Or.39 rule 1&2 CPC-Whether the petitioner has made out prima facie case and balance of convenience in his favour and against the respondents? -
The material in the nature of revenue records produced by the petitioner did make out his case as to possession and enjoyment and as a matter of right, on a prima facie consideration. Therefore, in the given circumstances of the case, failure of the learned trial Judge and the learned 1st appellate Judge to address the issues in this case on the material on record in proper perspective, did affect the process of evaluation and such improper appreciation of material requires interference of this Court in its supervisory jurisdiction to set the things right and in the interests of justice.
The petitioner strongly relied on
Ex.A2, an extract of adangal
for fasli 1426 relatable to the year 2016-17
Ex.A3 is that extract of 1B
register, the entries of which are again relied on by the petitioner.
The
contents of Ex.A2 adangal reflect that during the above fasli, the entire
extent of the suit land was recorded in the name of the petitioner as the
pattadar and as the person in enjoyment of the suit land. Nature of
possession of this land is described in Ex.A3, by inheritance.
These
contents fit in with the case set up by the petitioner as to his possession
and enjoyment of the suit land during the above period and on account of
acquiring this land from his father being the only son. Ex.A3 reflects the
same situation with similar entries. Thus, Ex.A2 and Ex.A3 completely
support the case of the petitioner.
Ex.A4 is pattadar passbook said to have been issued to the
petitioner by revenue authorities.
The contents of this passbook should
reflect as is found in 1-B register.
However, the learned trial Judge choose
to reject Ex.A4 on the premise that the signature appearing on the
photograph pasted at page No.1 of this document of Mandal Revenue
Officer is differing from the signature of Mandal Revenue Officer who
subscribed his signature in the same page at the relevant column. Ex.A2
was also rejected by the learned trial judge on the ground that it pertains
to the year 2016 and did not reflect the situation as on the date of filing the suit, since the suit was instituted in the year 2018.
The learned
appellate Judge in a way also concurred with the views of the learned trial
Judge, in this context.
On behalf of the respondents,
Ex.B8 a copy of adangal for fasli
1419 was relied on in the trial Court. It was not an authenticated copy
obtained from proper source viz., from the office of the concerned
Tahsildar or as an authenticated extract from Mee Seva facility. It was
issued by the Village Revenue Officer concerned of Pedda Harivanam
village. The reason for failing to obtain an extract similar to Ex.A2 is not
explained on behalf of the respondents. It was not explained in the trial
Court or in the appellate Court. This Ex.B8 apparently was not countersigned by either Deputy Tahsildar or Tahsildar or Appropriate Authority
competent to issue revenue extract. Its contents further reflect that an
extent of Ac.4-31 cents each was in possession of Sri Shankarappa and Sri
Nagappa during fasli 1419 and the patta stood in the name of Sri
K.Basappa. Nature of acquisition of this land as per its entries is recorded
‘under an agreement’. Both the Courts attached any amount of
importance to Ex.B8 in this context.
In the presence of Ex.A2, which bears the signs of authenticity,
it is rather ununderstandable how the trial court as well as the 1st
appellate Court placed reliance on Ex.B8, which is, as such, an
unauthenticated copy.
In this context, the averments in the written statement should
be taken into consideration. It is the version of the 5th respondent in the
written statement that the plaintiff got mutated his name in revenue
records suppressing Ex.B2-Exchange deed, taking advantage of the innocence of the respondents just before filing the suit.
A prima facie
consideration of these averments in the written statement did indicate the
fact that these revenue records in relation to the suit land stood in the
name of the petitioner. It is vouched by Ex.A2 and Ex.A3.
However, the learned trial Judge accepted such version of the
respondents and to hold that they are not educated and are not aware of
maintenance of revenue records up date. Further observation of the
learned trial Judge in his order is that after purchasing the property they
could not get the entries in revenue record updated appropriately and
which fact could not be ruled out. When the version of the 5th respondent
in the written statement and observations so recorded by the learned trial
Judge are considered, it presents an unexplainable situation for the
respondents with reference to the entries in Ex.B8 adangal.
