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2025 DIGILAW 1891 (TS)

Mohd Yousuf v. Bekkari Ram Reddy

2025-12-22

RENUKA YARA

body2025
JUDGMENT : RENUKA YARA, J. Heard Sri Mohd. Ghulam Rasool, learned counsel for the appellants and Sri Raja Gopallavan Tayi, learned counsel for respondent onadmission. Perused the entire record. 2. The Second Appeal is preferred by the respondents/plaintiffs aggrieved by the judgment and decree dated 19.09.2025 in A.S.No.72 of 2023 on the file of the learned IV Additional District Judge, Mahabubnagar (‘First Appellate Court’), wherein the judgment and decree dated 05.06.2023 in O.S.No.12 of 2014 passed by the learned Principal Junior Civil Judge, Mahabubnagar (‘Trial Court’), has been set aside by reversing the decree of perpetual injunction granted in favour of theplaintiffs/appellants herein. 3. The background facts of the case are that the appellants herein have filed a suit of perpetual injunction against the respondents herein to restrain them from interfering with the suit schedule property consisting of plot to an extent of 1,000 square yards in Ward No.1, Block No.10 situated at S.S.Gutta, Mahabubnagar. The appellants claim that one Sardari Begum was the original landlord owner at S.S.Gutta, Mahabubnagar. She has sold 1000 square yards of land to one Anjaiah Goud under a registered sale deed and said Anjaiah Goud has sold the property to Shaik Mahaboob and also one Yousuf Bee purchased 500 square yards of land under separate registered sale deed and Syedunisa Begum purchased 500 square yards for Sadari Begum. After Anjaiah Goud sold the 1000 square yards of land to Shaik Mahaboob, his legal heirs have sold said land to the appellants. Shaik Mahaboob sold the land to Habeeb Mohammed and Habeeb Mohammed in turn old the land to the appellants and delivered vacant possession. The appellants have also obtained municipality permission for construction of compound wall and a room in the suit schedule property. In proof of their title and possession, the appellants have relied upon Ex.A-1 registered sale deed document No.592/1963 dated 12.06.1963, Ex.A-2 registered sale deed document No.1941/2002 dated 14.05.2002, Ex.A-3 registered sale deed document No.59/2003 dated 06.01.2003 and Ex.A-4 permission of municipality, dated 21.10.2003. While the appellants intended to construct compound wall and room, there was interference from Bala Krishna Reddy and therefore, a suit in O.S.No.383 of 2003 was filed seeking perpetual injunction, but said suit was dismissed for default. Thereafter, in the year 2008 when one Sayad Izaz Shoukat Ali interfered with the appellants’ possession and the suit in O.S.No.328 of 2006 was filed and the same is pending. Thereafter, in the year 2008 when one Sayad Izaz Shoukat Ali interfered with the appellants’ possession and the suit in O.S.No.328 of 2006 was filed and the same is pending. The said Bala Krishna Reddy filed a petition to implead himself in O.S.No.328 of 2006 and he is impleaded as defendant No.3 in said suit. While things stood thus, on 05.01.2014, 10.01.2014 and 21.01.2014 there was interference in the suit schedule property by the defendant/respondent herein with attempts to forcibly occupy the land of the appellants.Therefore, suit for perpetual injunction has been filed. 4. The respondent has filed written statement claiming that he is owner of 577 square yards of land having purchased from BKR Estates. The said BKR Estates purchased the land from Nizamunnisa Begum and Nizamunnisa Begum had purchased said land from one Sampath Kumar. Further, it is the case of the respondent that Shaik Mahaboob and his legal heirs have filed O.S.No.30 of 1981 against E. Kishan and others for declaration of title over 1000 square yards of land and said suit was dismissed. Having failed to prove the title before a competent Court, Shaik Mahaboob has sold the suit schedule property under false sale deeds to the vendors of the plaintiffs/appellants. It is pleaded that the sale deeds and link documents of the appellants do not contain survey numbers and extents and boundaries. It is pleaded that the appellants’ vendor’s vendor i.e., Shaik Mahaboob did not have title and therefore, he could not pass better title to Shaik Mahaboob and Shaik Mahaboob, as such, the appellants do not have title to the suit schedule property. In fact, the suit schedule property includes 577 square yards of land which belongs to the respondent. The appellants are attempting to encroach into the land of the respondent is the version presented by the respondent. Further, it is pleaded that the appellants have filed suit in O.S.No.383 of 2003 against the vendor of the respondent seeking perpetual injunction and said suit was dismissed. Then, the appellants preferred C.M.A.No.12 of 2014 and the same was dismissed. Thereafter, the suit in O.S.No.383 of 2003 itself was dismissed for default. To sum up, the respondent pleaded that the appellants do not have any title or possession over the suit schedule property and therefore, they are not entitled to relief of perpetual injunction. 