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2011 DIGILAW 460 (AP)

Madala Kotaiah v. Hamsa Minerals & Exports

2011-06-23

L.NARASIMHA REDDY

body2011
Order These two revisions arise out of an order, dated 24.03.2008 passed by the Court of I Additional Junior Civil Judge, Ongole, in I.A.No.338 of 2007 in O.S.No.427 of 2007. 2. The petitioner filed the suit, against the respondents, for perpetual injunction, in respect of the suit schedule property of an extent of Acs.2.10 cents in survey No.74 and Ac.0.90 cents in survey No.71 of R.L.Puram Village, Chimakurthy Mandal, Prakasam District. It was pleaded that the original owner of the land was one Sri Pamidi Ramaswamy and that in a partition/settlement, it has fallen to the share of one of his daughters, by name A.Sayamma, the mother of the 2nd respondent. The petitioner is the son-in-law of another daughter, by name, Nagamma. He is said to have acquired the suit schedule property from Sayamma through an agreement of sale, dated 12.06.1982, at the rate of Rs.6,300/-, per acre. He stated that the entire consideration was paid and that the possession of the land was delivered to him. He pleaded that the pattadar passbooks were also issued by the competent Revenue Authority. The petitioner alleged that the 1st respondent, which is an Industry, owns land in the neighbourhood of the suit schedule property, and insisted on sale of the said property. On refusal by the petitioner to sell the property, the 1st respondent is said to have colluded with the 2nd respondent and brought into existence, the sale deed, dated 27.08.2005 and started interfering with the property on the basis of the same. 3. The petitioner filed I.A.No.338 of 2007 under Order XXXIX Rules 1 and 2 C.P.C., for temporary injunction. He asserted that he is in possession and enjoyment of the property for the past several decades and that there is no basis, or justification, on the part of the respondents to interfere with his possession. The respondents filed separate counters, opposing the application. Through its order, dated 24.03.2008, the trial Court allowed the I.A., and granted temporary injunction in favour of the petitioner. 4. Respondents 1 and 2 filed C.M.A.Nos.14 and 15 respectively, against the order in I.A.No.338 of 2007, before the Court of V Additional District Judge, Ongole. Through separate, but identical, orders, dated 24.02.2011, the Appellate Court allowed the appeals. Hence, these two revisions, under Article 227 of the Constitution of India. 5. 4. Respondents 1 and 2 filed C.M.A.Nos.14 and 15 respectively, against the order in I.A.No.338 of 2007, before the Court of V Additional District Judge, Ongole. Through separate, but identical, orders, dated 24.02.2011, the Appellate Court allowed the appeals. Hence, these two revisions, under Article 227 of the Constitution of India. 5. Sri T.Sreedhar, learned counsel for the petitioner, submits that the Appellate Court travelled beyond the scope of the I.A. and allowed the appeals and made certain observations, which would have bearing upon the merits and maintainability of the suit. He contends that though the petitioner has yet to acquire perfect title over the property, he can protect his possession, on the strength of the agreement of sale by relying upon Section 53-A of the Transfer of Property Act, (for short ‘the Act’). He submits that apart from being a source of effective defence for a defendant in a suit, Section 53-A of the Act can constitute the basis for filing an independent suit for title without claiming the relief of specific performance of the agreement. Learned counsel further submits that the material on record disclosed that the petitioner is in possession of the entire extent of Acs.3.00 of land, so much so pattadar pass books and title deeds were issued and there is absolutely no basis to the Appellate Court in reversing the findings of the trial Court. 6. Sri Y.V.Ravi Prasad, learned counsel for the respondents, on the other hand, submits that the relief of perpetual injunction cannot be claimed by a person against the true and actual owners of the property, and the suit was not maintainable in law. He contends that the so-called agreement of sale is bereft of any particulars; to such an extent that even, the survey number of the land was not mentioned and that the suit was not maintainable either on facts or in law. He submits that an extent of Ac.0.90 cents in survey No.71 was purchased by the 1st respondent from the 2nd respondent, through a sale deed dated 27.08.2005 and the petitioner has no right or interest vis-à-vis the said land. 7. Though the suit was filed for the relief of perpetual injunction in respect of Acs.3.00, the actual dispute or controversy is about Ac.0.90 cents of land in survey No.71. The petitioner based his claim in property on Ex.A.5-agreement of sale. 7. Though the suit was filed for the relief of perpetual injunction in respect of Acs.3.00, the actual dispute or controversy is about Ac.0.90 cents of land in survey No.71. The petitioner based his claim in property on Ex.A.5-agreement of sale. He was issued pattadar passbooks and title deeds and his name was entered in 1(B) extract and No.3 Adangal, marked Exs.A.1 to A.4. The respondents, on the other hand, pleaded that the suit schedule property remained with Sayamma till her death and her daughter, the 2nd respondent, succeeded to the same. She, in turn, is said to have executed the sale deed marked as Ex.R.1, dated 27.08.2005, in favour of the 1st respondent, in respect of Ac.0.90 cents of land. 8. In a suit for injunction, what becomes relevant is the factum of possession over the suit schedule property as on the date of filing of the suit. Except as a semblance of legal right to remain in possession, the law does not insist on existence of title in favour of the plaintiff in a suit of that nature. Reference to title will be only to ensure that the possession claimed by the plaintiff is not of an outright trespasser or encroacher, but is by a person having a semblance of right. Anyone who wants pronouncement upon the title in his favour, must file a suit for declaration of title. 