Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 809 (TS)

Atluri Pallavi v. Kesandla Narayana Reddy

2020-11-25

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

body2020
JUDGMENT M.S. Ramachandra Rao, J. - This Appeal is preferred challenging the order dt.22.09.2020 in IA.No.294 of 2020 in OS.No.70 of 2020 on the file of the XVI Additional District & Sessions Judge, Ranga Reddy at Malkajgiri. 2. The appellants herein are the plaintiffs in the above suit. 3. The said suit had been filed by the appellants against the sole respondent for a perpetual injunction restraining the respondent from interfering with their peaceful possession and enjoyment of the suit schedule property. 4. The plaint A schedule property, according to the appellants, is an extent of Acs.18.29 gts in Survey No.s 350, 351 and 353 of Boomaraspet, Medchal presently in Shameerpet Mandal of Ranga Reddy District with boundaries as they were at the time of their purchase; and the plaint A schedule property with its present boundaries is mentioned in the plaint B-Schedule. The case of the appellants 5. The case of the appellants is that their parents purchased the suit schedule property in their names in the following manner: a) an extent of Acs.4.34 gts in Survey No.s 350, 351 and 353 of Boomaraspet village was purchased in the name of the 1st appellant under a registered sale deed dtd.07.10.1985; b) another extent of Acs.4.34 gts and 50 sq. yards in the same survey numbers of the same village was purchased in the name of the 2nd appellant under a registered sale deed dt.30.09.1993; c) Ac.5.00 gts was purchased in the name of the 3rd appellant under Ex.P3 dt.30.09.1993 in the same survey numbers in the same village; and d) Acs.4.00 gts was purchased in the name of the 4th appellant under a registered sale deed-Ex.P4, dt.07.12.1985 in the same survey numbers and in the same village. 6. It is the case of the appellants that all the appellants are closely related and the extents of the lands purchased by them are in a continuous single block admeasuring Acs.18.29 gts, which is described in the plaint schedules. 7. It is their case that their uncle Achanta Atchaiah used to manage and cultivate the land since the dates of purchase till 2010, that thereafter he became sick and passed away, and thereafter they engaged a person by name Mr.Raju to protect and cultivate the land. 8. 7. It is their case that their uncle Achanta Atchaiah used to manage and cultivate the land since the dates of purchase till 2010, that thereafter he became sick and passed away, and thereafter they engaged a person by name Mr.Raju to protect and cultivate the land. 8. They contended that they were also issued new pattadar passbooks and title deeds by the State of Telangana and they are also receiving amounts per crop under the Rythu Bandhu Scheme of the State Government. They contended that the entire suit schedule property was fenced with a barbed wire. 9. According to them, there was a hike in prices on account of the fact that the subject land abuts the Outer Ring Road and since there is a possibility of encroachment, they started constructing a pakka compound wall around the suit schedule property and at that time, the respondent obstructed the construction of the compound wall on the eastern side though he had no right therein. 10. It is also mentioned that there is a small discrepancy in the new pattadar pass books and that lesser extent of land Acs.16.14 gts is shown as compared to Acs.18.29 gts, which is in fact owned by the appellants. IA.No.294 of 2020 11. Along with the suit, the appellants filed IA.No.294 of 2020 under Order XXXIX Rules 1 and 2 CPC for a temporary injunction restraining the respondent from interfering with their peaceful possession and enjoyment of the plaint B-Schedule property till the disposal of the suit. They reiterated the contents of the plaint in the said application. The stand of the respondent 12. Counter affidavit is filed in the said application by the respondent opposing grant of interim relief to the appellants. 13. It is firstly contended that the land in survey No.s 350, 351 and 353 is a large extent of land; that the respondent has also got land in survey No.s350 and 353 apart from survey No.s 354, 356 and 345; without disclosing the extent of land in their possession and without localization of the same, the appellants had filed the suit and so it was not maintainable. 14. 14. According to him, he purchased Acs.6.01 gts in survey No.s 350, 353, 354, 356 and 345 of Boomaraspet village through registered Sale Deed Ex.P15 dt.02.11.2016 and that he also obtained Title Deeds and passbooks including digital passbooks and that he is in absolute possession and enjoyment over the said land. He also claimed that he had gifted to his wife, K.Padma, under Ex.R7 Gift Deed dt.16.06.2020, Acs.2.12 gts in survey No.350 and that she is in possession of the said land. 15. It is contended that the respondent's wife by name K.Padma owns Acs.2.12 gts in survey No.350 and the respondent owns land of Acs.1.70 gts in survey No.353, Ac.1.10 gts in survey No.353, Ac.0-12 gts in survey No.356 and Ac.1.00 gts in survey No.345. 