5. Then, the appellants preferred C.M.A.No.12 of 2014 and the same was dismissed. Thereafter, the suit in O.S.No.383 of 2003 itself was dismissed for default. To sum up, the respondent pleaded that the appellants do not have any title or possession over the suit schedule property and therefore, they are not entitled to relief of perpetual injunction. 5. The appellants filed rejoinder, alleging that dismissal of O.S.No.18 of 1984 was on technical grounds and therefore, said judgment cannot operate as res judicata. Further, it is clarified that the original sale deed dated 12.06.1963 which is in favour of vendors of the appellants would prevail over the sale deed of the respondent which is later in time. It is further emphasized that there are no details about the vendor of Sampath Kumar from whom the respondent is claiming title. Referring to the contention of the respondent that there is no survey number in the sale deed and link documents of the appellants, it is pointed that the documents relied upon by the respondent also do not contain survey number. 6. The respondent has relied upon Ex.B-1 certified copy of plaint in O.S.No.18/1984, Ex.B-2 certified copy of the judgment and decree in O.S.No.18/1984, Ex.B-3 judgment and decree passed in I.A.No.955/2004, Ex.B-4 certified copy of O.S.No.383/2003, Ex.B-5 certified copy of the judgment and decree in C.M.A.No.12/2004, Ex.B-6 certified copy of the judgment, Ex.B-7 original registered sale deed document No.6188/2013, dated 07.06.2013, Ex.B-8 original registered sale deed document No.3673/2000, dated 27.11.2000 and Ex.B-9 original registered sale deed document No.164/1975, dated 06.09.1975 with English translation. 7. Upon examining the evidence adduced by the parties, the Trial Court came to a conclusion that the version presented by the appellants about purchasing the suit land from Habeeb Mohammed, who purchased from Shaik Mahaboob and in turn Shaik Mahaboob purchased from Sardari Begum in 1963 are supported by Exs.A-1 to A-3. It is held that the respondent did not file any document to show from whom Sampath Kumar purchased the land and Ex.A-4 was filed before the Court, but P.W.1 stated that he does not know about O.S.No.383 of 2003 being dismissed against Bala Krishna Reddy. Referring to the documents of the respondents, it is held that Ex.B-7 shows the capacity of Bala Krishna Reddy i.e., his role in representing BKR Estates Private Limited and his capacity to execute Ex.B-1. Referring to the documents of the respondents, it is held that Ex.B-7 shows the capacity of Bala Krishna Reddy i.e., his role in representing BKR Estates Private Limited and his capacity to execute Ex.B-1. It is held that Ex.B-9 shows that Nizamiunissa Begum purchased the plot from Sampath Kumar who was a minor as per Ex.B-9 and is represented by guardian father G. Raghaiah. It is observed that there is no denial of purchase of 1000 square yards from Sardari Begum and children of Shaik Mahaboob by D.W.1 and denial of the said transaction for lack of knowledge was not the reason for discarding the contents of Exs.A-1 to A- 3. The Trial Court has held that it feels that plaintiffs/appellants herein are in actual possession of the suit schedule property having purchased the same from the rightful owner as all the documents are filed on behalf of the plaintiffs/appellants. Coming to the objection of non-identification of the suit schedule property, it is held that Ex.A-3 shows the boundaries and descriptions of the suit property together with measurements and boundaries and therefore, discarded said objection and proceeded to grant decree of perpetual injunction. 