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2025 DIGILAW 201 (TS)

Khursheed Khatoon v. Pabba Aruna

2025-04-01

K.LAKSHMAN

body2025
ORDER : K. LAKSHMAN, J. Heard Mr. Gummala Bhasker Reddy, learned counsel for the petitioners and Mr. N. Hari Prasad, learned counsel appearing for respondent Nos.1 and 2. 2. The present Civil Revision Petition is filed challenging the order dated 21.10.2024 passed in I.A.No.726 of 2023 in CMA No.4 of 2023 passed by the Judge, Family Court – cum-IV Additional District and Sessions Judge, at Karimnagar. FACTS:- 3. The petitioners herein filed a suit in O.S.No.36 of 2021 against the respondents 1 and 2 herein/defendants 1 and 2 to declare the plaintiffs as owners of the suit schedule property and also for perpetual injunction. They also sought to declare the documents bearing No.1481 of 2020 and 150 of 2021 both dated 24.11.2020 as null and void and to direct the defendant Nos.3 and 4, enter the name of the plaintiffs as owners and possessors of the suit schedule property in revenue record and issue pattadar passbooks by deleting the name of any person entered in the revenue records over the suit schedule property. 4. Along with the said suit, the plaintiffs have also filed as Interlocutory Application vide I.A.No.105 of 2021 under Order 39 Rules 1 and 2 of CPC to grant temporary injunction restraining the defendants 1 and 2 from raising any construction and not to change the physical features of the suit schedule property till disposal of the main suit. Vide order dated 06.12.2022, learned trial Court allowed the said application granting temporary injunction in favour of the petitioners/plaintiffs restraining the defendants 1 and 2 from raising any constructions, not to change physical features of the petition schedule property till disposal of the main suit. 5. Feeling aggrieved by the said order, respondent Nos.1 and 2/defendant Nos.1 and 2 preferred an appeal vide CMA No.4 of 2023. During pendency of the said appeal, respondent Nos.1 and 2 herein filed interlocutory application vide I.A.No.726 of 2023 in CMA No.4 of 2023 under Order 26 rule 9 of CPC to appoint an Advocate Commissioner to note down the physical features and boundaries of the suit schedule property on the following grounds:- i. They have purchased the suit schedule property from original owner i.e. Ajit Singh takur s/o. Kishan Singh under registered sale deed bearing document No.148 and 150 of 2020 both dated 24.11.2020 within the boundaries specified in the registered sale deeds. ii. ii. By showing wrong boundaries to the suit land, the plaintiffs are claiming possession and ownership over the suit land. Thus, there is dispute with regard to the boundaries of the suit land. iii. To establish that the suit land is in their physical possession, it is necessary to appoint an Advocate Commissioner to note down the physical features of the suit schedule land and to fix up boundaries. iv. Plaintiffs contended that the defendants 1 and 2 are in possession of the subject property and therefore, they sought to restrain defendants 1 and 2 from raising any construction and change physical features of the suit schedule property. v. Though respondents 1 and 2 herein/defendants 1 and 2 filed counter opposing the said interlocutory application, vide order dated 06.12.2022, the trial Court allowed the said interlocutory application granting temporary injunction in favour of the plaintiffs restraining the defendant Nos.1 and 2 from raising any construction, not to change the physical features of the petition schedule property till disposal of the main suit. 6. The petitioners herein/plaintiffs filed counter in I.A.No. 726 of 2023 in C.M.A.No.4 of 2023 opposing the said application contending as follows:- i. The application under Order 26 Rule 9 filed by the defendants 1 and 2 at appellate stage, is not maintainable. ii. Respondent Nos.1 and 2/defendant Nos.1 and 2 had no prima facie case, balance of convenience in their favour. iii. They are never in possession of the suit schedule property at any point of time. iv. When they filed the said suit for declaration of title and perpetual injunction, defendants 1 and 2 have to establish their lawful possession and enjoyment over the suit schedule property as on the date of filing of the suit. v. They are trying to interfere with the legal right of the plaintiffs. Defendants 1 and 2 have to prove their positive case by adducing independent evidence. vi. They have no right to seek appointment of an Advocate Commissioner to note down the physical features of the suit schedule property and fix up boundaries of the suit schedule property. vii. Appointment of an Advocate-Commissioner would amount to collection of evidence which is impermissible. 