16. The respondent alleges that the petitioners, without disclosing the extent of land claimed in each of the survey numbers and the location of the property in the said survey number, cannot seek any relief in the suit and tried to grab his property. 17. It is denied that the appellants are in possession of the suit schedule property. 18. It is pointed out that appellants are in possession of only Acs.16.14 gts, which is mentioned in the digital passbooks and ROR 1B Namuna filed by the appellants. 19. The respondent also contended that in order to avoid dispute, he had proposed for survey and demarcation of the land by making an application on 07.07.2020 to the Survey Department, that the said Department authorities fixed date of survey on 05.08.2020 and also gave notice to the appellants, but the appellants objected to the survey and got it cancelled. The order of the Court below 20. In the Court below, the appellants marked Exs.P1 to P15 and the respondent marked Exs.R1 to R7. 21. By order dt.22.09.2020, the Court below dismissed IA.No.294 of 2020. 22. After recording the contentions of the parties and documents filed by them, the Court below noted that the appellants had filed Ex.sP1, P3, P4 registered sale deeds, and Ex.P2 Release Deed under which they acquired title to the property, but observed that they did not file the suit separately showing these properties and they showed only a single item of Ac.18.19 gts with different boundaries by excluding Ac.0.10 gts, which is alleged to be acquired by the Government from the property of the 4th petitioner. 23. 23. It stated that there is no material to show the extents purchased and got under different documents are at one place and that the boundaries which are shown are correct. 24. While admitting that mere mis-description in terms of survey or plot number would not be fatal as long as identity of the property is established through boundaries, the Court below held that there is no clarity as regards boundaries. 25. It also noted that the extents mentioned in Ex.P5 - 1B ROR Namuna filed by the appellants is only Acs.16.24 gts; that Ex.P5 and Exs.P7 to 10, 11 to 14, pattadar passbooks and title deeds were issued in 2016 and the appellants cannot now place reliance on Ex.P1 to P4 documents of title, to prove their possession on the date of filing of the suit. 26. It then recorded the contentions of the appellants that a mistaken entry in the pattadar passbook and title deeds Ex.P7 to P10 about the extent of land will not make the appellants lose their rights and also possession, but observed that there is a presumption that such entries are correct and their contents can be looked into at the stage of interlocutory applications. 27. It observed that appellants should have filed pahanies showing their possession instead of the new pattadar passbook and title deeds or 1B Namoona. 28. It then referred to Ex.P15, document under which the respondent had set up title to the land claimed by him and Ex.R7 Gift Deed executed by him in favour of his wife and observed that the boundaries of the said documents tally. 29. It then observed that according to the appellants, the respondent is interfering from the eastern side of the suit schedule property but they did not show the name of the neighbour on the eastern side. It also observed that the appellants did not cooperate with the respondent to get a survey done and get the respective properties demarcated. 30. It therefore held that the appellants did not establish their possession to the entire extent of Acs.18.29 gts within the specific boundaries as shown in the schedule and it therefore dismissed the I.A.No.294 of 2020. The present appeal 31. Challenging the same, this Appeal is filed. 32. Heard Sri K.V.Simhadri, counsel for the appellants and Sri V.Srinivas, counsel for the respondent. The consideration by the Court 33. The present appeal 31. Challenging the same, this Appeal is filed. 32. Heard Sri K.V.Simhadri, counsel for the appellants and Sri V.Srinivas, counsel for the respondent. The consideration by the Court 33. From the narration of facts, it is clear that the appellants are seeking temporary injunction in respect of an extent of Acs.18.29 gts situated in survey No.s 350, 351, 353 of Boomaraspet village. They have filed Ex.s P1, P3 and P4 registered sale deeds and Ex.P2 release deed, under which they acquired title to this extent. 34. It is the contention of the appellants that the property acquired under these four documents by the appellants are continuous and that they have given common boundaries to the said block of land in the plaint schedule. The boundaries according to them at the time of purchase are indicated in the plaint A schedule and the boundaries at the time of filing of the suit are indicated in the plaint B schedule. 35. In the counter affidavit filed by the respondent, he claims to be owning Acs.6.01 gts in survey No.s 350, 353, 354, 356 and 345 of the same village and Ex. R16 is the sale deed under which he has purchased the said land. No doubt he also claims to have gifted Acs.2.12 gts in Survey No.350 to his wife under Ex.R7 Gift Deed dt.16.06.2020. 