Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 591 (AP)

J. Balakrishna Raju v. J. Radhakrishna Raju

2014-04-25

M.SEETHARAMA MURTI

body2014
ORDER M. Seetharama Murti, J. 1. The unsuccessful defendant had preferred this Civil Revision Petition under Article 227 of the Constitution of India assailing the orders dated 08.08.2013 of the learned IX Additional District Judge, Wanaparthy of Mahabubnagar District made in C.M.A. No. 1 of 2013, whereby, the learned Additional District Judge while allowing the appeal of the plaintiff/respondent herein had set aside the order and decretal order dated 28.11.2012 of the learned Junior Civil Judge, at Kollapur made in I.A. No. 27 of 2012 in O.S. No. 11 of 2012 filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of a temporary injunction restraining the defendant/revision petitioner from interfering with the plaintiff's peaceful possession and enjoyment of agricultural land in an extent of Ac.0.27 guntas in Sy. No. 346, Ac.0.33 guntas in Sy. No. 347, Ac.0.29 guntas in Sy. No. 348 and Ac.1.05 guntas in Sy. No. 349 in a contiguous plot situated at Kalvarala village, Panagal Mandal, Kollapur Sub Division, Mahaboobnagar District, more fully described in the schedule annexed to the plaint and the petition. The facts leading to the present Civil Revision Petition, in brief, are as follows:-"The plaintiff had filed against the sole defendant a suit for perpetual injunction in respect of the above said schedule properties. The defendant had filed a written statement and is resisting the suit. Along with the suit, the plaintiff had filed Interlocutory application for grant of temporary injunction. The said petition was dismissed by the trial Court. The Civil Miscellaneous Appeal preferred by the plaintiff was allowed. Therefore, the defendant had preferred this Civil Revision Petition." 2. (a) The case of the plaintiff, in brief, is as follows: "The plaintiff, the defendant and their two brothers, namely, J. Venkata Krishna Raju and J. Gopal Krishna Raju are sons of late Narasa Raju. All the four brothers had partitioned their ancestral properties on 05.05.1983; and ever since, they are in exclusive possession and enjoyment of the properties that fell to their respective shares. The partition among the brothers was reduced into writing in the presence of the witnesses and each of the brothers had signed the list of partition. In the said partition, the plaint schedule properties fell to the share of the plaintiff. The plaintiff is in exclusive possession and enjoyment of the properties that fell to his share. The partition among the brothers was reduced into writing in the presence of the witnesses and each of the brothers had signed the list of partition. In the said partition, the plaint schedule properties fell to the share of the plaintiff. The plaintiff is in exclusive possession and enjoyment of the properties that fell to his share. The plaintiff is enjoying the lands by leasing out the lands. The plaintiff was also issued pattadar passbook and title deed book by the revenue authorities. The adangal extracts also evidence the said true facts. Thus, the plaintiff is the absolute owner of the plaint schedule properties and is in peaceful possession and enjoyment of the same. While so, the defendant without any manner of right in the plaint schedule property had made attempts to trespass into the same and the same were averted by the plaintiff. The plaintiff had also lodged a caveat in view of the earlier attempts made by the defendant to trespass into the plaint schedule land and as the plaintiff had apprehended that the defendant may file a suit and obtain ex parte interim injunction order against the plaintiff. Having lodged a caveat, the defendant with his men, made an attempt during the second week of December 2011 to forcibly trespass into the plaint schedule lands. The plaintiff could avert such unlawful acts of the defendant with the intervention of the elderly people. Since the defendant is bent upon to somehow trespass into and occupy the plaint schedule property of the plaintiff, he is constrained to file the suit and the application for temporary injunction." 2. (b) On the other hand, the defence of the defendant, in brief, is this: "The relationship is true. The defendant, the plaintiff and their two brothers have partitioned their ancestral property on 05.05.1983 is true. It is not true to say that since then they are in exclusive possession and enjoyment of the properties which fell to their respective shares. The plaintiff is in exclusive possession and enjoyment of the property that fell to his share and that the plaintiff is enjoying the land by leasing out the lands is not true. The plaintiff had colluded with the revenue authorities and had created false documents and filed the same before this Court. The plaintiff is the absolute owner in peaceful possession and enjoyment of the schedule property is false. The plaintiff had colluded with the revenue authorities and had created false documents and filed the same before this Court. The plaintiff is the absolute owner in peaceful possession and enjoyment of the schedule property is false. After the partition of the ancestral properties on 05.05.1983, the plaintiff had sold out an extent of Ac.4.16 guntas in Sy. No. 358 to one Golla Yeddanna; and Ac.0.13 guntas of land in Sy. No. 348 was acquired by the Government for Jurala Canal out of Ac.8.10 guntas, i.e., from his share of land. After that on 18.04.2003, the plaintiff had sold out the suit land in an extent of Ac.2.00 from out of his share of land, to the defendant for a consideration of Rs. 40,000/- per acre through a simple sale agreement and had orally delivered the