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2013 DIGILAW 1069 (AP)

P. Veerabhadrappa Setty v. Polliki Chandrahas

2013-11-26

M.S.RAMACHANDRA RAO

body2013
Judgment : As the issues raised in both these appeals are connected, they are being disposed of by this common judgment. 2. C.M.A.No.286 of 2013 is filed challenging the order dt.12-02-2012 in I.A.No.608 of 2012 in O.S.No.22 of 2012 on the file of II Additional District Judge, Adoni. 3. C.M.A.No.287 of 2013 is filed challenging the order dt.12-02-2012 in I.A.No.610 of 2012 in O.S.No.23 of 2012 on the file of II Additional District Judge, Adoni. 4. The appellants in these appeals are the defendants in the above suits. 5. An extent of Ac.22.27 cts. in Sy. No.498, situated in the Halaharvi village and Mandal of Kurnool District was admittedly owned by one Chittam Ramaswamy. 6. One Veerabhadrappa Setty (1st defendant in both suits) and Venkanna Setty are brothers and are sons of one Seenappa Setty. Padmavathamma is the wife of Venkanna Setty. Seenaiah Setty (2nd defendant in both suits) is the son of the 1st defendant. 7. The 1st defendant was treated as his foster son by Chittam Ramaswamy. 8. Under a registered gift deed dt.21-05-1956 being document No.824 of 1956, Chittam Ramaswamy gifted the above property to 1st defendant. 9. O.S.No.22 of 2012 and O.S.No.23 of 2012 respectively were filed by plaintiffs before the II Additional District Judge, Kurnool for a perpetual injunction restraining the defendants from interfering with their alleged peaceful possession and enjoyment of the above extents of land. They alleged that the said gift deed dt.21.5.1956 was not acted upon; on 23-08-1990, that 1st defendant relinquished his rights over this property in favour of his brother Venkanna Setty by receiving an amount of Rs.60,000/-; that Venkanna Setty thereafter relinquished his rights in the land in favour of his wife Padmavathamma under a revenue transfer affected under Section 5A of the Andhra Pradesh Rights in Land and Pattedar Passbooks Act, 1971 (for short, ‘the Act’) by paying Rs.1,170/- towards stamp duty and Rs.240/- towards registration charges; on her death, Venkanna Setty succeeded to the property; he sold an extent of Ac.11.12 cts. out of the above land in favour of Poliki Chandrahas (plaintiff in O.S.22/2012) and the balance of Ac.11.15 cts. in favour of his brother Poliki Umesh (plaintiff in O.S.23/2012) under two registered sale deeds dt.11-04-2012; that the plaintiffs/respondents herein are in possession and enjoyment of the respective extents purchased by them; and on 20-09-2012, defendants tried to trespass into the land and dispossess them. 10. in favour of his brother Poliki Umesh (plaintiff in O.S.23/2012) under two registered sale deeds dt.11-04-2012; that the plaintiffs/respondents herein are in possession and enjoyment of the respective extents purchased by them; and on 20-09-2012, defendants tried to trespass into the land and dispossess them. 10. They also filed I.A.No.608 of 2012 and 610 of 2012 respectively in these suits under Order 39 Rules 1 and 2 CPC for a temporary injunction restraining defendants from interfering with their alleged possession and enjoyment of the plaint schedule properties. 11. In these I.As., the plaintiffs reiterated their pleadings in the plaint and contended that the revenue authorities had accepted the title of Padmavathamma and later that of Venkanna Setty by issuing pattedar passbook and title deed and also mutated their names in the revenue records. In support of the said pleas in the above I.As, the plaintiffs filed Exs.P-1 to P-18. 12. The defendants filed counter affidavits in the I.As denying the allegations made by the plaintiffs. They contended that the regd. gift deed dt.21-05-1956 was acted upon and 1st defendant was put in possession of the land; that he mortgaged it in favour of Magam Obanna on 14-02-1962 for a loan of Rs.8,000/-; subsequently it was again mortgaged to H.Narayana Reddy on 14-06-1962 for Rs.3,000/-; on 09-06-1976, there was a mortgage in favour of Chintakunta Cooperative Society for a loan of Rs.6,000/-; that on 23-08-1990, Venkanna Setty had executed any agreement to purchase the land in favour of 1st defendant for Rs.60,000/- but did not pay the agreed sale consideration or obtained possession of the suit land; therefore the defendants continue to be in possession and enjoyment of the land; that on 27-06-2012, 1st defendant executed the registered gift deed in favour of his son, the 2nd defendant; and the plaintiffs have neither prima facie case nor balance of convenience and the defendants are in possession and enjoyment of the land, no injunction be granted in their favour. In support of their plea, they filed Exs.R-1 to R-13. 