7. Vide order dated 21.10.2024, learned Appellate Court allowed the said application holding that appointment of an Advocate Commissioner cannot be called as an attempt to gather evidence. vii. Appointment of an Advocate-Commissioner would amount to collection of evidence which is impermissible. 7. Vide order dated 21.10.2024, learned Appellate Court allowed the said application holding that appointment of an Advocate Commissioner cannot be called as an attempt to gather evidence. Considering the submissions made on both sides, trial Court appointed an Advocate Commissioner. Challenging the said order, the petitioners filed the present revision. 8. As discussed supra, the aforesaid suit is filed for declaration of title, perpetual injunction and also to declare the registered sale deeds bearing document Nos. document No.148 and 150 of 2020 both dated 24.11.2020, as null and void. In paragraph No.3 of the plaint, the plaintiffs explained about their title and possession. In paragraph No.5 of the plaint, they have asserted that through reliable source, they came to know that some persons are falsely claiming title over the suit schedule property, get their names entered into revenue records without any notice and without any document. The names of the defendants 1 and 2 were entered into revenue records illegally. They are claiming right over the subject property basing on created, false and fabricated registered sale deeds bearing document Nos.148 and 150 of 2020 both dated 24.11.2020. 9. In paragraph No.6 of the plaint, the plaintiffs have asserted that merely because the defendant Nos.1 and 2, who are not the owners, could manage to get their names entered in column No.16 of pahani, when the land is kept fallow, or when it is a vacant land, it cannot be merely on the basis of that entry without establishing or proving possession over acts of possession thereon, be held that defendants 1 and 2 are in possession of such vacant land of which defendant Nos.1 and 2 are not the owners. The alleged possession of the defendants 1 and 2 through illegal revenue entries cannot create any right over the suit schedule property and their possession is illegal. The names of defendants 1 and 2 are mutated in the revenue records illegally and by virtue of the same, they are interfering with the possession of the plaintiffs and denying title of the plaintiffs. It is well settled maxim of law that ‘a person cannot transfer better title to the other which he does not have’. The plaintiffs are the owners of the suit schedule property. 10. It is well settled maxim of law that ‘a person cannot transfer better title to the other which he does not have’. The plaintiffs are the owners of the suit schedule property. 10. In paragraph No.7 of the plaint, they have contended that suit schedule property is open place till today and the principle is that possession follows title only. 11. In paragraph No.8 of the plaint, they have contended that the defendant Nos.1 and 2 are neither owners nor possessors of the suit schedule property. They never purchased the suit schedule property either from the plaintiffs or their ancestors or any other persons. 12. In paragraph No.10 of the plaint, the plaintiffs have asserted that cause of action arose at Bommakal Village, Karimnagar rural Mandal and District, without any legal rights over the suit schedule property on 10.07.2021, the defendants 1 and 2 are trying to dispose (may be wrongly mentioned as dispose instead of dispossess) of from the suit land and denied title of the plaintiffs over the suit schedule property. 13. The defendants 1 and 2 filed written statement contending that the plaintiffs are not the owners of the suit schedule property and they are the bona fide purchasers of the suit schedule property. Their names were mutated in the revenue records by following due procedure laid down under law. Defendant Nos.1 and 2, having purchased the said land from Mr. Ajith Singh Takur, the original owner, through registered sale deeds bearing document Nos.148 and 150 of 2020 dated 24.11.2020, they became absolute owners and possessors of the suit schedule property. They have obtained pattadar passbooks and title deeds. The plaintiffs are not the owners and not in possession of the suit schedule property. Therefore, they are not entitled for declaration of title over the suit schedule property. 14. In paragraph No.7 of the written statement, the defendants 1 and 2 categorically stated that admittedly, the plaintiffs are admitting the possession of the defendants 1 and 2 over the suit schedule property as on the date of filing of the suit and therefore, they cannot seek for perpetual injunction. They have to seek for recovery of possession. Therefore, the suit filed by them for perpetual injunction is not maintainable. 