8. Aggrieved by the judgment and decree passed by the learned Trial Court, the respondent has preferred A.S.No.27 of 2023 before the learned First Appellate Court. In the appeal, the First Appellate Court has considered the pleadings, the evidence and the findings of the Trial Court and proceeded to examine the grounds of appeal. In grounds of appeal, it is contended that there is a cloud on title as vendors’ vendor of the appellants who admittedly filed suit in O.S.No.18 of 1984 for declaration of title and recovery of possession with respect to scheduled property of 1000 square yards against three parties and said suit was dismissed on merits by judgment and decree under Exs.B-1 and B-2. When said persons have lost the suit, they do not have any right to sell the suit schedule property to the vendor of the appellants by name Habeeb Mohammed under Ex.A-2 and the appellants cannot purchase the suit schedule property from him under Ex.A-3. It is emphasized that no legal right or title passed to the vendor of the appellants under Ex.A-2, as the appellants' vendors have lost suit under Ex.B-2. It is emphasized that no legal right or title passed to the vendor of the appellants under Ex.A-2, as the appellants' vendors have lost suit under Ex.B-2. There is admission by P.W.1 about his vendor's vendor losing the suit for declaration of title and recovery of possession. Therefore, according to the respondent, there cannot be any transfer of title under Ex.A-2. 9. It is held that the Trial Court overlooked crucial admissions made by P.W.1 to the effect that the appellants have purchased the property by taking responsibility of getting all the title disputes resolved at their own costs and that said admissions show that the appellants are not bona fide purchasers. It is contented that on account of cloud over the title of the appellants suit for injunction simplicitor is not maintainable and there ought to have been a suit for declaration of title. 10. In appeal, the appellants herein have filed Order XLI Rule 27 of CPC to receive original registered sale deed document No. 593 of 1963 and to replace the same as Ex.A-1. It is noticed that said document was filed along with the suit but not marked, and since no prejudice would be caused said interlocutory application in I.A.No.395 of 2023 has been allowed. Having allowed said interlocutory application, the First Appellate Court held that the main suit was filed for relief of perpetual injunction with respect to 1000 square yards of land which is purchased by the appellants under Ex.A-3 registered sale deed document No.59/2003 dated 06.01.2003. The vendor Habeeb Mohammed under Ex.A-3 purchased from the legal heirs of Shaik Mahaboob under Ex.A-2 registered sale deed document No.1941/2002 dated 14.05.2002. The property is sold by legal heirs of Shaik Mahaboob to Habeeb Mohammed. 11. It is the case of the respondent that when there is a serious cloud over title of Shaik Mahaboob as per the civil suit in O.S.No.18 of 1984, when said Shaik Mahaboob died during pendency of the suit, his legal heirs were included as plaintiffs in the suit. The suit in O.S.No.18 of 1984 was for declaration of title and recovery of possession as evidenced under Ex.B-1 and B-2. Said suit was dismissed by judgment and decree dated 11.04.2002. The suit in O.S.No.18 of 1984 was for declaration of title and recovery of possession as evidenced under Ex.B-1 and B-2. Said suit was dismissed by judgment and decree dated 11.04.2002. Since the legal heirs of Shaik Mahaboob have lost the case for declaration of title, they do not have any right or interest to sell the suit plot under Ex.A-2 to Habeeb Mohammed and Habeeb Mohammed in turn had no right and title to sell the suit land to the appellants. 12. It is also observed by the First Appellate Court that O.S.No.18 of 1984 was erroneously dismissed on account of non-examination of attestors to the registered sale deed. Though, such a finding is untenable, it is held that until unless said judgment is challenged before a competent Court and that judgment and decree are set aside, said judgment and decree continue to be in force. However, the legal heirs of Habeeb Mohammed have not preferred appeal and said judgment and decree have become final. Having lost suit for declaration of title, the legal heirs of Shaik Mahaboob did not have any right and title to pass under Ex.A-2 to Habeeb Mohammed. Further, reference is made to the oral evidence of P.W.1 about dismissal of the suit in O.S.No.18 of 1984 and its knowledge. It is held that the P.W.1 suit schedule property was purchased knowing the earlier round of litigation, wherein the appellants have taken responsibility to clear the title disputes at their own expense. It is held that in spite of having knowledge about the dispute over the suit schedule property, the appellants have purchased the suit land. Since there is serious cloud over the title of the suit schedule property, it is held that mere suit for injunction is not maintainable and that title or possession accrued by the appellants from their vendors is not rightful. On the basis of aforementioned reasoning, the First Appellate Court has set aside the judgment and decree passed by the Trial Court. 13. On the basis of aforementioned reasoning, the First Appellate Court has set aside the judgment and decree passed by the Trial Court. 