When on their
own showing, revenue records did not reflect entries in their favour,
producing Ex.B8 of such nature, itself is bound to speak of its nature and
as the one which was obtained to suit their claim. On this ground Ex.B8
has to be rejected. For the same reasons, Ex.B5 alleged extract of 1-B register
issued by VRO concerned, stands rejected.
Ex.B4 is stated to be a Rythwari Passbook issued in favour of
the father of the 5th respondent. It is an old pattadar passbook and
of course bears an entry relating to the suit land. In the written
statement, it is clearly stated by the 5th respondent that this old Rythwari
passbook is now banned after enactment of Andhra Pradesh (Rights in
Land) and Pattadar Passbooks Act, 1971. Of course, a rider is attached in
describing this pattadar passbook stating that it is nothing but 10(1) Account/record of rights. When according to the 5th respondent, this
Ex.B4-pattadar passbook is no more in existence and a banned substance,
it is rather strange that he tried to rely on the same and the learned trial
Judge quietly accepted it, confirmed by the learned appellate Judge.
Ex.B9 is the sale agreement dated 11.02.1986, under which
according to the version of the respondents, father of the 5th respondent
Sri Shankarappa had purchased the suit land from one Sri
H.K.Parameshwara Achari. Neither there is any pleading nor any
clarification given out before the learned trial Judge or 1st appellate court
as to the relationship between Sri H.K.Parameshwara Achari and Sri
Kammara Basappa, who held this property originally, which was sold
under original of Ex.A1 to the father of the petitioner.
The description of Sri Sri H.K.Parameshwara Achari in Ex.B9 is
that he was son of Sri Kamsala Basappa. Nonetheless, to consider this
document clarification should have been brought out and the pleading set
by the respondents either in the counter filed before the trial Court or in
the written statement did not offer any clarification in this respect.
When thus being the background to consider this entire
matter,which reflected the situation on the date of filing the suit, when
the material produced by the petitioner stands more for acceptance than
the material placed by the respondents, it is rather unthinkable as to how
either the trial Court or the 1st appellate Court, had drawn conclusions
against the petitioner refusing to grant relief in his favour, as sought.
There appear no certain circumstances as to
why the land purchased almost fortnight earlier under the original of
Ex.A1 was sought to be exchanged by the father of the petitioner from Sri
Kammara Basappa from whom he had purchased this land as per Ex.B2.
Nonetheless, having regard to the nature of the suit being for bare
injunction and the stage at which this matter now is considered, it is
rather an unnecessary enquiry as to what would have transpired about 60
years ago when this exchange transaction took place. It can be relegated
to the stage of the trial.
The material in the nature of revenue records produced by the
petitioner did make out his case as to possession and enjoyment and as a
matter of right, on a prima facie consideration.
Therefore, in the given circumstances of the case, failure of the
learned trial Judge and the learned 1st appellate Judge to address the
issues in this case on the material on record in proper perspective, did
affect the process of evaluation and such improper appreciation of
material requires interference of this Court in its supervisory jurisdiction to
set the things right and in the interests of justice.
Thus, the petitioner made out prima facie case in his favour
basing on the material produced by him in comparison to the
respondents. Balance of convenience also weighs in his favour than the
respondents in the circumstances. Thus, this point is held.
POINT No.2:-
29. In view of the findings on point No.1 in as much as prima facie
case and balance of convenience stood in favour of the petitioner, in the
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CRP.No.947 of 2020
10
event of refusal to grant temporary injunction, he would suffer irreparable
loss and injury. Status of the property as claimed by the petitioner should
be maintained during trial. However, ultimate result in the suit shall be
based on the material and evidence to be produced by the parties in a
full-dressed trial. Thus, this point is held in favour of the petitioner and
against the respondents.
