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2025 DIGILAW 314 (TS)

Bijjala Eshwar Rao v. Bodlapati Satyanarayana

2025-04-11

B.VIJAYSEN REDDY

body2025
ORDER : (B. VIJAYSEN REDDY, J.) This civil revision petition is filed by the petitioner aggrieved by the order dated 10.02.2025 in C.M.A. No.20 of 2023 passed by the learned II Additional District Judge, Khammam (for short ‘appellate court’) affirming the order dated 01.08.2023 in I.A. No.2 of 2023 in O.S. No.759 of 2023 passed by the learned IV Additional Junior Civil Judge-cum-Special Judicial Magistrate of First Class, Mobile Court, Khammam (for short ‘trial Court’). 2. The petitioner is the plaintiff and the respondent is the defendant in the suit in O.S. No.759 of 2023 and for the sake of convenience, the parties herein are referred to as arrayed in the suit. 3. The plaintiff instituted suit in O.S. No.759 of 2023 on the file of the trial Court for grant of perpetual injunction restraining the defendant and his henchmen from interfering with his peaceful possession and enjoyment of the land admeasuring Ac.1-34 guntas in and out of Survey No.185/A and the land admeasuring Ac.1-33 guntas in and out of Survey No.185/AA, total admeasuring Acs.3-27 guntas, situated at Nerada Revenue Village, Chinthakani Mandal, Khammam District (for short ‘suit property’). It was pleaded by the plaintiff that he had inherited the suit property along with other lands from his late father long back under family partition amongst his brothers and since then, he had been in possession and enjoyment of the suit property. The plaintiff had been raising maize and cotton crop by drawing water from the borewell situated in the suit property with electricity service connection bearing USC No.38339931. The plaintiff had been issued pattadar pass book No.T26020070135 with Khata No.242 and he had been receiving money under the scheme of Rythu Bandu from the Government of Telangana. 4. It is stated that the defendant is doing finance business. The brother of the plaintiff by name Mr. Bijjala Janardhan allegedly borrowed amounts from the defendant and towards security for repayment of the said amounts, Mr. Bijjala Janardhan executed an agreement of sale-cum-general power of attorney in favour of the defendant bearing document Nos.641 of 2011 and 642 of 2011 dated 10.03.2011 in respect of the lands admeasuring Acs.4-00 guntas in Survey No.171, Ac.1-33 guntas in Survey No.185/E, Ac.1-30 guntas in Survey No.156, Acs.2-03 guntas in Survey No.157, Ac.0-25 guntas in and out of Survey No.157, Ac.0-25 guntas in Survey No.170, situated at Nerada Revenue Village, Chinthakani Mandal, Khammam District. Subsequently, being the GPA holder of Mr. Bijjala Janardhan, the defendant got registered the above said lands in his favour under registered document bearing Nos.3201 of 2011 and 3202 of 2011 dated 21.11.2011. However, the defendant had not been in possession of the said lands. Subsequently, Mr. Bijjala Janardhan died and his sons are residing in the USA. Later, the sons of Mr. Bijjala Janardhan had been in possession and enjoyment of the lands covered under the registered sale deeds bearing documents No.3201 of 2011 and 3202 of 2011 and they have leased out the said lands to a Kauldar. While so, on 12.06.2023, the plaintiff received notice from the Mandal Surveyor, Office of Tahasildar, Chinthakani to fix up and measure the land of the defendant in Survey No.185 scheduled on 16.06.2023. Immediately, the plaintiff issued legal notice to the Mandal Surveyor through his counsel and objected such survey. The Mandal Surveyor directed the defendant to approach the plaintiff and resolve the objection. The defendant, instead of resolving the objection with the plaintiff, tried to fix up the boundaries in Survey No.185 as per his whims and fancies and tried to grab the suit property on 18.06.2023 which consists of borewell. On knowing the same, the plaintiff rushed to the suit property and resisted the defendant with the help of neighbouring farmers. 5. It is claimed that there is no borewell or well in Survey No.185 allegedly belonging to the defendant. Further, as per the registered agreement of sale-cum-general power of attorney bearing document No.641 of 2011, the western boundary of the land in Survey No.185 is shown as the land of the plaintiff. The neighbouring farmers admonished the defendant and warned him not to interfere with the possession of the plaintiff over the suit property. It is submitted again on 01.07.2023, the defendant came with JCB and tried to disturb the boundaries of the suit property. Aggrieved thereby, the plaintiff lodged a complaint with the Station House Officer, Chinthakani Police Station but no action has been taken. That some persons claiming to be the agents of the defendant and along with the defendant tried to enter into the suit property on 18.06.2023 and 01.07.2023 and with malafide intention and with ulterior motives, tried to grab the suit property but the plaintiff resisted their attempts. In such circumstances, the suit was filed. 6. That some persons claiming to be the agents of the defendant and along with the defendant tried to enter into the suit property on 18.06.2023 and 01.07.2023 and with malafide intention and with ulterior motives, tried to grab the suit property but the plaintiff resisted their attempts. In such circumstances, the suit was filed. 6. The plaintiff filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the C.P.C. vide I.A. No.2 of 2023 in O.S. No.759 of 2023 before the trial Court seeking grant of ad-interim injunction order restraining the defendant from interfering with the possession of the petitioner in respect of the suit property. 