REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5817 OF 2012
Agnigundala Venkata Ranga
Rao ….Appellant(s)
VERSUS
Indukuru Ramachandra Reddy
(Dead) by LRs. & Ors. .…Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal by certificate is filed by the plaintiff against the
final judgment and order dated 28.10.2011 of the High Court of
Judicature, Andhra Pradesh at Hyderabad in Appeal Suit No.4141 of 2003
whereby the High Court allowed the appeal preferred by the
defendants(respondents herein) and reversed the final judgment and
decree dated 22.09.2003 of the Additional Senior Civil Judge,
Narasaraopet in Original Suit No. 98 of 1998.
2) In order to appreciate the issue involved in the appeal, which
lies in a narrow compass, it is necessary to state few relevant facts
taken from the appeal paper books.
3) The appellant is the plaintiff whereas the respondents are the
defendants in the civil suit out of which this appeal arises.
4) The subject matter of this appeal is an agriculture land
measuring Ac.13.38 cents in Survey No. 436 and Ac. 9.38 cents in
Survey No. 826 (total land-22 acres 76 cents) situated in -Agnigundala
Village of Ipur Mandal, District Guntur Andhra Pradesh (hereinafter
referred to as the "suit land”).
5) The appellant owned several acres of agriculture lands, which
also included the suit land. The Andhra Pradesh Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973 (for short, “the Act”) was
enacted on 01.01.1973. It came into force on 01.01.1975. The
appellant being a "person" as defined under Section 3(o) of the Act
and was holding the land in excess of the limits prescribed under the
Act filed a declaration in respect of his holding before the Tribunal
as required under Section 7 of the Act. During the pendency of his
case before the Tribunal, the appellant sold the suit land vide sale
deed dated 16.07.1975 to the respondents. The sale deed, inter alia,
recited that the appellant has also delivered possession of the suit
land to the respondents. Respondent No. 1 then mortgaged the suit land
along with his other lands to the State Bank of India and obtained
loan wherein the appellant had stood as the guarantor.
6) The Tribunal, on 21.08.1976, passed an order in CC
No.2311/VKD/75 under Section 7 of the Act and held inter alia that the
appellant was holding the land in excess of the limits prescribed in
the Act. It was further held that so far as the transfer of the suit
land made by the appellant in favour of the respondents vide sale deed
dated 16.07.1975 is concerned, the same was void because it was
effected by the appellant after the Act had come into force which was
prohibited under Section 7(2) read with Section 17 of the Act. The
appellant was, therefore, directed to surrender the excess land held
by him in favour of the State as provided in the Act.
7) In 1995-1998, i.e., almost after 2 decades from the date of the
order of the Tribunal (21.08.1976), another litigation began between
the appellant and the respondents in relation to the suit land. This
was under the provisions of the Andhra Pradesh Rights in Land and
Pattadar Pass Books Act, 1971 (for short, "the Act of 1971 ") wherein
the issue was whose name - the appellant or the respondents be entered
in the Pass Book in relation to the suit land as Pattadar. This
litigation ended in appellant's favour by the orders of the
revisionary Court.
8) On 29.10.1998, i.e., almost after 22 years from the date of the
Tribunal’s order (21.08.1976) the appellant filed a civil suit
(O.S.No. 98/1998) against the respondents before the Additional Senior
Civil Judge, Narsaraopet out of which this appeal arises. The suit was
for permanent injunction in relation to the suit land against the
respondents. It was essentially founded on the allegations that the
appellant is the owner of the suit land to the exclusion of all
persons including the respondents, who have no right to interfere in
the appellant's possession over the suit land. It was averred that the
appellant has been and continues to remain in possession of the suit
land and since the respondents are threatening the appellant to
dispossess him from the suit land, hence he was constrained to file
the civil suit seeking permanent injunction against the respondents
restraining them from interfering in appellant’s peaceful possession
over the suit land.
9) The respondents filed written statement. They denied the
appellant's claim and set up a title in themselves over the suit land.
It was contended that the respondents purchased the suit land from
the appellant vide sale deed dated 16.07.1975 and since then they have
been in its possession. It was contended that the respondents on
purchase of the suit land obtained the loan from S.B.I and mortgaged
it with the Bank by way of security for the loan taken. It was also
contended that the appellant is estopped from raising any contention
once he sold the suit land to the respondents and stake any claim over
the suit land.
