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2010 DIGILAW 154 (AP)

Gone Rajamma v. Chennamaneni Mohan Rao

2010-03-03

K.C.BHANU

body2010
JUDGMENT : 1. This revision under Article 227 of the Constitution of India is filed against the order, dated 19-10-2009, in C.M.A.No.57 of 2007, on the file of the V Additional District Judge, Karimnagar, in confirming the order, dated 26-09-2007, in I.A.No.337 of 2007 in O.S.No.79 of 2007, on the file of the Senior Civil Judge, Peddapalli. 2. Petitioners herein are the respondents (defendants) and the respondent herein is the petitioner (plaintiff) in the suit. 3. Brief facts that are necessary for disposal of the present revision may be stated as follows: The respondent herein filed I.A.No.337 of 2007 in O.S.No.79 of 2007 before the trial Court under Order 39 Rules 1 and 2 CPC to grant temporary injunction restraining the petitioners herein, their agents, workmen, servants and labourers from interfering with the peaceful possession and enjoyment of the respondent herein over the suit schedule land bearing Sy.No.194, measuring Ac.6.39 guntas situated at Sankenapalli village of Velgatoor mandal stating that he is the owner and possessor and in occupation of the suit land having purchased the same from one Gone Kistaiah for a sale consideration of Rs.50,000/- on 08-05-1988 and that his name was recorded as owner and possessor in the revenue records, that he is paying land revenue and that he acquired title by adverse possession. 1st petitioner herein is the wife and petitioners 2 to 4 herein are the sons of original owner Gone Kistaiah and without any right, title and interest, they are trying to interfere with his peaceful possession and enjoyment of the property. Hence, he filed the petition. 4. The 1st petitioner herein filed the counter affidavit denying the averments in the affidavit filed in support of the petition. Hence, he filed the petition. 4. The 1st petitioner herein filed the counter affidavit denying the averments in the affidavit filed in support of the petition. It is stated that her husband cultivated the suit land on behalf of Ponugoti Satyamma and by taking into his long occupation and enjoyment over the suit land, the Revenue Divisional Officer, Peddapalli, issued Section 38-E certificate under Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short ‘the Tenancy Act’), vide proceedings No.T/9040/73, dated 28-02-1975 and since then her husband was in enjoyment of the said land till his death i.e., on 28-06-1999 and after his death, the petitioners herein being the legal heirs of Gone Kistaiah succeeded the said property and cultivating the same and the name of 1st petitioner herein is also mutated in the revenue records as pattedar from 2005-2006 onwards and she executed a registered gift deed in favour 4th petitioner herein out of love and affection. When she obtained pahanies from the revenue office for the purpose of bank loan, they came to know that the name of the respondent herein is wrongly recorded as possessor from 1988-89 to 2006-07. In fact, he was never in possession and enjoyment of the property at any point of time, but in collusion with the revenue people, he got entered his name in the revenue records. She filed an objection before the Tahsildar, Velgatoor and the Revenue Inspector inspected the land on 05-07-2007 and conducted panchanama, wherein he recorded the possession and enjoyment of the 1st petitioner herein and not the respondent herein. Hence, she prays to dismiss the petition. 5. No oral evidence was adduced on behalf of either side except marking Exs.A1 to A23 on behalf of the respondent herein and Exs.B1 to B36 on behalf of the petitioners herein. 6. The trial Court after considering the material available on record, came to the conclusion that as on the date of filing of the suit, the respondent herein was in possession and enjoyment of the suit land and accordingly granted temporary injunction. On appeal, the said order was confirmed by the appellate Court. Aggrieved thereby, this revision is filed. 7. Now the point for determination is whether the orders under challenge are correct, legal and proper? 8. On appeal, the said order was confirmed by the appellate Court. Aggrieved thereby, this revision is filed. 7. Now the point for determination is whether the orders under challenge are correct, legal and proper? 8. Learned counsel appearing for the petitioners herein (defendants) contended that the husband of the 1st petitioner herein was given a certificate under Section 38-E of the Act, that therefore, the petitioners herein are legal heirs of protected tenant, that the respondent herein failed to prove the sale in his favour by late Gone Kistaiah, that no order of injunction should be granted against the legal heirs of protected tenant, that the protected tenant shall be deemed to be in possession, that as prima facie case is not made out, question of granting injunction does not arise, that the civil Court has no jurisdiction in view of the fact that provisions of Section 38-E of the Act would apply, that the remedy, if any, to be availed by the respondent herein is only before the concerned revenue authorities and hence, he prays to set aside the order of injunction granted by the trial Court and as confirmed by the appellate Court. 