possession. The defendant had paid Rs. 77,000/- to the plaintiff. Thereafter, the defendant had requested the plaintiff a number of times for measurement and registration of the land. The plaintiff had postponed the matter number of times and had demanded high price and had filed the false suit against the defendant. In the year 1980, the defendant had purchased Ac.0.20 guntas of land, near the suit land, from his sister and had got dug up an open well and got laid a pipe line from the open well to the suit land and other lands and had converted the dry lands into wet lands. Since the date of purchase, the defendant is the owner and possessor of the suit land and is cultivating the suit land regularly without any objection from anybody. There is no house property and cultivable land to the plaintiff in Kalwarala village of Pangal Mandal. The plaintiff is a retired employee and is residing in Kurnool Town only. As the agreement is a simple sale agreement, the plaintiff is harassing the defendant for registration of the sale deed. The defendant had invested huge amount for leveling of the land and laying the pipeline. As such, the defendant is in possession of the suit land and has perfected his title being in continuous possession from the date of the purchase. The suit against the defendant who is the real owner is not maintainable." 3. At the time of enquiry before the trial court, Exhibits P1 to P10 and R1 to R8 were exhibited. No oral evidence was adduced on either side. The suit against the defendant who is the real owner is not maintainable." 3. At the time of enquiry before the trial court, Exhibits P1 to P10 and R1 to R8 were exhibited. No oral evidence was adduced on either side. On merits, the trial Court had dismissed the application of the plaintiff. However, the Court of first appeal had allowed the Civil Miscellaneous Appeal and had granted temporary injunction in favour of the plaintiff while setting aside the order of the trial Court. Hence, this Civil Revision Petition by the defendant. 4. I have heard the submissions of the learned counsel for both the sides. I have carefully perused the material record. 5. The point for determination is -- 'Whether the plaintiff had established lawful possession over the suit schedule property as on the date of the suit and at all relevant times and had made out valid and sufficient grounds and had satisfied the cardinal principles for granting a temporary injunction? And if so, whether the impugned order is to be confirmed and the revision is liable to be dismissed? 6. In an application for temporary injunction, the initial onus of proof as well as the legal burden to prove a prima facie case of lawful possession of the plaintiff over the suit land is on the plaintiff. As no oral evidence was adduced in the interlocutory application, it is necessary to refer to the documents exhibited. Exhibits P1 and P2 are the pattedar passbook and the title deed book; Exhibit P3 is the certified copy of ROR proceedings. The said documents were obtained by the plaintiff not only in respect of the suit schedule property but also in respect of his other properties. The said documents, on a careful perusal, would show that the plaintiff is the lawful possessor ex facie of the plaint schedule property. Exhibit P4 is the certified copy of the pahani for the year 1990-1991 and Exhibits P6 to P10 are the certified copies of the pahanies for the year 2011-2012. The said documents, which amply establish the prima facie case of the plaintiff also support the version of the plaintiff in regard to his lawful possession over the suit lands. Now, before going to the Exhibits in 'B' series, the case of the plaintiff and the defence need examination in juxtaposition. The said documents, which amply establish the prima facie case of the plaintiff also support the version of the plaintiff in regard to his lawful possession over the suit lands. Now, before going to the Exhibits in 'B' series, the case of the plaintiff and the defence need examination in juxtaposition. There is a partition between the brothers and that in the partition, the plaint schedule properties fell to the share of the plaintiff is admitted. Therefore, the initial onus which is on the plaintiff to prove a prima facie case stands discharged. The defence of the defendant is that after the partition of the ancestral properties on 05.05.1983, the plaintiff had sold out an extent of Ac.4.16 guntas in Sy. No. 358 to one Golla Yeddanna; and Ac.0.13 guntas of land in Sy. No. 348 was acquired by the Government for Jurala Canal out of Ac.8.10 guntas i.e., from his share of land and that after that on 18.04.2003, the plaintiff had sold out the suit land in an extent of Ac.2.00 from his share of land, to the defendant for a consideration of Rs. 40,000/- per acre through a simple sale agreement and had orally delivered the possession and that the defendant had paid Rs. 77,000/- to the plaintiff and that as the agreement is a simple agreement the plaintiff is harassing the defendant without registering the sale deed in spite of number of requests by the defendant to measure and register the land. Though, it is his case that he had purchased Ac.2.00 guntas from out of the share of the lands of the plaintiff, the defendant did not exhibit any such agreement. Even if such agreement is on a white paper or some such paper the defendant ought to have paid the stamp duty and penalty by having recourse to the procedure under law and ought to have exhibited the same. It was not so. The different extents of land totalling to Ac.2.00 guntas and the survey numbers of the said lands covered by the said agreement are not mentioned in the defence. It is only stated that the