36. A very important statement in the counter affidavit of the respondent in para 3(vi) is that the appellants are in possession of only Acs.16.14 gts as can be seen from digital pass book and ROR 1B Form filed by them(Ex.s P5, P7 to P14). 37. We fail to understand how this important admission of the respondent about possession of the appellants can be ignored by the Court below. 38. In fact, Ex.R1, copy of 1B ROR Namoona for the year 2020, filed by the respondent would itself show the possession of an area of Acs.16.24 gts by the appellants. 39. 37. We fail to understand how this important admission of the respondent about possession of the appellants can be ignored by the Court below. 38. In fact, Ex.R1, copy of 1B ROR Namoona for the year 2020, filed by the respondent would itself show the possession of an area of Acs.16.24 gts by the appellants. 39. So the observation of the Court below that the appellants had not filed pahanies for survey No.s 350, 351 and 353 of Boomaraspet village, where the plaint schedule property is located and that it is therefore not believing their possession over the suit schedule property, appears to be prima facie incorrect in the light of the specific admission of the respondent that Acs.16.14 gts is in the possession of the appellants and also Ex.R1. 40. It is not as if the pahanies would indicate the boundaries for the lands whose possession is indicated therein. 41. Therefore, its view that adverse inference is to be drawn against the appellants for not filing pahanies can only be said to be perverse. 42. Admittedly pattadar passbooks are issued under the A.P. Rights in Land and Pattadar Passbooks Act, 1971 only after the revenue authorities are satisfied about the possession of the land by the person to whom such pattadar passbook is issued. 43. Therefore, the Court below could not have denied temporary injunction to the appellants for the extent of land of Acs.16.24 gts, which is shown to be in the possession of appellants as per the 1B ROR Namoona (Ex.R-1) filed by the respondent himself. 44. Coming to the claim of the respondent, admittedly the respondent had purchased Acs.6.01 gts under Ex.P15 sale deed dt.02.11.2016. The Western boundary of the land of Acs.2.12 gts in Survey No.350, which is covered by the said document is in fact "agricultural land in survey No.353 part and land of vendors', but in the Gift Deed, which the respondent had executed in favour of his wife, K.Padma, which is Ex.R7 dt.16.06.2020 in respect of Ac.2.12 gts in survey No.350, he had shown the western boundary as "agricultural land in survey No.350 part of the Srikanth (3rd appellant) and others". 45. There is no explanation from the respondent how the western boundary of the Acs.2.12 gts land which he purchased under Ex.P15 suddenly changed in June, 2020 and the said extent became adjacent to the land of the appellants. 46. 45. There is no explanation from the respondent how the western boundary of the Acs.2.12 gts land which he purchased under Ex.P15 suddenly changed in June, 2020 and the said extent became adjacent to the land of the appellants. 46. No doubt, the appellants mentioned only one block of Acs.18.19 gts in the plaint after excluding Ac.0-10 gts, which has been acquired by the State Government from the property of the 4th appellant and they did not indicate in the plaint the extents separately acquired by each of them. But their case is that the separate extents purchased by each one of them form one composite block. 47. During the course of trial, this aspect can be gone into but it is not necessary in our opinion at the interlocutory stage to have conclusive proof on this aspect, because even according to the Court below any mis-description would not be fatal as long as identity of the property is established through the boundaries. 48. Merely because the extent in survey No.s 350, 351 and 353 of Boomaraspet village is large, the Court below cannot ignore the admission of the respondent as well and the contents of 1B ROR Namoona Ex.P5/Ex.R1, which showed the possession of Acs.16.24 gts by the appellants out of Acs.18.19 gts in the suit schedule property. 49. The appellants had pointed out that they had already approached the revenue authorities for rectification of the extents in the digital passbooks and title deeds Ex.P11 to P14 to reflect the correct extent of Acs.18.19 gts, and merely because such rectification has not occurred, it is not proper to deny temporary injunction to the appellants to the admitted extent of Ac.16.24 gts. 50. In this view of the matter, the Appeal is allowed partly; the order dt.22.09.2020 in IA.No.294 of 2020 in OS.No.70 of 2020 on the file of the XVI Additional District & Sessions Judge, Ranga Reddy at Malkajgiri, is set aside; and a temporary injunction is granted in favour of the appellants restraining the respondent from interfering with their peaceful possession and enjoyment of an extent of Acs.16.24 gts in survey No.s 350, 351 and 353 of Boomaraspet village till the disposal of the suit. No order as to costs. 51. Consequently, miscellaneous petitions, pending if any, shall stand closed.