9. On the other hand, learned counsel appearing or the respondent herein (plaintiff) contended that the respondent herein is in continuous possession and enjoyment of the property, that question of title can be decided after adducing evidence by both parties, that since the documents on record would clearly reveal that the respondent herein has been in continuous possession and enjoyment of the property since long time i.e., more than 18 years prior to filing of the suit, he cannot be dispossessed forcibly except by due process of law, that there is no error apparent on the face of record so as to call for interference by this Court exercising powers under Article 227 of the Constitution of India, that there is no other remedy available to him under the Act and therefore, under general law, the respondent herein rightly approached the civil Court when there was a threat for dispossession, that after elaborate consideration of material on record, the trial Court rightly granted injunction and the same was confirmed by the appellate Court and hence, he prays to dismiss the revision. 10. 10. The power under Article 227 of the Constitution of India involves a duty on the High Court to keep the inferior Courts and Tribunals within the bounds of their authority and see that they do what their duty requires and that they do in a legal manner. Findings of fact of an inferior Court or Tribunal can be set aside when there is no evidence in justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the Court or Tribunal has come to or in other wards it is a finding which was perverse in law. Interfere in case of grave dereliction of duty or flagrant violation of law or grave injustice would be done. It is not to be exercised to correct error of fact or law unless such error is error of law apparent on the face of the record; it cannot be exercised irregularity or illegality of procedure unless such error effects the jurisdiction or involves a breach of principles of natural justice. 11. The case of the respondent herein is that he purchased the land in question from the original protected tenant for a sale consideration of Rs.50,000/- and thereafter, his name was mutated in the revenue records as possessor of the land. It is also one of the pleas of the respondent herein that he acquired the title by adverse possession as he was in continuous uninterrupted possession and enjoyment of the property for more than 18 years prior to filing of the suit. On the other hand, it is the case of the 1st petitioner herein that a certificate under Section 38-E of the Act was issued by the Revenue Divisional Officer, Peddapalli, in favour of her husband-Gone Kistaiah, vide proceedings, dated 28-02-1975 and since then her husband was in continuous possession and enjoyment of the land till his death i.e., on 28-06-1999 and thereafter, the petitioners herein being the legal heirs of Gone Kistaiah succeeded the property and were cultivating the same. It is the further case of the petitioners herein that when they applied for revenue records for obtaining loan, they came to know that the name of the respondent herein was wrongly recorded as possessor from 1988-89 to 2006-07. 12. It is the further case of the petitioners herein that when they applied for revenue records for obtaining loan, they came to know that the name of the respondent herein was wrongly recorded as possessor from 1988-89 to 2006-07. 12. Grant or refusal of injunction is guided by three well established principles viz., 1) If the plaintiff has made out a prima facie case, 2) If the balance of convenience is in his favour i.e., it would be greater inconvenience to the plaintiff if the injunction is not granted than the inconvenience which the defendant would be put to if the temporary injunction is granted and 3) If the plaintiff suffers irreparable injury. 13. With regard to the first ingredient, learned counsel for the 1st petitioner herein contended that there is no prima facie case established by the respondent herein to show about his title. On the other hand, he has taken two different pleas in the petition, one is outright purchase of land for a sale consideration of Rs.50,000/- without any registered document and another is adverse possession, which are inconsistent and cannot go together. He also contended that civil Court has no jurisdiction to pass any orders, since the respondent is claiming title through protected tenant 14. On the other hand, learned counsel appearing for the respondent herein contended that even assuming that he has no title, still in view of his continuous and long standing possession of the property, he cannot be evicted forcibly even by the true owner except in due process of law. On this aspect, he relied upon a decision reported in WALTER LOUIS FRANKLIN (DEAD) THROUGH L.RS V GEORGE SINGH (DEAD )THROUGH L.RS. 1996 (8) SUPREME 754 , wherein it was held thus: “Though he had purchased it from the Church, he could not take its possession from the appellant. It was specifically stated that it would be open to the respondent to obtain possession from the appellant, if he could. Admittedly, the respondent had not filed any suit for possession of the property. On the other hand, the appellant filed the suit for perpetual injunction to restrain the respondent from interfering with his possession of the property. It was specifically stated that it would be open to the respondent to obtain possession from the appellant, if he could. Admittedly, the respondent had not filed any suit for possession of the property. On the other hand, the appellant filed the suit for perpetual injunction to restrain the respondent from interfering with his possession of the property. In view of the admission in the title deed obtained by the respondent himself and a concurrent finding recorded by the courts below that the appellant has been in possession, the injunction shall follow.” That is also case where two inconsistent pleas have taken, one is purchasing a plot therein and another is claiming title by prescription. Considering the facts of the case, the said order has been passed. That is a case where the appellant therein purchased the property, but in this case there is no purchase. Hence, the above decision has no application. 