13. By separate orders dt.12-02-2012, the Court below allowed the said I.As. and granted temporary injunction in favour of the plaintiffs in the respective suits against the defendants. 14. In support of their plea, they filed Exs.R-1 to R-13. 13. By separate orders dt.12-02-2012, the Court below allowed the said I.As. and granted temporary injunction in favour of the plaintiffs in the respective suits against the defendants. 14. The Court below held that the revenue entries from 1969 till 2012 in Exs.P-1 to P-18 filed by the plaintiffs indicate that Venkanna Setty is the owner of the property; that an endorsement about sale of property by Venkanna Setty in favour of the plaintiffs was made by the Tahsildar, Halaharvi in the pattedar passbook by rounding of the said extent sold under Ex.A-1; the same Tahsildar could not have issued pattedar pass book in favour of 2nd defendant in April 2012 and revenue title deed in favour of 1st defendant in June 2012 for the same land; that no enquiry appears to have been done before doing so; therefore their genuineness is in doubt; that the extent covered by the gift deed dt.12-05-1956 is only Ac.11.13 cts. in Sy. No.498-A and after he had gifted it to 2nd defendant, the 1st defendant could not have been issued a revenue title deed for the same extent; that the adangal for the year 1421 Fasli (2011) issued on 08-06-2012 shows the 1st defendant as the pattedar and possessor for entire Ac.22.27 gts. which could not have been correct as only Ac.11.13 gts. was gifted under the gift deed dt.12-05-1956; that in the pahani for 1422 Fasli, 2nd defendant is shown as the pattedar and possessor to the extent of Ac.11.13 cts. and 1st defendant is shown to be the pattedar and possessor of Ac.11.13 ? cts.; these two pahanies were prepared by the V.R.O. on 29-09-2012 and counter signed by the Tahsildar on 03-10-2012 and they create suspicion too; the creation of mortgages by respondents to various persons also create doubt; that Ex.P-13, a computer generated copy of adangal for 2012 shows Venkanna Setty as the owner and possessor of the property; therefore the plaintiffs are entitled to temporary injunction. 15. Aggrieved by the same, these C.M.As. have been filed by the defendants in the suits. 16. Heard Sri Y.Srinivasa Murthy, for Sri T.S.Anand, learned counsel for the appellants/defendants and Sri Ganta Rama Rao, learned counsel for the respondents/plaintiffs. 17. 15. Aggrieved by the same, these C.M.As. have been filed by the defendants in the suits. 16. Heard Sri Y.Srinivasa Murthy, for Sri T.S.Anand, learned counsel for the appellants/defendants and Sri Ganta Rama Rao, learned counsel for the respondents/plaintiffs. 17. The counsel for the appellants/defendants contended that the orders of the Court below are unsustainable; that the gift deed dt.12-05-1956 has not been filed by the plaintiffs to find out the extent of land gifted by Chittam Ramaswamy to the 1st defendant; there is no basis for the trial Court to come to the conclusion that only Ac.11.13 cts. was the subject matter of the said gift; that the relinquishment deed dt.23-08-1990 pleaded by the plaintiffs has also not been filed and it is not the case of the plaintiffs that it is a registered document; there cannot be any transfer of title from 1st defendant to his brother Venkanna Setty under such an unregistered document; that the unregistered sale deed by which Venkanna Setty allegedly sold the land to his wife Padmavathamma has also not been filed by the plaintiffs; that the proceedings under Section 5A of the Act regularizing such alleged sale by the Mandal Revenue Officer, Halaharavi are not binding on the defendants as they have been done behind the back of the defendants; that the entries in the revenue records filed by the plaintiffs are manipulated in collusion with the revenue officials; that defendants had also filed an application before the R.D.O., Adoni to set aside the pattedar passbooks issued to the plaintiffs, but by order Ex.R-8 dt.11-12-2012 in reference Rc (e).No.2255/2012, the Revenue Divisional Officer directed them to get the issue resolved before the Civil Court as O.S.No.22 of 2012 and 23 of 2012 are pending before the II Additional District and Sessions Judge, Adoni. They contended that plaintiffs do not have prima facie title and in Exhibits filed by plaintiffs, their possession was allegedly recorded on the basis of the proceedings under Section 5A of the Act, which are in violation of principles of natural justice, the plaintiffs cannot be taken to be in possession of the plaint schedule property and the impugned orders be set aside. 