10) The Trial Court, on the basis of pleadings, framed two issues
viz., (1) whether the plaintiff (appellant) is in lawful possession of
the suit land; and (2) whether the plaintiff (appellant) is entitled
for injunction as prayed for?
11) The Trial Court vide judgment/decree dated 22.09.2003 decreed
the plaintiff's suit. It was held that the sale made by the appellant
to the respondent of the suit land vide sale deed dated 16.07.1975 (Ex-
B-1) is null and void being in contravention of Section 17 of the Act.
It was held that such sale, even if made, did not convey any right,
title and interest in respondents’ favour. It was further held that
the plaintiff is in lawful possession of the suit land as he was able
to prove his actual possession on the basis of evidence adduced by him
and hence was entitled to seek permanent injunction against the
respondents restraining the respondents not to dispossess the
appellant from the suit land.
12) Felt aggrieved, the defendants (respondents) filed first appeal
before the High Court. By impugned judgment and order, the Single
Judge of the High Court allowed the appeal and while setting aside the
judgment/decree of the Trial Court dismissed the suit. The plaintiff
(respondent before the High Court) then orally prayed to the Single
Judge to grant leave to file appeal to this Court (Supreme Court) as
provided under Article 134-A(b) of the Constitution. The Single
Judge granted "leave" to the plaintiff as prayed. This is how this
appeal is brought before this Court on the strength of the certificate
granted by the High Court.
13) Heard Mr. V.V.S.Rao, learned senior counsel for the appellant
and Mr. B. Adinarayana Rao, learned senior counsel for the
respondents. We also perused the written submissions filed by the
parties.
14) Learned senior counsel for the appellant (plaintiff), while
assailing the legality and correctness of the impugned judgment,
contended that the High Court (Single Judge) erred in reversing the
judgment/decree passed by the Trial Court. The submission of the
learned counsel, in substance, was that the judgment of the Trial
Court, which had rightly decreed the appellant’s suit, should be
restored. It is this submission, which learned counsel elaborated by
pointing out various provisions of the two Acts and the exhibits and
findings of the two courts below.
15) In reply, learned senior counsel for the respondents supported
the impugned judgment and contended that no case is made out to
interfere in the impugned order and hence appeal deserves to be
dismissed.
16) Before we consider the merits of the case, it is apposite to
deal with one question which though arises, was not argued by pointing
out the relevant provisions governing the question.
17) As mentioned above, this appeal is filed on a certificate
granted by the High Court (Single Judge) on the oral application made
by the appellant immediately after the pronouncement of the impugned
judgment as provided under Article 134-A of the Constitution. The
order granting certificate is a part of the impugned judgment in its
concluding Para which reads thus:
“Learned counsel for the respondent seeks leave of this Court to
prefer an appeal against this judgment.
Accordingly, leave is granted.”
18) What is the true interpretation of Articles 133 and 134-A of the
Constitution and who can grant the certificate of fitness to appeal to
the Supreme Court remains no more res integra. It is settled by the
decision of this Court in State Bank of India & Anr. Vs. S.B.I.
Employees’ Union & Anr., 1987 (4) SCC 370.
19) The facts of this case and the one involved in the SBI case
(supra) are somewhat similar wherein Their Lordships examined the
issue as to whether the certificate granted by the High Court (Single
Judge) satisfied the requirements contained in Articles 133 and 134-A.
Justice Venkataramiah (as His Lordship then was and later became CJI)
speaking for the Bench held thus:
2. The certificate contemplated under Article 134-A of the
Constitution can only be a certificate which is referred to in
clause (1) of Article 132 or in clause (1) of Article 133 or in
sub-clause (c) of clause (1) of Article 134 of the Constitution.
This is quite obvious from the language of Article 134-A of the
Constitution. This case does not fall either under Article
132(1) or under sub-clause (c) of Article 134(1) as it neither
involves a substantial question of law as to the interpretation
of the Constitution nor it is a criminal proceeding. It can only
fall, if at all, under Article 133(1) of the Constitution.
Article 133 of the Constitution reads thus:
“133. (1) An appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a
High Court in the territory of India if the High Court
certifies under Article 134-A—
(a) that the case involves a substantial question of law of
general importance; and
(b) that in the opinion of the High Court the said question
needs to be decided by the Supreme Court.
