the point that arises for my consideration is whether the impugned order of the lower appellate court warrants any interference? 16. Before noting the case of the respective parties, it is expedient to note that it is settled law that in an application seeking temporary injunction pending the suit for perpetual injunction, the court shall consider the prima facie case, balance of convenience and irreparable loss if interim injunction is not granted pending the sit and the disputed questions with regard to title, shall be dealt with during the trial, based on the material evidence available on record. The Apex Court in the decision reported in HINDUSTAN PETROLEUM CORPN. LTD. v. SRIMAN NARAYAN (1 supra) while dealing with the application for interlocutory injunction filed by the plaintiff restraining the defendants therein from interfering with possession of a petrol pump, which was rejected by the trial court and on appeal, granted by the High Court, the Apex Court laid down certain guidelines for grant of interlocutory injunction, while confirming the order of the High Court. The said guidelines are extracted as under for better appreciation: “7. It is elementary that grant of an interlocutory injunction during the pendency of the legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court normally applies the following tests: (i) Whether the plaintiff has a prima facie case: (ii) Whether the balance of convenience is in favour of the plaintiff; and (iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. 8. While exercising the discretion the court normally applies the following tests: (i) Whether the plaintiff has a prima facie case: (ii) Whether the balance of convenience is in favour of the plaintiff; and (iii) Whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. 8. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the exercise of the legal right asserted by the plaintiff and its alleged violation are both contested and remain uncertain till they are established on evidence at the trial. The relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before which that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighted against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights from which he could not be adequately compensated. The court must weigh one need against another and determine whether the “balance of convenience” lies. (See Gujarat Bottling Co. Ltd. v. Coca Cola Co. (1995)5 SCC 545 ). 17. Keeping in view the above principles laid down by the Apex Court, I would like to consider the case of the respective parties. 18. As noted above, the case of the plaintiff is that his grand mother Posai executed a registered gift deed in respect of suit schedule property in an extent of Acs.2-00 in Sy.No.38/10 situated at Nishanghat village of Adilabad revenue mandal in his favour and ever since he is in possession of the said property and prior to the execution of the gift deed, his grand mother, who died on 15.2.2008, is in possession and that his father cultivated on behalf of his grandmother and that his father is also cultivating on his behalf in this year also and that he sowed cotton and that on 1.8.2008, the defendant who is his paternal uncle interfered with his possession and therefore he filed suit and sought for temporary injunction pending the suit. On the other hand, the case of the defendant is that the suit schedule land in an assigned land and in view of the prohibition contained under the provisions of the Act, it cannot be transferred and his case is that the suit schedule land is not at all in survey no.38, but it is in Sy.No.38/6 which he is cultivating for the last twenty years and that this year he sowed cotton ad jawar in his filed and therefore, no interim injunction can be granted. 19. It is to be noticed that though the defendant disputed the gift said to have been executed by the grandmother of the plaintiff stating that the suit schedule land is an assigned land and it cannot be transferred, the said question with regard to title in a suit for injunction, against the defendant, needs to be considered during the trial, since the suit is not filed against the Government and the lower appellate court has rightly considered this aspect and rejected the contention of the counsel for the defendant. But the trial court without dealing with the possession of the plaintiff, mainly carried away with regard to the title of the property and held that the plaintiff approached the court with unclean hands. This finding of the trial court, at the interlocutory stage, is uncalled for and the same is liable to be set aside. 20. The question which requires to be considered at the interlocutory stage, is with regard to the possession of the plaintiff over the suit schedule property as on the date of filing of the suit. 21. The case of the plaintiff is that he came into possession of the suit schedule property by virtue of the registered gift deed dated 17.1.2008 executed by his grand mother. To prove his possession, he relied on certified copies of pahanies right from the year 2002-03, 2005-06, 2006-07 and 2007-08 and also filed tounch map of survey no.38/10 as per pahani. On the other hand, the case of the defendant while disputing the title is that he is the owner and possessor of Sy.No.38/6 and that the suit schedule property is not at all in Sy.No.38/10 and it is in Sy.No.38/6 which is in his possession. 