15. They have to seek for recovery of possession. Therefore, the suit filed by them for perpetual injunction is not maintainable. 15. It is further contended that the learned trial Court vide order dated 06.12.2022 in I.A.No.105 of 2021 in O.S.No.36 of 2021, should not have granted temporary injunction to the plaintiffs as they have admitted that the defendants 1 and 2 are in possession of the suit schedule property, there is every possibility of changing physical features and also possibility of raising constructions over the suit schedule property which will create multiplicity of litigation. 16. However, to avoid the above consequences and in view of the prima facie case in favour of the plaintiffs, trial Court granted interim injunction in favour of the plaintiffs restraining the defendants 1 and 2 from raising any constructions over the suit schedule property and not to change physical features of the suit schedule property till disposal of the main suit. 17. Respondents 1 and 2 filed the aforesaid appeal vide CMA No.4 of 2023 challenging the order dated 06.12.2022 contending that during the course of enquiry, the plaintiffs did not adduce any documentary evidence on their behalf and any documents marked on behalf of the defendants 1 and 2. The plaintiffs admitted the possession of the defendant Nos.1 and 2 over the suit schedule property as on the date of filing of the suit. Plaintiff shown wrong boundaries to the suit schedule property. Without considering the same, the trial Court vide order dated 06.12.2022 granted temporary injunction restraining the defendants 1 and 2 from raising any construction, not to change physical features of the suit schedule property. 18. The aforesaid facts would reveal that there are many mistakes in the pleadings of the petitioners herein/plaintiffs in the plaint. They have not mentioned sale deed numbers correctly. They have mentioned sale deed Nos.1481 of 2020 and 150 of 2021, both dated 24.11.2020. 19. Whereas, defendant Nos.1 and 2 are contending that they purchased suit schedule property under registered sale deeds bearing Nos.148 and 150 of 2020 both dated 24.11.2020. 20. As discussed supra, the pleadings of plaintiffs in the plaint are self-contradictory. They have mentioned sale deed Nos.1481 of 2020 and 150 of 2021, both dated 24.11.2020. 19. Whereas, defendant Nos.1 and 2 are contending that they purchased suit schedule property under registered sale deeds bearing Nos.148 and 150 of 2020 both dated 24.11.2020. 20. As discussed supra, the pleadings of plaintiffs in the plaint are self-contradictory. In one paragraph, they have stated that defendants 1 and 2 are not in possession of the suit schedule property, in the other paragraph, they have stated that the defendants 1 and 2 are claiming right over the subject property and are in possession of the suit schedule property basing on wrong entries and fictitious documents. Thus, there is no consistency with regard to pleadings of plaintiffs in the plaint. Therefore, the counsel for the plaintiffs has to obtain necessary instructions from the plaintiffs on factual aspects and thereafter, draft plaint by taking utmost care and caution. Parties come to counsel with a hope that they will get justice. The same is lacking in the present case. There are contradictory pleadings with regard to the ownership as well as possession of the defendants. Basing on the pleadings of the parties, learned trial Court in paragraph No.7 of the order dated 06.12.2021, i.e. held that plaintiffs admitted possession of the defendants over the suit schedule property. They are only seeking relief to restrain defendants 1 and 2 from changing physical features of the suit schedule property and from raising any construction. On consideration of the said pleadings, trial Court allowed I.A.No.105 of 2021 and restrained defendants 1 and 2 from raising any construction and changing physical features of the suit schedule property. In the appendix of the order dated 06.12.2022, appendix of evidence shows that neither the plaintiffs nor the defendants examined any witnesses nor marked any documents on their behalf. 21. Perusal of the plaint would reveal that the plaintiffs have filed 11 documents. This Court and Apex Court time and again categorically held that trial Court shall necessarily mark the documents, consider the same while deciding interlocutory applications. Without marking the said documents either with consent or by following the procedure laid down under law, relying on the documents filed by the parties and deciding Interlocutory Application is in violation of the principle laid down by this Court in catena of decisions. 