(2) Notwithstanding anything in Article 132, any party
appealing to the Supreme Court under clause (1) may urge as
one of the grounds in such appeal that a substantial
question of law as to the interpretation of this
Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal
shall, unless Parliament by law otherwise provides, lie to
the Supreme Court from the judgment, decree or final order
of one judge of a High Court.”
3. Clause (3) of Article 133 says that notwithstanding anything
in that article no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment,
decree or final order of one judge of the High Court. Before the
introduction of Article 134-A of the Constitution by the Forty-
fourth Amendment of the Constitution there was no express
provision in Articles 132, 133 and 134 of the Constitution
regarding the time and manner in which an application for a
certificate under any of those articles could be made before the
High Court. There was also a doubt as to the power of the High
Court to issue a certificate suo motu under any of those
articles. Article 134-A was enacted to make good the said
deficiencies. Article 134-A does not constitute an independent
provision under which a certificate can be issued. It is
ancillary to Article 132(1), Article 133(1) and Article
134(1)(c) of the Constitution. That is the reason for the use of
words “if the High Court certifies under Article 134-A” in
Article 132(1) and Article 133(1) and for the use of the words
certifies under Article 134-A in Article 134(1)(c). The High
Court can issue a certificate only when it is satisfied that the
conditions in Article 132 or Article 133 or Article 134 of the
Constitution as the case may be are satisfied. In the instant
case such a certificate could not have been issued by reason of
clause (3) of Article 133 of the Constitution by the learned
Single Judge.
4. The fact that in a similar case a certificate had been issued
by a Division Bench of the High Court consisting of two judges
in a case decided by the Division Bench did not empower the
Single Judge to issue the certificate under Article 133(1) of
the Constitution in a case decided by him. The restriction
placed by clause (3) of Article 133 of the Constitution could
not be got over by relying upon the order of the Division Bench.
5. We, therefore, revoke the certificate. This petition of
appeal may, however, be treated as a special leave petition
under Article 136 of the Constitution and posted for preliminary
hearing.”
20) In our considered opinion, the law laid down in S.B.I case
(supra) would squarely apply to the case at hand because in the
instant case also, the impugned judgment and the certificate of
fitness to file an appeal was passed by the Single Judge of the High
Court.
21) As held in S.B.I. case, such certificate/leave could not have
been issued/granted by the Single Judge by reason of clause (3) of
Article 133 of the Constitution. In other words, the Single Judge of
the High Court had no jurisdiction to grant certificate in the light
of restrictions contained in clause (3) of Article 133 of the
Constitution.
22) We, therefore, revoke the certificate granted by the Single
Judge of the High Court. However, this appeal is treated as a special
leave petition under Article 136 of the Constitution as was done by
this Court in S.B.I case (supra). Leave is accordingly granted.
23) Coming now to the merits of the case, the short question, which
arises for consideration in this appeal and which was also debated
before the two Courts below, is who was in possession of the suit land-
the appellant or the respondents on the date of filing of the suit
and whether the appellant (plaintiff) was entitled to claim permanent
injunction against the respondents(defendants) in relation to the suit
land.
24) The Trial Court held the appellant (plaintiff) to be in
possession of the suit land and accordingly granted permanent
injunction restraining the respondents (defendants) from interfering
in the appellant's possession over the suit land whereas the High
Court in an appeal filed by the respondents reversed the finding of
the Trial Court and dismissed the suit giving rise to filing of this
appeal by the plaintiff on certificate.
25) One cannot dispute the legal proposition being well settled that
the question as to who is in possession of the suit property is
essentially a question of fact. Such question is required to be
decided on appreciation of evidence adduced by the parties in support
of their respective contentions. Once the Trial Court renders a
finding either way and the same is then appreciated by the first
appellate Court in exercise of its appellate jurisdiction, such
finding is usually held binding on the second appellate Court and this
Court.
26) It is only when such finding of fact is found to be against the
pleading or evidence or any provision of law or when it is found to be
so perverse or/and arbitrary to the extent that no judicial person of
an average capacity can ever record, the same would not be binding on
the higher Courts and may in appropriate case call for interference.
27) Coming to the facts of the case, we are of the considered
opinion, that the appellant (plaintiff) simply abused the process of
law in filing the suit for permanent injunction in relation to the
suit land against the respondents. The suit, in our opinion, was
misconceived and deserved dismissal on facts and in law on the
grounds, which are indeed apparent on the face of the record of the
case as mentioned below.