22. To prove the possession of the plaintiff, he relied on gift deed and the pahanies. 22. To prove the possession of the plaintiff, he relied on gift deed and the pahanies. The lower appellate court considering these documents found that the pahanies for 2002-03, 2005-06, 2006-07 show that the plaintiff’s grandmother Posani is the owner and cultivator of the suit land of Acs.2-00 in Sy.No.38/10 and further the pahani for the year 2007-08 shows the Posani as the owner and one Mudogonda Ganganna was shown to be cultivator of the land. A perusal of pahanies and the touch map issued by the Mandal Surveyor of the Mandal Revenue Office, Adilabad shows that the suit land exists and the boundaries mentioned in the gift deed are also tallying with the boundaries shown in the tounch map. The learned counsel for the petitioner/defendant contended that tounch map filed by the plaintiff is not authenticated and it is prepared as per pahani, but not as per survey conducted by any competent authority. The tounch map is issued by the Surveyor of the Madal Revenue Office, Adilabad. However, the authenticity of the said document cannot be considered at this stage and the same needs to be considered during the trial. Similarly, the additional documents sought to be produced by the counsel for the defendant with regard to pahanies pertaining to the land of the defendant in Sy.No.38/6 from 1993 to 2002 and the tounch map for the said land, which are not produced before the courts below, cannot be permitted to be produced at this stage before this court. The Apex Court in the decision reported in DHARIWAL INDUSTRIES LTD. v. M.S.S.FOOD PRODUCTS (2 supra) held as under: “6. Before proceeding to consider the appeal, we may observe that in this appeal, various documents, not produced before the trial court or before the lower appellate court, have been produced and elaborate arguments addressed based on those documents. The present proceedings is an appeal by special leave against an order passed by the High Court in an appeal under Order 43, Rule 1 ® CPC and normally the appeal here must be considered based on the material that was produced before the trial court or before the appellate court in terms of the permission granted by that court under Order 41 Rule 27 CPC. At this interlocutory stage it would not be proper for this Court to enter into an adjudication based on the various documents produced before this Court which are not of undoubted authenticity and the genuineness, acceptability and value of which are mutually questioned. Generally, the arguments based on genuineness, admissibility and so on, are ones to be raised at the trail, though no doubt they could be raised at the interlocutory stage in respect of a prima face case or in opposition thereto. In other words, we think that it will be proper to confine ourselves to the materials available before the trial court and those made available before the lower appellate court with the permission of that court while considering this interlocutory appeal.” 23. Further, on a perusal of the documents filed by the defendants viz. pahanies and pass book pertaining to his land in Sy.No.38/6, the lower appellate court found that these documents do not show that the suit schedule property does not exist. From the material on record it is to be noticed that the defendant mainly disputed that the paternal grandmother of the plaintiff cannot transfer the suit land and he specifically did not deny that Posania is the owner and possessor of the land. Therefore considering these documents, I am of the view that the lower appellate court rightly found that the plaintiff established the prima facie case with regard to his title and also possession over the suit schedule land. On the other hand, though the defendant contended that suit schedule land does not exist and that the suit schedule land is in Sy.No.38/6, he failed to substantiate the same and as rightly found by the lower appellate court, this goes to show that the defendant is interfering with the possession of the suit land. 24. Considering the material evidence available on record, the lower appellate court rightly set aside the order and decree of the trial court and granted temporary injunction against the defendant pending the suit and I do not find any reason to interfere with the impugned judgment and decree of the trial court and hence the revision is devoid of any merit and the same is liable to be dismissed. 25. For the foregoing reasons, the revision is dismissed. 25. For the foregoing reasons, the revision is dismissed. It is made clear that the trial court shall dispose of the suit on its merits based on the evidence and in accordance with law, without being influenced by any observation or finding in this order. No costs.