9. Section 53-A of the Act is intended to protect the rights of the persons, who have entered into an agreement for purchase of an item of immovable property and are in possession of the property, but are facing threat of dispossession from the concerned vendors. The relief under this provision can be claimed, only by expressing readiness and willingness to perform his part of contract. In such cases, they can effectively resist the attempts of the vendors and the Court can grant the necessary relief. Instances of suits being filed solely on the basis of agreement of sale are somewhat rare. The holders of agreement of sale, in such cases, are required to file suit for specific performance of agreement of sale. Perpetual injunction can also be claimed as an ancillary relief. 10. This general understanding of Section 53-A of the Act is not absolute. Instances of suits being filed solely on the basis of agreement of sale are somewhat rare. The holders of agreement of sale, in such cases, are required to file suit for specific performance of agreement of sale. Perpetual injunction can also be claimed as an ancillary relief. 10. This general understanding of Section 53-A of the Act is not absolute. In a given case, the suit for perpetual injunction can be filed based upon the agreement of sale, even where no relief of specific performance of agreement of sale is claimed. In YenuguAchayya v. Ernaki Venkata Subba Rao AIR 1957 AP 8546, a Division Bench comprising of Chief Justice Subba Rao and Justice Viswanatha Sastri, the two giants, in the field of law, had aptly and succinctly expressed the purport of Section 53-A as under: “The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property. Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor’s claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. The utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.” 11. A note of caution, however, was added to the effect that the transferee under an agreement of sale cannot rely upon Section 53-A of the Act to recover possession. Reliance was placed upon the judgment of the Madras High Court in VeeraRaghava Rao v. Gopala Rao AIR 1942 MADRAS 125. In JahangirBegum v. Gulam Ali Ahmed AIR 1955 HYDERABAD 101, the erstwhile High Court of Hyderabad held that Section 53-A of the Act cannot be invoked by a person, who is not in possession of the property, as on the date of filing of the suit. 12. These are the questions, which, in fact, are required to be considered at the hearing of the suit. In the I.A. filed by the petitioner, the trial Court recorded a finding that the petitioner is in possession of the property, and accordingly, granted temporary injunction. The Appellate Judge, however, proceeded to express views upon the very maintainability of the suit. By referring to certain decided cases, the learned Appellate Judge observed that the suit was not maintainable, unless the relief of specific performance was claimed. Another observation made by him was that even in a suit for perpetual injunction, “title” has to be pleaded and proved and can be gone into. As observed earlier, the reference to title, if at all, would be only to know whether the person claiming the relief of perpetual injunction holds any semblance of right over the property, or is just a person, who has forcibly and without any legal basis, assumed the possession of the property. There was no basis for the Appellate Court in taking the view on the maintainability of the suit or the relevance of title. 13. There was no basis for the Appellate Court in taking the view on the maintainability of the suit or the relevance of title. 13. The 2nd respondent did not dispute the existence of agreement of sale in favour of the petitioner. Her resistance was mainly on the ground that Ex.A.5 was bereft of any particulars and the petitioner cannot derive any right vis-à-vis the suit schedule property. Apart from Ex.A.5, the petitioner filed pattadar pass books and extracts of other revenue records. The question as to whether Ex.A.5 was in respect of suit schedule property and whether it was genuine or not, needs to be examined at the hearing of the suit after trial. The petitioner has, prima facie, proved his right in relation to the property and the balance of convenience is in his favour. Further, while the petitioner intends to put the land to agricultural use, the 1st respondent proposed to use it as a dumping yard. The balance of convenience is in favour of the petitioner, to enable him to cultivate the land. 14. Hence, the revisions are allowed and the order of temporary injunction shall remain in force till the disposal of the suit. The petitioner shall however not utilize the land except for agricultural uses. The trial Court shall endeavour to dispose of the I.A., filed by the petitioner under Section 45 of the Evidence Act as early as possible and the disposal of the suit shall also be expedited. 15. There shall be no order as to costs.