28) Firstly, the legal effect of the coming into force of the Act
was that on and after 01.01.1975 (notified date), the appellant being
the holder of agriculture lands had no right to sell or/and transfer
the suit land whether for consideration or otherwise. In other words,
the sale/transfer of agriculture land by the holder of the land was
prohibited on and after -01.01.1975 by virtue of the provisions of the
Act. In this view of the matter, the sale made by the appellant vide
sale deed dated 16.07.1975 in favour of the respondents in relation to
the suit land was null and void.
29) Secondly, the Tribunal having rightly held in the order dated
21.08.1976 that the sale deed dated 16.07.1975 executed by the
appellant in favour of the respondents was null and void because it
was made in contravention of the provisions of the Act and secondly,
having held that the appellant's total holding was in excess of the
ceiling limits prescribed in the Act, the suit land was not available
to the appellant for its disposal. Indeed its disposal could be done
only in accordance with the provisions of the Act with the
intervention of the State.
30) That apart, one of the legal effects that ensued consequent upon
passing of the order by the Tribunal dated 21.08.1976 was that the
character of the suit land had changed. It was then in the nature of
"surrendered" or "deemed surrendered" land in favour of the State as
prescribed under Sections 10 and 11 and other related provisions of
the Act.
31) Thirdly, the litigation, which had ensued during 1995-98 between
the appellant and the respondents under "The Act of 1971" in relation
to the entries of their names in the revenue record (Pass Book)
pertaining to the suit land was neither of any consequence and nor was
of any significance and nor had any impact on the present litigation.
It was for the reason that Section 28 of the Act that gives overriding
effect to the provisions of the Act on all those laws, which are
inconsistent with the provisions of the Act, had applied to this case.
The Act of 1971 is one such law and, therefore, any order passed under
the Act of 1971 in relation to the suit land was of no avail to any
party and nor it could have been made basis for determining the issue
of possession of any party over the suit land while considering the
grant of injunction.
32) In other words, no benefit of the order(s), even if passed,
under the Act 1971 could be taken by the parties either way against
each other in these proceedings by virtue of Section 28 of the Act.
Moreover, in our considered view, no proceedings under the Act 1971
could either be initiated or be pursued by the appellant/respondents
in relation to the suit land after the Act had come into force
(01.01.1975). Even the proceedings under the Act of 1971 were subject
to the final outcome of the proceedings under the Act.
33) Fourthly, the appellant did not come to the Civil Court with
clean hands inasmuch as he suppressed the material fact that he had
already sold the suit land much prior to filing of the Suit to the
respondents and, therefore, had no subsisting interest in the suit
land. Indeed filing of the civil suit by the appellant (29.10.1998)
almost after 22 years from the date of passing of the order by the
Tribunal (21.08.1976) was totally uncalled for. In fact, it was a
collusive suit filed to frustrate the rights of the State which had
accrued in State’s favour in the suit land by virtue of the order
dated 21.08.1976 read with the provisions of the Act. Such frivolous
suit, in our considered opinion, deserved rejection at its threshold.
34) Fifthly, the Trial Court and the High Court having held on the
strength of Tribunal's finding recorded in the order 21.08.1976 which
has attained finality that the appellant was not the owner of the suit
land, the respondents too did not acquire any right, title and
interest in the suit land through sale deed dated 16.07.1975. It being
a settled principle of law that a person can transfer only those
rights, which he has in the property and cannot transfer any rights,
which he does not have would apply to this case.
35) In other words, when the appellant was prohibited to transfer
any of his rights, title and interest in the suit land by virtue of
the provisions of the Act to any person - a fortiori, the respondents
too could not acquire any rights, title and interest in the suit land
through sale deed dated 16.07.1975 from the appellant and he too was,
therefore, in the same position like that of the appellant.
36) Seventhly, once the appellant's rights in the suit land stood
determined by the Tribunal vide its order dated 21.08.1976 under the
Act, there did not arise any occasion to hold the appellant to be in
“lawful possession" of the suit land on the date of filing of the suit
(29.10.98) for considering grant of injunction over the suit land
against the respondents.