18. 18. The learned counsel for the respondents, on the other hand, contended that the orders passed by the Court below do not suffer from any infirmity; that valid reasons have been given by the Court below for granting temporary injunction in favour of plaintiffs; that only after proper enquiry, the transfer by Venkanna Setty in favour of Padmavathamma was regularized under Section 5A of the Pattadar Pass Books Act, 1971 (for short, ‘the Act’); there is a remedy of appeal provided under Section 5B of the Act r/w Rule 22A of the Rules to the R.D.O. within 30 days; that the defendants have not availed of the same; that under Section 6 of the Act, there is a presumption of correctness of entries in record of rights as true; the long possession of plaintiffs is evidence of their title; and therefore the possession of the plaintiffs as reflected in the exhibits filed by them be accepted; and the appeals be dismissed. 19. I have noted the submissions of both sides. 20. It is settled law that for grant of injunction in favour of a plaintiff, he has to make out a prima facie case, show balance of convenience in his favour and prove that irreparable injury would be caused to him, in case injunction is not granted in his favour. In Kashi Math Samsthan v. Shrimad Sudhindra Thirtha Swamy (2010) 1 SCC 689 ), the Supreme court declared : “16. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted.” 21. By applying this principle, I will first consider whether the plaintiffs have established prima facie case in their favour. 22. There is no dispute that the original owner of the property is Chittam Ramaswamy and that he executed a registered gift deed dt.12-05-1956 in favour of the 1st defendant. This deed is not filed by either party. But plaintiffs contended that only an extent of Ac.11.13 cts. was gifted under this deed in favour of 1st defendant and not the entire extent of Ac.22.27 cts. This contention of plaintiffs was accepted by the trial Court. Without the said registered gift deed being filed by the plaintiffs to prove the extent in respect of which the gift was made, it was not open to the Court below to accept this contention. 23. The plaintiffs also pleaded that there was a relinquishment deed executed on 23-08-1990 by 1st defendant in favour of Venkanna Setty by receiving an amount of Rs.60,000/-. This deed has also not been filed by plaintiffs. It is settled law that there can be no transfer of title/extinguishment of title under an unregistered and unstamped relinquishment deed in view of the provisions of the Transfer of Property Act, 1882 and the Registration Act, 1908. In Sneh Gupta v. Devi Sarup (2009) 6 SCC 194 ), the apex court held : “32. Title to a property must be determined in terms of the statutory provision. In Sneh Gupta v. Devi Sarup (2009) 6 SCC 194 ), the apex court held : “32. Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellant herein had derived title to the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of the Registration Act.”(emphasis supplied) 24. As there is no transfer of title from 1st defendant to Venkanna Setty under the alleged relinquishment deed, the 1st defendant continues to be the owner of the land. 25. In this view of the matter, Venkanna Setty could not have transferred the land in favour of his wife Padmavathamma since one cannot transfer what he does not have. In any event, even this document purporting to transfer title in favour of Padmavathamma has been suppressed by the plaintiffs. 26. Thus prima facie Padmavathamma had not obtained any title to the land, notwithstanding the proceedings under Section 5A of the Act. The plaintiffs have filed Exs.P-3 and P-4, a notice and certificate issued by the M.R.O., Halaharvi as to payment of stamp duty and registration fee to the State. Under sub Section (4) of Section 5A, such certificate is not binding on third parties like the defendants but only binds the alienor or transferor or any person claiming interest under him. The defendants do not come under any of these categories. Moreover no material is placed before this Court to prove that the said proceedings under Section 5A of the Act were done after giving notice to the affected parties such as the defendants. Therefore the said proceedings, having been obtained behind the back of the defendants and in violation of principles of natural justice, have to be treated as null and void. 27. It is contended by the counsel for the respondents/plaintiffs that the entries in the revenue records have been made on the basis of the proceedings under Section 5A of the Act issued by the M.R.O. 28. 