POINT No.3:-
30. In view of the findings on points 1 and 2,
AP HIGH COURT
| CRP/947/2020 | MULLA BELDAR KHASIM SAAB
Versus
KURRA NAGAPPA |
CIVIL REVISION PETITION No.947 of 2020
HON’BLE SRI JUSTICE M.VENKATA RAMANA
ORDER:
This Civil Revision petition filed under Article 227 of the
Constitution of India is directed against the order in CMA No.8 of 2019 on
the file of the Court of the learned II Additional District Judge, Kurnool at
Adoni dated 28.02.2020. It was inturn preferred against the order in
I.A.No.46 of 2018 in O.S.No.6 of 2018 of the Court of Principal Junior Civil
Judge, Adoni.
2. The plaintiff is the revision petitioner. He laid the suit against all
the respondents, who are the defendants, for grant of permanent
injunction restraining them from interfering with his alleged peaceful
possession and enjoyment of the plaint schedule land. This land is
described in the plaint schedule as an extent of Ac.8-63 cents in S.No.
926-K1 of Pedda Harivanam village of Kurnool District. Along with the suit,
the petitioner filed I.A.No.46 of 2018 for grant of temporary injunction
under Order-39, Rules 1 and 2 CPC against the respondents restraining
them from interfering with his peaceful possession and enjoyment of the
above land during pendency of the suit. This land shall be referred to
hereinafter as, ‘the suit land’ for convenience.
3. The case of the petitioner is that his father Sri Mulla Hussain Sab
purchased the suit land under a registered sale deed on 19.12.1957 from
Sri Kammara Basappa for valuable consideration and that after the death
of his father, being the only son he began to enjoy this land as an
absolute owner. He further claimed that the revenue authorities also
recognized his possession of this land as the owner and issued necessary
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CRP.No.947 of 2020
2
pattadar passbook as well as title deed while his name is also reflected in
all the revenue records with reference to this land as the owner and
enjoyer. He further alleged that the respondents without any manner of
right tried to interfere with his possession and enjoyment of the suit land,
that constrained him to lay the suit. As seen from the record, an
ad interim injunction was also granted in his favour.
4. The respondents resisted the claim of the petitioner through the
5
th respondent. Their main contention is that the petitioner has
suppressed material fact relating to exchange of the suit land and an
extent of Ac.12-68 cents in S.No.917 under a registered deed dated
30.12.1957, between himself and his vendor viz., Sri Kammara Basappa.
Thus, they contended that though father of the petitioner had purchased
this land as claimed by him, within a few days it was exchanged for
another land as stated above and thus Sri Kammara Basappa retained this
land.
5. The 5th respondent further contended that his father Sri Kuruva
Joharapuram Shankarappa had purchased the suit land from Sri
H.K.Parameshwara Achari, Son of Sri Kammara Basappa under an
agreement for sale on 11.02.1996 for consideration of Rs.22,450/-
(Rupees twenty two thousand four hundred and fifty) and thus Sri
Shakarappa was delivered possession of this land. Thus, it is the claim of
the respondents that through the father of the 5th respondent, this land
came into possession of the 5th respondent after his demise and who
continued to be in possession and enjoyment of this land eversince. Thus
denying that the petitioner was ever in possession and enjoyment of the
suit land and asserting that the revenue records produced by the
petitioner were manipulated just prior to filing this suit to suit his
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CRP.No.947 of 2020
3
convenience taking advantage of their innocence and being uneducated,
they claimed that the petitioner is not entitled for any equitable and
discretionary relief.
6. In the trial court, on behalf of the petitioner, Ex.A1 to Ex.A4 and
on behalf of the contesting respondents Ex.B1 to Ex.B9 were produced.
Basing on the pleadings of the parties as well as these documents, the
learned trial Judge by his order disagreed with the contention of the
petitioner, ultimately dismissing his petition for temporary injunction.