13. Aggrieved by the judgment and decree passed by the First Appellate Court, the appellants/plaintiffs have preferred Second Appeal, raising the following substantial questions of law: A. Whether the lower appellate Court justified by passing judgment and decree against the appellants/plaintiffs by following principles of res judicata under Section 11 of CPC, where the suit was dismissed per default for non-prosecution the res judicata will apply subsequent filing suit or not? B. Whether the lower appellate Court rightly considered or perversed the judgment passed by the trial Court in O.S.No.12 of 2014, when there is specifically no mentioned the survey number of the land and also in the link document filed by the respondent’s vendor’s vendor arriving the wrong conclusion and passing the judgment and decree against the appellants/plaintiffs justified or not? C. Whether the lower appellate court arriving the wrong conclusion raising the clouds against the title of the property by considering I.A.No.395 of 2023 receiving the original regd. sale deed vide Doc.No.593/1963 dt.12.06.1963 marked as Ex.A-5 is title deed or not? D. Whether the appellants/plaintiffs are in actual and lawful possession of suit property and whether the appellants purchased suit property from the rightful owner? E. Whether the appellants have given the correct descriptions of the suit property or not in comparison with the respondent schedule property having no any survey number in the registered document as well as link document filed by the defendant? 14. When the above substantial questions of law are considered, it is seen that none of the questions are actually related to the findings given by the First Appellate Court. Coming to the question at Sl.No.A, it is about passing judgment and decree on the basis of principles of res judicata under Section 11 of CPC. The First Appellate Court has not relied upon the concept of res judicata while passing the judgment and decree against the appellants/plaintiffs. The First Appellate Court merely referred to the judgment and decree in O.S.No.18 of 1984, wherein, a suit for declaration of title and recovery of possession filed by the vendors of the appellants herein was dismissed i.e., the suit filed by Shaik Mahaboob was adjudicated, during its pendency Shaik Mahaboob died and his legal heirs have lost the suit. The First Appellate Court merely referred to the judgment and decree in O.S.No.18 of 1984, wherein, a suit for declaration of title and recovery of possession filed by the vendors of the appellants herein was dismissed i.e., the suit filed by Shaik Mahaboob was adjudicated, during its pendency Shaik Mahaboob died and his legal heirs have lost the suit. After losing the suit for declaration of title and recovery of possession the legal heirs of the deceased Shaik Mahaboob have executed Ex.A-2 registered sale deed document No.1941/2002 dated14.05.2002 in favour of Habeeb Mohammed. This discussion of sequence of events does have a discussion about the flow of title as claimed by the appellants, but has no reference to the principals of res judicata. 15. Coming to the substantial question of law at Sl.No.B, it is about O.S.No.12 of 2014, where there is no specific mention of survey number in the link document of the respondent’s vendor. A perusal of the documents marked under both A series and B series do not show any reference to any suit in O.S.No.12 of 2014 and said substantial question of law is completely baseless. 16. Now, the substantial question of law at Sl.No.C is reference to I.A.No.395 of 2023 receiving document No.593 of 1963 casting a doubt over the title of the appellants. A discussion of the First Appellate court with respect to document No.593 of 1963 does not raise any cloud about the title of the appellants. Rather, the contents of Exs.B-1 and B-2 judgment and decree in O.S.No.18 of 1984 have become crucial for holding the title against the appellants. 17. The substantial question of law at Sl.No.D is about actual possession of the suit property by the appellants and whether said property is purchased from the rightful owner. It is seen that except filing Exs.A-1 to A-4, since the plot is an open plot, there is no means for proving possession over said property. Such being the case, as per the judgment in Anathula Sudhakar v. P. Buchi Reddy , (2008) 4 SCC 594 , with respect to immovable property which is open plot, possession follows de jure title. Such being the case, as per the judgment in Anathula Sudhakar v. P. Buchi Reddy , (2008) 4 SCC 594 , with respect to immovable property which is open plot, possession follows de jure title. The First Appellate Court has made a correct assessment of the title and possession of the respective parties, whereas the Trial Court has made a grave error in not examining the contents of Exs.B-1 and B-2 i.e., judgment and decree in O.S.No.18 of1984. 