7. In the counter affidavit filed by the defendant to I.A. No.2 of 2023 in O.S. No.759 of 2023, the averments made by the plaintiff that his brother by name Mr. Bijjala Janardhan has borrowed amounts from the defendant and executed an agreement of sale-cum-general power of attorney as security in his favour; that the defendant is not in possession of the property covered under the registered documents bearing Nos.3201 of 2011 and 3202 of 2011 dated 21.11.2011; and that the said property is in possession of the children of Mr. Bijjala Janardhan who are residents of the USA are denied. It is further contended that the name of the defendant is duly recorded as owner and possessor in the revenue records and he was issued pattadar pass book No.T26020070486 with Khata No.698 in respect of the above said lands which demonstrates that he had been in possession of the above said lands and had been receiving money under the scheme of ‘Rythu Bandu’ from the Government of Telangana. Further, it is contended that the plaintiff has no authority to question the transfer of the property by Mr. Bijjala Janardhan in favour of the defendant that too more than a decade of such transfer. The borewell is within the property of the defendant and the electricity meter referred to by the plaintiff is situated in the suit property. The plaintiff, in order to gain wrongfully, clubbed both the aspects only to create confusion. It is stated that the defendant was clearing his land to start agricultural operations but the plaintiff, in order to lay claim over the title of the defendant, created cause of action without any basis. The plaintiff, in order to gain wrongfully, clubbed both the aspects only to create confusion. It is stated that the defendant was clearing his land to start agricultural operations but the plaintiff, in order to lay claim over the title of the defendant, created cause of action without any basis. There is no cause of action to file the suit and the plaintiff has approached this Court with unclean hands. 8. The trial Court dismissed the application in I.A. No.2 by noting that the plaintiff claims to be the owner of the suit property which is not disputed by the defendant. The trial Court, by referring to the documents (Ex.P-1 to P-9) relied on by the plaintiff, held that as per Ex.P-5 to P-8, it is clear that the defendant purchased the land in Survey No.156, 157, 170, 171 and 185/E from Mr. Bijjala Janardhan. The defendant is not disputing the possession of the plaintiff over the suit property. As per Ex.P-3, the Tahasildar intended to conduct survey of the land in Survey No.185 which is part of his official duties and there is no clear and specific averment that there is interference by the defendant with the possession of the plaintiff in respect of the suit property and the plaintiff himself admitted that the defendant purchased the land in Survey No.185/E from Mr. Bijjala Janardhan through western boundary which belongs to the plaintiff. The trial Court further recorded that the documents (Ex.P-1 to P-9) do not reflect that the suit property contains borewell and the plaintiff has the absolute right over the said borewell. The photographs filed at Ex.P-9 are not sufficient to establish that the defendant has interfered with the possession of the plaintiff in respect of the suit property. Further, the trial Court, by placing reliance on the judgment of a Division Bench of this Court in M/s Shanta Sriram Constructions Pvt. Ltd. Rep. by its MD v. State of Telangana {C.M.A. No.535 of 2021}, held that the Memorandum of deposit of title deed (Ex.R-1) relied upon by the defendant would be considered during the trial by noting that the plaintiff failed to establish a prima facie case and failed to prove his possession over the suit property. As such, the trial Court by order dated 01.08.2023 dismissed the application in I.A. No.2 of 2023 in O.S. No.759 of 2023. 9. As such, the trial Court by order dated 01.08.2023 dismissed the application in I.A. No.2 of 2023 in O.S. No.759 of 2023. 9. The plaintiff filed C.M.A. No.20 of 2023 before the appellate Court challenging the dismissal order dated 01.08.2023 passed by the trial Court in I.A. No.2 of 2023 in O.S. No.759 of 2023 and order dated 10.02.2025 was passed by the appellate Court wherein it was held that mere apprehension of the plaintiff is that the borewell in the suit property may be affected while conducting the survey. The plaintiff failed to show how the survey would interfere with his rights. The defendant has legal right to conduct survey to ascertain his boundaries provided it is done through competent authorities. There is no material to show that the defendant is interfering with the possession of the plaintiff over the suit property. The claim of the plaintiff that there is interference by the defendant with the borewell in his land is speculative and he has not established any imminent harm. The balance of convenience does not lie in favour of the plaintiff as granting of injunction would prevent the defendant from exercising his legal rights to ascertain his boundaries. 