Appeal preferred against the above order was also dismissed by the
appellate Court.
7. Sri S.D.Goud, learned counsel for the petitioner, and Sri
M.Chalapathi Rao, learned counsel for the contesting respondents,
addressed arguments in this matter basing on the material.
8. Now, the following points arise for determination:
1. Whether the petitioner has made out prima facie case and
balance of convenience in his favour and against the
respondents?
2. Whether the petitioner would suffer irreparable loss and injury
in the event of refusal to grant temporary injunction in his
favour as requested?
3. To what relief?
POINT No.1:-
9. It is admitted that the father of the petitioner Sri Mulla Hussain
Sab purchased the suit land under the original of Ex.A1 on 19.12.1957, a
copy of which is Ex.B1. The fact that there was exchange of this land for
another extent of Ac.12-69 cents in S.No.917 of Pedda Harivanam Village
between Sri Mulla Hussain Saab and Sri Kammara Basappa, is evidenced
by a registered deed dated 30.12.1957 in Ex.B2. Both the transactions
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4
covered by Ex.A1 and Ex.B2 are reflected in Ex.B3-Encumbrance
Certificate.
10. It is to be noted that these two transactions took place about
60 years ago. It cannot be expected as of now that the situation that
prevailed about 60 years ago, would continue. This is the prime factor
which should be borne in mind in this case. Even though this Civil Revision
Petition is filed under Article 227 of the Constitution of India, having
regard to the peculiar nature of this case, it needs to go into the fact
situation.
11. However, Sri M.Chalapathi Rao, learned counsel for the
respondents, contends that there is no necessity for this Court to enter
into any discussion particularly to interfere with the concurrent findings
recorded by the trial Court as well as the 1st appellate Court, having
regard to the nature of this matter, since no irregularity or illegality per se
is seen. However, the manner in which both the Courts considered the
fact situation and having regard to the nature of this dispute, such
technicality loses its significance and interests of justice require to address
the fact situation prima facie.
12. In this backdrop, the parameters relating to grant of temporary
injunction in exercise of discretion should be considered. It is settled
proposition that in a matter of this nature, the burden is always on the
petitioner to establish his claim. He cannot as such rely on any weakness
or laches on the part of the respondent. In the process of evaluation of
the material, the Court should also take into consideration whether the
party seeking such discretionary relief of injunction has approached the
Court with clean hands and ex facie made out a bona fide claim.
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CRP.No.947 of 2020
5
Suppression of material facts is a circumstance of significance in this
process.
13. The question of title at this stage of considering a petition for
temporary injunction is not ordinarily addressed to. However, the party
seeking such relief has to establish prima facie case in his favour.
14. The petitioner strongly relied on Ex.A2, an extract of adangal
for fasli 1426 relatable to the year 2016-17. Ex.A3 is that extract of 1B
register, the entries of which are again relied on by the petitioner. The
contents of Ex.A2 adangal reflect that during the above fasli, the entire
extent of the suit land was recorded in the name of the petitioner as the
pattadar and as the person in enjoyment of the suit land. Nature of
possession of this land is described in Ex.A3, by inheritance. These
contents fit in with the case set up by the petitioner as to his possession
and enjoyment of the suit land during the above period and on account of
acquiring this land from his father being the only son. Ex.A3 reflects the
same situation with similar entries. Thus, Ex.A2 and Ex.A3 completely
support the case of the petitioner.
15. Ex.A4 is pattadar passbook said to have been issued to the
petitioner by revenue authorities. The contents of this passbook should
reflect as is found in 1-B register. However, the learned trial Judge choose
to reject Ex.A4 on the premise that the signature appearing on the
photograph pasted at page No.1 of this document of Mandal Revenue
Officer is differing from the signature of Mandal Revenue Officer who
subscribed his signature in the same page at the relevant column. Ex.A2
was also rejected by the learned trial judge on the ground that it pertains
to the year 2016 and did not reflect the situation as on the date of filing
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CRP.No.947 of 2020
6
the suit, since the suit was instituted in the year 2018. The learned
appellate Judge in a way also concurred with the views of the learned trial
Judge, in this context.