22. Without marking the said documents either with consent or by following the procedure laid down under law, relying on the documents filed by the parties and deciding Interlocutory Application is in violation of the principle laid down by this Court in catena of decisions. 22. Vide judgment dated 21.07.2017 in CMA Nos.527, 564 and 607 of 2017, Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, held that deciding Interlocutory Applications without marking documents is illegal. Relevant portion of the said judgment is extracted below:- In this context, we are reminded of a Division Bench judgment of this Court in T.Bhoopal Reddy vs. K.R.Laxmi Bai [ 1998(1) ALT 292 (D.B.)], wherein it was observed that in order to come to a prima facie conclusion, both the trial Court and the Appellate Court should necessarily be able to locate the documents and know its contents to agree with either of the contentions; that nowhere it is envisaged that the case of the contesting parties can only be decided on the affidavits and not on any other material and that in the absence of any specific rule so far as marking of documents at the interlocutory stage is concerned, the Courts would not be justified in not giving any marking at all to such of the documents on which both sides would rely. Regrettably, despite this authoritative pronouncement of the Division Bench, some Courts have been ignoring the same and not marking documents. 23. Placing reliance on Division Bench judgment in T.Bhoopal Reddy vs. Smt. K.R.Laxmi Bai (died) , [ 2007 (5) ALD 622 ] , in Chernam Chinna Balmasiah vs. State Teachers Union, Telangana , [CRP No.1234 of 2020, dated 28.07.2021] , this Court held as under:- This Court, having given conscious thought, had observed that there is some ambiguity arising on account of the observations of the Division Bench in T. Bhopal Reddy v. K.R. Lakshmi Bai [ 1998 (1) ALD 770 (DB), wherein it is not categorically held that it is mandatory for the documents to be marked. On further examination, it was found that there is yet another judgment of the Division Bench of this Court in C.M.A.Nos. On further examination, it was found that there is yet another judgment of the Division Bench of this Court in C.M.A.Nos. 527, 564 and 607 of 2017, dated 21.07.2017, which, while holding that the Rule regarding marking of documents in terms of the Civil Rules of Practice be adhered to, directed the Registry to issue a Circular to the subordinate courts to mark the documents filed by the parties to the Interlocutory Applications before deciding such Applications. In this context, Rules 51, 60 and 115 of the Civil Rules of Practice may be noted. While Rule 115 deals with marking of documents admitted in evidence, which can be done only at the time of trial, Rule 51 read with Rule 60 caters to the need of the marking of documents for the purpose of disposal of the Interlocutory Applications. Rules 51 and 60, which are more relevant for the purpose of dealing with the issue in the present Revision, are extracted as under: "51. Documents referred to in affidavit:- Document referred to by affidavit shall be referred to as exhibits and shall be marked in the same manner as exhibits admitted by the court and shall bear the certificate in Form No.16 which shall be signed by the officer before whom the affidavit is taken. 60. Proof of facts by affidavit:- Any fact required to be proved upon an interlocutory proceeding shall unless otherwise provided by these rules, or ordered by the court, be provided by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment." This Court reiterated the said principle vide order dated 23.09.2023 in C.R.P.No.1977 of 2023. 24. In the present case, trial Court allowed the said I.A.No.105 of 2021, without marking the documents. Defendants 1 and 2 have specifically taken plea in the appeal to the said effect in paragraph No.5. The defendants 1 and 2 have filed I.A.No.726 of 2021 in CMA No.4 of 2023 contending that the plaintiffs have wrongly mentioned the boundaries of the suit schedule property and claiming possession and ownership over the suit schedule property. 25. Defendants 1 and 2 have specifically taken plea in the appeal to the said effect in paragraph No.5. The defendants 1 and 2 have filed I.A.No.726 of 2021 in CMA No.4 of 2023 contending that the plaintiffs have wrongly mentioned the boundaries of the suit schedule property and claiming possession and ownership over the suit schedule property. 