37) It is a settled principle of law that in order to claim
prohibitory (temporary or permanent) injunction, it is necessary for
the plaintiff to prima facie prove apart from establishing other two
ingredients, namely, irreparable loss and injury that his possession
over the suit land is "legal". In this case, it was not so and nor it
could be for the simple reason that as far back on 21.08.1976, the
Tribunal had already declared the land held by the plaintiff to be in
excess of the ceiling limits prescribed under the Act. In these
circumstances, the plaintiff was neither holding the land nor could he
be held to be in its lawful possession so as to enable him to exercise
any ownership rights against any other private party over the suit
land. The appellant had then very limited rights left to exercise
under the Act in relation to the suit land and such rights were
available to him only against the State. Such is not the case here.
38) Lastly, this being a simple suit for grant of permanent
injunction between the two private parties in relation to the land
which was subject matter of the State Ceiling Laws, was liable to be
dismissed on the short ground apart from many others as detailed above
that any order that may be passed by the Civil Court would adversely
affect and interfere in the rights of the State under the Act, which
had not been impleaded as party defendant.
39) Learned counsel for the appellant took us to the various
documents including orders of the Revenue authorities to show that it
was the plaintiff who was in possession of the suit land on the date
of filing of the suit as was rightly held by the Trial Court and,
therefore, this Court should restore the finding of the Trial Court.
40) We are afraid we cannot re-appreciate the documentary or/and
oral evidence again in our appellate jurisdiction. Firstly, it is not
permissible for want of any case made out to that effect and secondly,
it is not considered necessary in the light of what we have held
above.
41) Learned counsel for the appellant placed reliance on several
decisions in support of his submission such as Nagubai Ammal & Ors.
vs. B. Shama Rao & Ors., AIR 1956 SC 593, Bhagwati Prasad vs. Shri
Chandramaul, AIR 1966 SC 735, Pinninti Kishtamma & Ors. vs. Duvvada
Parasuram Chowdary & Ors. 2010 (2) SCC 452, State of Tamil Nadu vs.
Ramalinga Samigal Madam, 1985 (4) SCC 10, Annamreddi Bodayya & Anr.
vs. Lokanarapu Ramaswamy(Dead) by L.Rs. 1984 Suppl SCC 391, Anathula
Sudhakar vs. P. Buchi Reddy(D) by L.Rs., 2008 (4) SCC 594, Rajendra
Singh & Ors. vs. State of U.P. & Ors., (1998) 7 SCC 654 and Karnail
Singh vs. State of Haryana & Anr., (1995) Suppl(3) SCC 376. We have
perused these decisions and find no quarrel with the general
proposition of law laid down therein. In our view, all the decisions
cited are distinguishable on facts and hence have no application to
the facts of this case.
42) It is pertinent to mention that in order to limit filing of such
frivolous suits by the private parties in relation to agricultural
land which are subjected to the State ceiling laws, the State of M.P.
amended the Code of Civil Procedure by Act No. 29 of 1984 w.e.f.
14.8.84. By this State amendment, Rule 3-B was added in Order 1 Rule
10 making it obligatory upon the plaintiff to implead the State as
party defendant along with private party defendant in every such suit.
The amendment further provides that so long as the plaintiff does not
implead the State as party defendant in the suit, the Court will not
proceed with the trial of the Suit. The object behind introducing such
amendment was to give notice to the State of filing of such suit by
the holder of the agricultural land which would enable the State to
defend their rights, which had accrued in State's favour in the land
under the Act.
43) In the absence of any such rule in operation in the State of
A.P., the State remained unnoticed of the suit proceedings, which
continued in Courts for last more than two decades.
44) In view of foregoing discussion, we uphold the conclusion
arrived at by the High Court on our reasoning given supra. As a
consequence, the appeal fails and is accordingly dismissed.
45) Before parting, we consider it apposite to state that the
appellant and the respondents made frantic efforts to somehow retain
the suit land to them and keep the land away from the clutches of The
Act. With this aim in view, they got the suit land involved in this
litigation since 1976. All this was done without notice to the State
Authorities.
46) We, therefore, direct the Tribunal to take up the case of the
appellant on its Board and pass appropriate consequential order, if
necessary under the Act keeping in view the order dated 21.08.1976 of
the Tribunal passed in CC No. 2311/VKD/75 and take all remedial steps
as are necessary in relation to the land held by the appellant
including the suit land.