16. On behalf of the respondents, Ex.B8 a copy of adangal for fasli
1419 was relied on in the trial Court. It was not an authenticated copy
obtained from proper source viz., from the office of the concerned
Tahsildar or as an authenticated extract from Mee Seva facility. It was
issued by the Village Revenue Officer concerned of Pedda Harivanam
village. The reason for failing to obtain an extract similar to Ex.A2 is not
explained on behalf of the respondents. It was not explained in the trial
Court or in the appellate Court. This Ex.B8 apparently was not countersigned by either Deputy Tahsildar or Tahsildar or Appropriate Authority
competent to issue revenue extract. Its contents further reflect that an
extent of Ac.4-31 cents each was in possession of Sri Shankarappa and Sri
Nagappa during fasli 1419 and the patta stood in the name of Sri
K.Basappa. Nature of acquisition of this land as per its entries is recorded
‘under an agreement’. Both the Courts attached any amount of
importance to Ex.B8 in this context.
17. In the presence of Ex.A2, which bears the signs of authenticity,
it is rather ununderstandable how the trial court as well as the 1st
appellate Court placed reliance on Ex.B8, which is, as such, an
unauthenticated copy.
18. In this context, the averments in the written statement should
be taken into consideration. It is the version of the 5th respondent in the
written statement that the plaintiff got mutated his name in revenue
records suppressing Ex.B2-Exchange deed, taking advantage of the
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CRP.No.947 of 2020
7
innocence of the respondents just before filing the suit. A prima facie
consideration of these averments in the written statement did indicate the
fact that these revenue records in relation to the suit land stood in the
name of the petitioner. It is vouched by Ex.A2 and Ex.A3.
19. However, the learned trial Judge accepted such version of the
respondents and to hold that they are not educated and are not aware of
maintenance of revenue records up date. Further observation of the
learned trial Judge in his order is that after purchasing the property they
could not get the entries in revenue record updated appropriately and
which fact could not be ruled out. When the version of the 5th respondent
in the written statement and observations so recorded by the learned trial
Judge are considered, it presents an unexplainable situation for the
respondents with reference to the entries in Ex.B8 adangal. When on their
own showing, revenue records did not reflect entries in their favour,
producing Ex.B8 of such nature, itself is bound to speak of its nature and
as the one which was obtained to suit their claim. On this ground Ex.B8
has to be rejected.
20. For the same reasons, Ex.B5 alleged extract of 1-B register
issued by VRO concerned, stands rejected.
21. Ex.B4 is stated to be a Rythwari Passbook issued in favour of
the father of the 5th respondent. It is an old pattadar passbook and
of course bears an entry relating to the suit land. In the written
statement, it is clearly stated by the 5th respondent that this old Rythwari
passbook is now banned after enactment of Andhra Pradesh (Rights in
Land) and Pattadar Passbooks Act, 1971. Of course, a rider is attached in
describing this pattadar passbook stating that it is nothing but 10(1)
MVR,J
CRP.No.947 of 2020
8
Account/record of rights. When according to the 5th respondent, this
Ex.B4-pattadar passbook is no more in existence and a banned substance,
it is rather strange that he tried to rely on the same and the learned trial
Judge quietly accepted it, confirmed by the learned appellate Judge.
22. Ex.B9 is the sale agreement dated 11.02.1986, under which
according to the version of the respondents, father of the 5th respondent
Sri Shankarappa had purchased the suit land from one Sri
H.K.Parameshwara Achari. Neither there is any pleading nor any
clarification given out before the learned trial Judge or 1st appellate court
as to the relationship between Sri H.K.Parameshwara Achari and Sri
Kammara Basappa, who held this property originally, which was sold
under original of Ex.A1 to the father of the petitioner.