15. He also relied on a decision reported in M. BAGI REDDY V T.KRISHNA REDDY (2000) 4 ALD 360 , wherein it was held thus: “The appellate Court failed to consider this clinching documentary evidence which, is on record. Instead it chose to mainly rely on the ownership certificates under Section 38-E granted to the defendants under the tenancy Act and it ha drawn an inference threfrom of deemed possession of the defendants. I am inclined to agree with the submission of the learned Counsel for the plaintiff that the fiction of deemed possession provided in Section 38-E of the tenancy Act is available only for the limited purpose mentioned in the said section and the same cannot be extended for other purposes i.e., to prove possession, ignoring the material available on record with regard to actual possession. It is also seen from the material on record that by virtue of the interim orders granted by this Court vide ex.A14, the plaintiffs have been continuing in possession of the suit land till date.” In view of the above decision, even though a certificate under Section 38-E of the Act was issued in favour of the husband of the 1st petitioner herein, it cannot be presumed that the protected tenant was in deemed possession ignoring other material on record with regard to actual possession. The fiction of deemed possession is available for the limited purpose as mentioned in the section. The fiction of deemed possession is available for the limited purpose as mentioned in the section. Therefore, the contention of the petitioners’ counsel herein that the protected tenant and after his death, legal heirs of protected tenant shall be deemed to be in the possession of the property is wholly untenable and devoid of merit. 16. He also relied on a decision reported in MANOHAR LAL CHOPRA V RAI BAHADUR RAO RAJA SETH HIRALAL AIR 1962 SC 527 (1), wherein it was held thus: “A similar question about the powers of the Court to issue a commission in the exercise of its powers under S. 151 of the Code in circumstances not covered by S. 75 and Order XXVI, arose in Padam Sen v. State of Uttar Pradesh, 1961-1 SCR 884: ( AIR 1961 SC 218 ), and this Court held that the Court can issue a commission in such circumstances. It observed at page 887 (of SCR) : thus : "The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S. 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice. There is no dispute about the proposition of law laid down by the Apex Court. There is no dispute about the proposition of law laid down by the Apex Court. It is not in dispute that the inherent powers has not been conferred upon the court, it is a power inherent in the court by virtue of its duty to do justice between the parties before it. From the above decision of apex Court, it is also clear that civil Courts have inherent jurisdiction in cases not covered by rule 1 and 2 of Order 39 of CPC to issue temporary injunction restraining the parties to the proceedings before them from not doing certain acts. 17. On the other hand, learned counsel appearing for the petitioners herein relied upon a decision reported in KRISHNA RAM MAHALE (DEAD) BY HIS LRS V MRS. SHOBHA VENKAT RAO AIR 1989 SC 2097 , wherein it was held thus: “This proposition was also accepted by a Division Bench of this Court in Rain Rattan V State of Uttar Pradesh (1977) 2 SCR 232 : ( AIR 1977 SC 619 ). The Division Bench comprising of three learned Judges held that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law.” 18. He also relied upon another decision reported in RAME GOWDA (DEAD) BY LRS V M.VARADAPPA NAIDU (DEAD) BY LRS AND ANOTHER (2004) 1 SCC 769 , wherein it was held thus: “It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed o land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot be take the law in his own hands and evict the trespasser or interfere with his possession. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot be take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the land in his own hands and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settle possession is it5self evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” So, from the above decisions, it is clear that a person who is in the settled possession of the property, cannot be evicted forcibly even by the true owner. But the true owner has every right to dispossess or throw out a trespasser, while he is in the act or process of trespassing. Even a trespasser who is in settled possession of property can seek an injunction even against the true owner, if he is going to be dispossessed forcibly. If the true owner is not shown to be in possession of the property, the remedy available is to evict him through process of law. 19. Even a trespasser who is in settled possession of property can seek an injunction even against the true owner, if he is going to be dispossessed forcibly. If the true owner is not shown to be in possession of the property, the remedy available is to evict him through process of law. 19. Learned counsel for petitioners’ herein relied upon another decision in NAWAB MIR BARKAT ALI KHAN V NAWAB ZALFIQUAR JAH B AHADUR AND OTHERS AIR 1975 AP 187 , with regard to grant of temporary injunction, wherein it was held thus: “It is well settled that the grant or refusal of a temporary injunction is covered by three well established principles viz., (1) whether the petitioners have made out a prima facie case (2) whether the balance of convenience is in their favour i.e., whether it would cause greater inconvenience to them if the injunction is not granted than the inconvenience which is opposite party or persons claiming through the opposite party would be put to if the temporary injunction is granted and (3) whether the petitioners would suffer irreparable injury. With the first condition as sine quo non, at least two conditions should be satisfied by the petitioners conjunctively and a mere proof of one of the three conditions does not entitle the petitioners to obtain a temporary injunction in their favour.” No doubt, in the above decision, proof of prima facie case is sine quo non for grant of temporary injunction, but in this case, the respondent herein filed several documents to show that he is in continuous possession and enjoyment of the suit schedule property for over 18 years. The contention of the petitioners herein that the name of the respondent herein has been wrongly included in the revenue records in collusion with the revenue officials, cannot be accepted at this stage. That is a matter to be decided after adducing evidence. Therefore, prima facie it is established even from the documents filed by both the parties, that the respondent herein was shown as possessor of the suit schedule land for over 18 years prior to the filing of the suit. In such circumstances, the remedy available to the petitioners herein is to file necessary application for recovery of possession from the competent forum. In such circumstances, the remedy available to the petitioners herein is to file necessary application for recovery of possession from the competent forum. Even though the respondent herein has no prima facie title to the property in question, still he can protect his possession when there is a threat of dispossession even against the true owner in view of the law enunciated by the Summit Court in Krishna Ram Mahale and Rame Gowda cases (4 and 5 supra). 20. Even assuming that the respondent herein is a trespasser or wrongdoer, his settled possession has to be protected. In other words, once a person is in settled possession, he is not to be dispossessed otherwise than by legal manner. The respondent has no right to get a permanent injunction to prevent his eviction for all times to come, but he cannot be evicted or removed without due process of law. 21. One of the contentions raised by the learned counsel appearing for the petitioners herein is that the respondent herein has to approach the concerned revenue authorities for seeking his redressal in view of the certificate issued under Section 38-E of the Tenancy Act to the protected tenant, but the counsel has not brought to the notice of this Court any provision available for recourse to the redressal of the grievance of respondent herein except stating Section 32 of the Tenancy Act. Section 32 of the Tenancy Act is available to a person for recovery of possession by filing necessary application before the concerned competent authority. In the facts and circumstances of this case, there is no remedy available to the respondent herein to approach the concerned authority under the provisions of Tenancy Act. The question whether the civil Court has right to grant injunction when a case covered under the provisions of the Tenancy Agricultural Act cannot be decided at this stage, but has to be decided after the evidence is let in. There is no quarrel with regard to the proposition that special enactment shall prevail over the general law. Whether the respondent herein has got any remedy under the special enactment is a matter required to be decided after the evidence is let in, but certainly not at this stage especially when a petition was filed under Article 227 of the Constitution of India. Whether the respondent herein has got any remedy under the special enactment is a matter required to be decided after the evidence is let in, but certainly not at this stage especially when a petition was filed under Article 227 of the Constitution of India. As there is no error of law apparent on the face of the record, the powers under Article 227 of the Constitution of India cannot be exercised. The concurrent findings of the two courts below are based upon proper appreciation of material on record. Therefore, there are no grounds to interfere with the impugned orders. 22. Accordingly, the Civil Revision Petition is dismissed confirming the order, dated 19-10-2009, in C.M.A.No.57 of 2007, on the file of the V Additional District Judge, Karimnagar. There shall be no order as to costs.