47) Registry is directed to send a copy of this order to the
concerned Tribunal.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[NAVIN SINHA]
New Delhi;
April 13, 2017
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5817 OF 2012
Agnigundala Venkata Ranga
Rao ….Appellant(s)
VERSUS
Indukuru Ramachandra Reddy
(Dead) by LRs. & Ors. .…Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal by certificate is filed by the plaintiff against the
final judgment and order dated 28.10.2011 of the High Court of
Judicature, Andhra Pradesh at Hyderabad in Appeal Suit No.4141 of 2003
whereby the High Court allowed the appeal preferred by the
defendants(respondents herein) and reversed the final judgment and
decree dated 22.09.2003 of the Additional Senior Civil Judge,
Narasaraopet in Original Suit No. 98 of 1998.
2) In order to appreciate the issue involved in the appeal, which
lies in a narrow compass, it is necessary to state few relevant facts
taken from the appeal paper books.
3) The appellant is the plaintiff whereas the respondents are the
defendants in the civil suit out of which this appeal arises.
4) The subject matter of this appeal is an agriculture land
measuring Ac.13.38 cents in Survey No. 436 and Ac. 9.38 cents in
Survey No. 826 (total land-22 acres 76 cents) situated in -Agnigundala
Village of Ipur Mandal, District Guntur Andhra Pradesh (hereinafter
referred to as the "suit land”).
5) The appellant owned several acres of agriculture lands, which
also included the suit land. The Andhra Pradesh Land Reforms (Ceiling
on Agricultural Holdings) Act, 1973 (for short, “the Act”) was
enacted on 01.01.1973. It came into force on 01.01.1975. The
appellant being a "person" as defined under Section 3(o) of the Act
and was holding the land in excess of the limits prescribed under the
Act filed a declaration in respect of his holding before the Tribunal
as required under Section 7 of the Act. During the pendency of his
case before the Tribunal, the appellant sold the suit land vide sale
deed dated 16.07.1975 to the respondents. The sale deed, inter alia,
recited that the appellant has also delivered possession of the suit
land to the respondents. Respondent No. 1 then mortgaged the suit land
along with his other lands to the State Bank of India and obtained
loan wherein the appellant had stood as the guarantor.
6) The Tribunal, on 21.08.1976, passed an order in CC
No.2311/VKD/75 under Section 7 of the Act and held inter alia that the
appellant was holding the land in excess of the limits prescribed in
the Act. It was further held that so far as the transfer of the suit
land made by the appellant in favour of the respondents vide sale deed
dated 16.07.1975 is concerned, the same was void because it was
effected by the appellant after the Act had come into force which was
prohibited under Section 7(2) read with Section 17 of the Act. The
appellant was, therefore, directed to surrender the excess land held
by him in favour of the State as provided in the Act.
7) In 1995-1998, i.e., almost after 2 decades from the date of the
order of the Tribunal (21.08.1976), another litigation began between
the appellant and the respondents in relation to the suit land. This
was under the provisions of the Andhra Pradesh Rights in Land and
Pattadar Pass Books Act, 1971 (for short, "the Act of 1971 ") wherein
the issue was whose name - the appellant or the respondents be entered
in the Pass Book in relation to the suit land as Pattadar. This
litigation ended in appellant's favour by the orders of the
revisionary Court.
8) On 29.10.1998, i.e., almost after 22 years from the date of the
Tribunal’s order (21.08.1976) the appellant filed a civil suit
(O.S.No. 98/1998) against the respondents before the Additional Senior
Civil Judge, Narsaraopet out of which this appeal arises. The suit was
for permanent injunction in relation to the suit land against the
respondents. It was essentially founded on the allegations that the
appellant is the owner of the suit land to the exclusion of all
persons including the respondents, who have no right to interfere in
the appellant's possession over the suit land. It was averred that the
appellant has been and continues to remain in possession of the suit
land and since the respondents are threatening the appellant to
dispossess him from the suit land, hence he was constrained to file
the civil suit seeking permanent injunction against the respondents
restraining them from interfering in appellant’s peaceful possession
over the suit land.
9) The respondents filed written statement. They denied the
appellant's claim and set up a title in themselves over the suit land.
It was contended that the respondents purchased the suit land from
the appellant vide sale deed dated 16.07.1975 and since then they have
been in its possession. It was contended that the respondents on
purchase of the suit land obtained the loan from S.B.I and mortgaged
it with the Bank by way of security for the loan taken. It was also
contended that the appellant is estopped from raising any contention
once he sold the suit land to the respondents and stake any claim over
the suit land.
10) The Trial Court, on the basis of pleadings, framed two issues
viz., (1) whether the plaintiff (appellant) is in lawful possession of
the suit land; and (2) whether the plaintiff (appellant) is entitled
for injunction as prayed for?