18. Lastly, the substantial question of law at Sl.No.E is about description of the suit property and its comparison with the respondent’s property and the respondent’s registered document not containing the survey number. It may be true that the respondent’s documents do not contain survey number. However, as per Section 101 of Indian Evidence Act, the burden of proof is always on the plaintiffs/appellants, who approached the Court and they cannot rely upon the weakness of the respondent's case to seek declaration of title. 19. A perusal of the judgment and decree passed by the Trial Court shows that there was hardly any discussion and comparison of the contents of Exs.A-1 to A-3 vis-à-vis the documents marked in B series under Exs.B- 1 to B-9. More particularly, there was a need for examination of the title of the appellants vis-à-vis the judgment and decree passed in O.S.No.18 of 1984 under Exs.B-1 and B-2, as such, a study or scrutiny would have shown that the appellants title was defective for the simple reason that the appellants’ vendor’s vendor had lost a suit for declaration of title and recovery of possession. Having lost the suit, instead of challenging the same by way of appeal, the legal heirs of Shaik Mahaboob have cleverly sold the suit schedule property to Habeeb Mohammed and Habeeb Mohammed in turn sold the suit land to the appellants herein. 20. Now, coming to the case of the appellants, the appellants have clearly admitted that they have knowledge about the earlier round of litigation i.e., in O.S.No.18 of 1984 and their vendor’s vendor having lost to the suit for title and declaration of title and recovery of possession. The appellants were confident about contesting the litigation and clearing the dispute over title and with such confidence have purchased the suit land. The appellants were confident about contesting the litigation and clearing the dispute over title and with such confidence have purchased the suit land. Once the admissions made by the appellants through evidence of P.W.1 are taken into consideration, it is seen that the appellants had complete knowledge about cloud over the title of the suit land with the respondent claiming 577 square yards out of total extent of 1000 square yards which is the suit schedule property. In spite of having such knowledge, the appellants have filed a suit for injunction simplicitor by suppressing about the result of earlier suit in O.S.No.18 of 1984, which was disposed of in the year 2002. This conduct shows that the appellants had knowledge about the dispute over the suit schedule land and that they purchased the suit land by undertaking the risk of clearing the title dispute. Further, the knowledge about losing the suit in O.S.No.18 of 1984 shows that the appellants’ vendor’s vendor i.e., Shaik Mahaboob did not have possession over the suit land. When the vendors of the appellants did not have possession over the suit land, there is no question of delivery of possession of the same to the subsequent purchaser i.e., Habeeb Mohammed and Habeeb Mohammed could not have delivered the possession of suit land to the appellants herein. 21. In view of this fact situation and the documentary evidence adduced before the Trial Court, this Court is of the considered opinion that the judgment and decree passed by the First Appellate Court is based on sound appreciation of facts and law, whereas there was failure on the part of the Trial Court in assessing both the facts and the evidence together with application of law. As such, this Court sees no reason to interfere with the judgment and decree passed by the First Appellate Court. The substantial questions of law raised by the appellants are baseless and not connected with the findings given by the First Appellate Court. Said questions are about findings of facts which cannot be examined by this Court in a Second Appeal under Section 100 of CPC. In view of the foregoing discussion, this Court sees no reason to entertain the Second Appeal and the same is liable to be dismissed. 22. In the result, the Second Appeal is dismissed at the stage of admission. In view of the foregoing discussion, this Court sees no reason to entertain the Second Appeal and the same is liable to be dismissed. 22. In the result, the Second Appeal is dismissed at the stage of admission. Miscellaneous applications pending, if any, shall stand closed.There shall be no order as to costs.