10. Learned counsel for the plaintiff submitted that the trial Court and the appellate Court grossly held that in dismissing the application in I.A. No.2 of 2023 despite holding that there is no dispute that the plaintiff is the owner of the suit property and the defendant admitted the ownership of the plaintiff in respect of the suit property. The injunction sought by the plaintiff was not to prevent the officials from conducting survey of the land, it was only to restrain the defendant from interfering with the possession of the plaintiff over the suit property. The plaintiff did not seek for a restraint order against survey officials. The plaintiff was issued pattadar pass book and had been receiving money under the scheme of ‘Rythu Bandu’ and the existence of the borewell with electricity connection is not disputed by the defendant. It was pleaded that there is interference by the defendant with the possession of the plaintiff in respect of the suit property. Thus, the cause of action arose from the filing of the suit and hence, the application in I.A. No.2 of 2023 ought not to have been dismissed. 11. It was pleaded that there is interference by the defendant with the possession of the plaintiff in respect of the suit property. Thus, the cause of action arose from the filing of the suit and hence, the application in I.A. No.2 of 2023 ought not to have been dismissed. 11. Per contra, learned counsel for the defendant submitted that the defendant is not disputing the title of the petitioner over the suit property. The plaintiff admitted in the suit pleadings that he does not have any interest over the land purchased by the defendant from Mr. Bijjala Janardhan and for creating cause of action, the suit was filed, and the trial Court has rightly dismissed the application in I.A. No.2 of 2023. 12. Heard learned counsel for the plaintiff and learned counsel for the defendant, and perused the material on record. 13. The plaintiff clearly asserted in the suit pleadings at paragraph No.6, that he received notice dated 12.06.2023 from the Mandal Surveyor for conducting survey of the land of the defendant in Survey No.185 scheduled on 16.06.2023. The plaintiff objected for conducting of survey by issuing legal notice to the Mandal Surveyor through his counsel; pursuant thereto, the Mandal Surveyor directed the defendant to approach the plaintiff and resolve the objection; the defendant, instead of resolving the objection with the plaintiff, tried to fix up the boundaries in Survey No.185 as per his whims and fancies and tried to grab the suit property on 18.06.2023 which consists of borewell; it was further pleaded that on 01.07.2023, the defendant came with JCB and tried to disturb the boundaries of the suit property and aggrieved thereby, the plaintiff lodged a complaint with the Station House Officer, Chinthakani Police Station but no action has been taken. That some persons claiming to be the agents of the defendant and along with the defendant tried to enter into the suit property on 18.06.2023 and 01.07.2023 and with ulterior motives and malafide intention, tried to grab the suit property but the plaintiff resisted their attempts. In view of the same, the findings recorded by the trial Court and the appellate Court that there is no cause of action for filing suit by the plaintiff is erroneous and unsustainable. 14. In view of the same, the findings recorded by the trial Court and the appellate Court that there is no cause of action for filing suit by the plaintiff is erroneous and unsustainable. 14. Both the trial Court and the appellate Court recorded that the title and possession of the plaintiff over the suit property is not denied by the defendant. Further, at paragraph No.8 of the written statement and paragraph No.9 of the counter to I.A. No.2 of 2023, the defendant asserted that the borewell is very much within his property and the electricity meter referred to by the plaintiff is at his well but the plaintiff, in order to gain wrongfully, clubbed both the aspects only to create confusion. 15. On perusal of the pleadings of the defendant, there is no denial that the plaintiff is using the borewell with service connection bearing USC No.38339931. Thus, when the ownership and possession of the plaintiff over the suit property and the usage of borewell by the plaintiff is not disputed and more so, the defendant has not commenced any agricultural operations in the land allegedly purchased by him, the findings recorded by the trial Court and the appellate Court that the plaintiff has not made out a prima facie case of interference and did not prove the existence of the borewell in his property is erroneous. The trial Court and the appellate Court failed to consider that the plaintiff did not ask for any relief against the survey officials. Even if injunction is granted, the trial Court and the appellate Court could have reserved the right of the defendant to get his land surveyed. There is no document filed by the defendant to show that the land has been surveyed and the boundaries have been fixed. In such circumstances, the plaintiff is entitled for grant of temporary injunction. 16. In view of the above, this civil revision petition is allowed. Consequently, the order dated 10.02.2025 in C.M.A. No.20 of 2023 passed by the appellate court affirming the order dated 01.08.2023 in I.A. No.2 of 2023 in O.S. No.759 of 2023 passed by the trial Court is set aside. Consequently, there shall be temporary injunction restraining the defendant from interfering with the possession of the plaintiff in respect of the suit property pending disposal of the suit. Consequently, there shall be temporary injunction restraining the defendant from interfering with the possession of the plaintiff in respect of the suit property pending disposal of the suit. This order, however, shall not preclude the defendant from getting his land surveyed and thereafter seek for appropriate orders before the trial Court in accordance with law. There shall be no order as to costs. As a sequel thereto, miscellaneous applications, if any, pending in the civil revision petition stand closed.