23. The description of Sri Sri H.K.Parameshwara Achari in Ex.B9 is
that he was son of Sri Kamsala Basappa. Nonetheless, to consider this
document clarification should have been brought out and the pleading set
by the respondents either in the counter filed before the trial Court or in
the written statement did not offer any clarification in this respect.
24. When thus being the background to consider this entire
matter,which reflected the situation on the date of filing the suit, when
the material produced by the petitioner stands more for acceptance than
the material placed by the respondents, it is rather unthinkable as to how
either the trial Court or the 1st appellate Court, had drawn conclusions
against the petitioner refusing to grant relief in his favour, as sought.
25. In the course of hearing Sri S.D.Gowd, learned counsel for the
petitioner, contended that the land, which was subject matter of exchange
under the original of Ex.B2 in S.No.917, as per revenue records, belonged
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CRP.No.947 of 2020
9
to Sri Virupakshaswamy Temple of Hampi. However, there is no material
to support such contention. There appear no certain circumstances as to
why the land purchased almost fortnight earlier under the original of
Ex.A1 was sought to be exchanged by the father of the petitioner from Sri
Kammara Basappa from whom he had purchased this land as per Ex.B2.
Nonetheless, having regard to the nature of the suit being for bare
injunction and the stage at which this matter now is considered, it is
rather an unnecessary enquiry as to what would have transpired about 60
years ago when this exchange transaction took place. It can be relegated
to the stage of the trial.
26. The material in the nature of revenue records produced by the
petitioner did make out his case as to possession and enjoyment and as a
matter of right, on a prima facie consideration.
27. Therefore, in the given circumstances of the case, failure of the
learned trial Judge and the learned 1st appellate Judge to address the
issues in this case on the material on record in proper perspective, did
affect the process of evaluation and such improper appreciation of
material requires interference of this Court in its supervisory jurisdiction to
set the things right and in the interests of justice.
28. Thus, the petitioner made out prima facie case in his favour
basing on the material produced by him in comparison to the
respondents. Balance of convenience also weighs in his favour than the
respondents in the circumstances. Thus, this point is held.
POINT No.2:-
29. In view of the findings on point No.1 in as much as prima facie
case and balance of convenience stood in favour of the petitioner, in the
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CRP.No.947 of 2020
10
event of refusal to grant temporary injunction, he would suffer irreparable
loss and injury. Status of the property as claimed by the petitioner should
be maintained during trial. However, ultimate result in the suit shall be
based on the material and evidence to be produced by the parties in a
full-dressed trial. Thus, this point is held in favour of the petitioner and
against the respondents.
POINT No.3:-
30. In view of the findings on points 1 and 2, the result is that the
petitioner is entitled for temporary injunction as requested against the
respondents. Consequently, the orders of the trial Court as well as the 1st
appellate Court should be interfered with, setting aside the same.
31. In the result, the Civil Revision Petition is allowed setting aside
the orders of the learned II Additional District Judge, Kurnool, at Adoni in
CMA No.8 of 2019 dated 28.02.2020. Consequently, I.A.No.46 of 2018 in
O.S.No. 6 of 2018 of the Court of the learned Principal Junior Civil Judge,
Adoni stands allowed and temporary injunction is granted in favour of the
petitioner (plaintiff) restraining the respondents (defendants) from
interfering with his peaceful possession and enjoyment of the suit land till
disposal of the suit. In the circumstances, there shall be no order as to
costs
Pending Miscellaneous Petitions, if any, shall stand closed. Interim
Orders, if any, granted earlier shall stand vacated.
________________________
JUSTICE M.VENKATA RAMANA
Dt:27.08.2020
RR
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CRP.No.947 of 2020
11
HON’BLE SRI JUSTICE M.VENKATA RAMANA
CRP No.947 of 2020
Dt:27.08.2020
RR