27. It is contended by the counsel for the respondents/plaintiffs that the entries in the revenue records have been made on the basis of the proceedings under Section 5A of the Act issued by the M.R.O. 28. He relied on Section 6 of the Act and contended that entry in revenue records in plaintiffs favour have to be presumed to be true. In my opinion, the said provision provides that every entry in record of rights shall be presumed to be true until the contrary is proved. The facts and the findings set out above are sufficient to rebut the presumption, if any, in favour of the plaintiffs under Section 6 of the Act that the entries in the record of rights in their favour are correct. 29. Admittedly, the adangal for the year 1421 Fasli (2011) issued on 08-06-2012 shows the 1st defendant as the pattedar and possessor for entire Ac.22.27 gts. and in the pahani for 1422 Fasli, 2nd defendant is shown as the pattedar and possessor to the extent of Ac.11.13 cts. and 1st defendant is shown to be the pattedar and possessor of Ac.11.13 ? cts. So on the date of suit, prima facie they are in possession and enjoyment of the plaint schedule property. The defendants had questioned the grant of pattedar passbooks to the plaintiffs in an appeal before the R.D.O., Adoni but the same was rejected directing them to approach the Civil Court. Therefore the defendants cannot be found fault with for not availing the alternative remedy of appeal under Section 5B of the Act. 30. I am also unable to accept the contention of the counsel for the plaintiffs that the allegedly long possession of the plaintiffs is evidence of their title. It is settled law that mere long possession would not fructify into title, unless such possession is adverse to the real owner (Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale 92009) 12 SCC 101)). In this case, there is no such plea of acquisition of title by Venkanna Setty by adverse possession as against the defendants. 31. It is settled law that entries in revenue record are not proof of title [see (Thakur) Nirman Singh and Others Vs. Thakur Lal Rudra Partab Narain Singh and Others (AIR 1926 P.C. 100)]. Such entries facilitate collection of revenue. That is why there is no conclusive presumption provided in Section 6 of the Act. 31. It is settled law that entries in revenue record are not proof of title [see (Thakur) Nirman Singh and Others Vs. Thakur Lal Rudra Partab Narain Singh and Others (AIR 1926 P.C. 100)]. Such entries facilitate collection of revenue. That is why there is no conclusive presumption provided in Section 6 of the Act. It is unfortunate that provisions like Section 5A of the Act are being misused by litigants in collusion with revenue authorities, unsettling settled title in favour of the actual owners. This case is a classic illustration of this phenomenon. 32. The conduct of the plaintiffs in suppressing (i) the regd. gift deed dt.12.5.1956 in favour of 1st defendant by Chittam Ramaswamy, (ii) the unregistered relinquishment deed by 1st defendant in favour of Venkanna Setty and (iii) the sale deed allegedly executed by him in favour of Padmavathamma, also disentitle them to grant of the equitable relief of injunction, as they have not come to the court with clean hands. 33. Since the plaintiffs are found not to have prima facie title, even assuming for the sake of argument without conceding that they are in possession of the land, grant of injunction in their favour would amount to granting an injunction against the lawful owner. This is not permissible in law. (See Hanumanthappa v. Muninarayanappa ( (1996) 11 SCC 696 )) 34. For all the above reasons, I am hold that the orders passed by the court below are unsustainable. The court below unfortunately did not consider the matter in the above manner and it gave more importance to the entries in the revenue records produced by the plaintiffs and rejected those produced by the defendants ignoring the principles of law governing transfer of title referred to supra. 35. Therefore the orders dt. 12.2.2013 in IA.No.608/2012 in O.S.22/2013 and in I.A.610/2012 in O.S .23/2012 of the Court below are contrary to law and are set aside. 36. The C.M.As. are accordingly allowed. No costs. 37. Miscellaneous applications pending, if any, shall stand closed.