25. The defendants 1 and 2 did not mention the said fact in the written statement filed by them in the suit. 26. In the counter filed by the plaintiffs in I.A.No.726 of 2023 in CMA No.4 of 2023, in paragraph No.8 plaintiffs specifically contended that the defendants are never in possession of the suit schedule property at any point of time. The plaintiffs are in possession of the suit schedule property and the defendants Nos. 1 and 2 are trying to interfere with their legal rights. 27. In paragraph No.6 of the counter filed by respondents 1 and 2 in the present revision, they have contended that despite the plaintiffs admitting that the defendants 1 and 2 are in possession of the subject property, trial Court restrained the defendants from changing physical features of the suit schedule property and raising construction over the suit schedule property. 28. However, the present revision is filed against the order dated 21.10.2024 in I.A.No.726 of 2021 in C.M.A.No.4 of 2023 passed by the Judge, Family Court at Karimnagar, appointing an Advocate-Commissioner to note down the physical features and boundaries of the suit schedule property. As discussed supra, the defendants 1 and 2 filed the said application seeking appointment of an Advocate-Commissioner under Order 26 Rule 9 of CPC. There is no dispute that CMA No.4 of 2023 is continuation to the proceedings in I.A.No.105 of 2021 in O.S.No.36 of 2021. They can file the said I.A.No.726 of 2023 under Order 26 Rule 9 of CPC seeking appointment of an Advocate Commissioner but they have to lay foundation explaining reasons properly. 29. There is no dispute that CMA No.4 of 2023 is continuation to the proceedings in I.A.No.105 of 2021 in O.S.No.36 of 2021. They can file the said I.A.No.726 of 2023 under Order 26 Rule 9 of CPC seeking appointment of an Advocate Commissioner but they have to lay foundation explaining reasons properly. 29. Order 26 Rule 9 CPC deals with Commissions to make local investigations that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court, provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. 30. As discussed supra, in the present case, there is self-contradiction with regard to pleadings of the plaintiffs. Respondents 1 and 2 are consistently pleading that they are the absolute owners and possessors of the suit schedule property. 31. As discussed supra, the plaintiffs have filed 11 documents along with the suit and defendants Nos.1 and 2 might have filed some document in the I.A.No.105 of 2021 in O.S.No.36 of 2021. Without marking the said documents, learned trial Court granted temporary injunction in favour of the plaintiffs vide order dated 06.12.2022. The same is contrary to the procedure laid down under law and also principle laid down in the aforesaid judgments. 32. Respondents 1 and 2 filed the aforesaid application seeking appointment of an Advocate-Commissioner on the ground that the plaintiffs are showing wrong boundaries to the suit schedule property and claiming possession and ownership of the suit schedule property. Therefore, on the said ground, they cannot file application in C.M.A.No.4 of 2023 seeking appointment of Advocate-Commissioner to note down the physical features of the suit schedule property and boundaries of the same. Defendant Nos.1 and 2 have to file the said application before the trial Court and it is for the trial Court to consider the same and decide the said application basing on the record available. Defendant Nos.1 and 2 have to file the said application before the trial Court and it is for the trial Court to consider the same and decide the said application basing on the record available. Without considering the said aspects, vide order dated 21.10.2024, the appellate Court allowed the I.A.No.726 of 2023 in CMA No.4 of 2023 appointing an Advocate Commissioner to note down the physical features of the suit schedule property and boundaries of the same. The said order is not based on sound reasons and it is not well founded. It is contrary to the record and pleadings of the parties. Thus, the appellate Court committed error and it is jurisdictional error. Therefore, the said order dated 21.10.2023 in I.A.No.726 of 2023 in CMA No.4 of 2023 is liable to be set aside. 33. In the light of the aforesaid discussion, this Civil Revision Petition is allowed. The impugned order dated 21.10.2024 passed in I.A.No.726 of 2023 in CMA No.4 of 2023 by the Judge, Family Court – cum-IV Additional District and Sessions Judge, at Karimnagar, is set aside. The learned Judge, shall decide CMA No.4 of 2023 filed by Respondent Nos.1 and 2 herein/Defendants 1 and 2 strictly in accordance with law basing on the material available on record and also considering the aforesaid aspects. As a sequel, miscellaneous petitions, if any, pending in the revision shall stand closed.