agreement is in respect of the suit land. It was not so. The different extents of land totalling to Ac.2.00 guntas and the survey numbers of the said lands covered by the said agreement are not mentioned in the defence. It is only stated that the agreement is in respect of the suit land. Though the agreement is of the year 2003 and the plaintiff had allegedly did not honour a number of requests of the defendant to measure the land and execute a registered sale deed and is allegedly harassing the defendant, no suit for specific performance is filed till date as per the defence of the defendant. Though, he had pleaded that he had purchased Ac.0.20 guntas of land from his own sister and that the said land is situated in the vicinity of the plaint schedule property and had further pleaded that he had dug up a Well in the said land purchased from his sister and had laid pipeline from the said land to the suit land and other lands and had converted dry lands into wet lands, he did not file and exhibit the copy of the sale deed executed by his sister in his favour in respect of the said land and did not file any document except copies of the pahanies. Even according to his own defence, the delivery of the possession of the suit land in an extent of Ac.2.00 guntas is not evidenced by any recital in the said simple agreement of sale. In a suit for perpetual injunction, where lawful possession as on the date of the suit and at all relevant times is of paramount importance, in the written statement and the counter of the defendant, it is not originally mentioned that possession of the said land was delivered pursuant to the said agreement. However, the words "and orally delivered the possession" were added in ink by interpolation in the written statement and in the counter of the defendant. Even as per the admitted defence of the defendant; the defendant was not in possession and enjoyment of any part of the plaint schedule property of the plaintiff till 18.04.2003, the simple agreement of sale pleaded by him. Even as per the admitted defence of the defendant; the defendant was not in possession and enjoyment of any part of the plaint schedule property of the plaintiff till 18.04.2003, the simple agreement of sale pleaded by him. Therefore, in the light of the documents exhibited on the side of the plaintiff and in the light of the defence which is examined supra, it follows that the onus to dislodge the prima facie case established by the plaintiff, which had shifted to the defendant is not discharged. Exhibits R1 and R2 stand in the name of the father of the parties. The certified copies of pahanies for the years 2004-05, 2005-06, 2006-07, 2006-07, 2008-09 and 2008-09 under Exhibits R3 to R7, on a perusal, would show that the plaintiff's name was mentioned as pattedar and the name of the defendant is mentioned in the column intended for occupant or enjoyer and the source is mentioned as 'Khareed dar'/purchaser. Even according to the defendant's case, he did not obtain any regular registered sale deed in his favour in respect of Ac.2.00 gts of land and that his purchase is only by virtue of a simple agreement to sell and that the agreement also does not evidence delivery of possession. Though, it is pleaded that possession was orally delivered, the date on which the possession was orally delivered is not pleaded. It is settled law that the plea of adverse possession is not open to an agreement holder of the property. Therefore, the defendant cannot claim title to the said extent of property in the absence of a regular registered sale deed in his favour. Therefore, it remained unexplained as to how the name of the defendant had appeared in the pahanies as Kharred dar/purchaser. The copies of the pattedar passbook and the title deed book and also the copy of the ROR proceedings, which have more probative value have their own precedence in the facts and circumstances of the case and they have to be given their due weight. Even though it is the case of the defendant that the plaintiff had colluded with the revenue authorities and created false documents and had filed the same before the Court, it appears that no steps are taken for cancellation of the entries in the revenue records. Even though it is the case of the defendant that the plaintiff had colluded with the revenue authorities and created false documents and had filed the same before the Court, it appears that no steps are taken for cancellation of the entries in the revenue records. It is pertinent to observe that the defendant did not even choose to file counter affidavit or a verified counter in the interlocutory application. Therefore, on a harmonious consideration of the documentary evidence in juxtaposition with the pleadings of both the sides, it appears that the prima facie case established by the plaintiff is not dislodged and therefore, it follows that the plaintiff had established a prima facie case, which is a sine qua non and could show that the balance of convenience is also in his favour. On weighing competing possibilities or probabilities of likelihood of injury, i.e., amount of substantial mischief or injury which is likely to be caused if injunction is refused and comparing it with that which is likely to be caused to the other side if the injunction is granted, this Court is satisfied that the balance of convenience is only in favour of the plaintiff. The points are accordingly answered against the revision petitioner/defendant. Therefore, this Court finds that the order impugned does not brook interference. In the result, the Civil Revision Petition is dismissed without costs. Miscellaneous petitions, if any, pending in this revision shall stand dismissed. Petition dismissed.