11) The Trial Court vide judgment/decree dated 22.09.2003 decreed
the plaintiff's suit. It was held that the sale made by the appellant
to the respondent of the suit land vide sale deed dated 16.07.1975 (Ex-
B-1) is null and void being in contravention of Section 17 of the Act.
It was held that such sale, even if made, did not convey any right,
title and interest in respondents’ favour. It was further held that
the plaintiff is in lawful possession of the suit land as he was able
to prove his actual possession on the basis of evidence adduced by him
and hence was entitled to seek permanent injunction against the
respondents restraining the respondents not to dispossess the
appellant from the suit land.
12) Felt aggrieved, the defendants (respondents) filed first appeal
before the High Court. By impugned judgment and order, the Single
Judge of the High Court allowed the appeal and while setting aside the
judgment/decree of the Trial Court dismissed the suit. The plaintiff
(respondent before the High Court) then orally prayed to the Single
Judge to grant leave to file appeal to this Court (Supreme Court) as
provided under Article 134-A(b) of the Constitution. The Single
Judge granted "leave" to the plaintiff as prayed. This is how this
appeal is brought before this Court on the strength of the certificate
granted by the High Court.
13) Heard Mr. V.V.S.Rao, learned senior counsel for the appellant
and Mr. B. Adinarayana Rao, learned senior counsel for the
respondents. We also perused the written submissions filed by the
parties.
14) Learned senior counsel for the appellant (plaintiff), while
assailing the legality and correctness of the impugned judgment,
contended that the High Court (Single Judge) erred in reversing the
judgment/decree passed by the Trial Court. The submission of the
learned counsel, in substance, was that the judgment of the Trial
Court, which had rightly decreed the appellant’s suit, should be
restored. It is this submission, which learned counsel elaborated by
pointing out various provisions of the two Acts and the exhibits and
findings of the two courts below.
15) In reply, learned senior counsel for the respondents supported
the impugned judgment and contended that no case is made out to
interfere in the impugned order and hence appeal deserves to be
dismissed.
16) Before we consider the merits of the case, it is apposite to
deal with one question which though arises, was not argued by pointing
out the relevant provisions governing the question.
17) As mentioned above, this appeal is filed on a certificate
granted by the High Court (Single Judge) on the oral application made
by the appellant immediately after the pronouncement of the impugned
judgment as provided under Article 134-A of the Constitution. The
order granting certificate is a part of the impugned judgment in its
concluding Para which reads thus:
“Learned counsel for the respondent seeks leave of this Court to
prefer an appeal against this judgment.
Accordingly, leave is granted.”
18) What is the true interpretation of Articles 133 and 134-A of the
Constitution and who can grant the certificate of fitness to appeal to
the Supreme Court remains no more res integra. It is settled by the
decision of this Court in State Bank of India & Anr. Vs. S.B.I.
Employees’ Union & Anr., 1987 (4) SCC 370.
19) The facts of this case and the one involved in the SBI case
(supra) are somewhat similar wherein Their Lordships examined the
issue as to whether the certificate granted by the High Court (Single
Judge) satisfied the requirements contained in Articles 133 and 134-A.
Justice Venkataramiah (as His Lordship then was and later became CJI)
speaking for the Bench held thus:
2. The certificate contemplated under Article 134-A of the
Constitution can only be a certificate which is referred to in
clause (1) of Article 132 or in clause (1) of Article 133 or in
sub-clause (c) of clause (1) of Article 134 of the Constitution.
This is quite obvious from the language of Article 134-A of the
Constitution. This case does not fall either under Article
132(1) or under sub-clause (c) of Article 134(1) as it neither
involves a substantial question of law as to the interpretation
of the Constitution nor it is a criminal proceeding. It can only
fall, if at all, under Article 133(1) of the Constitution.
Article 133 of the Constitution reads thus:
“133. (1) An appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a
High Court in the territory of India if the High Court
certifies under Article 134-A—
(a) that the case involves a substantial question of law of
general importance; and
(b) that in the opinion of the High Court the said question
needs to be decided by the Supreme Court.
(2) Notwithstanding anything in Article 132, any party
appealing to the Supreme Court under clause (1) may urge as
one of the grounds in such appeal that a substantial
question of law as to the interpretation of this
Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal
shall, unless Parliament by law otherwise provides, lie to
the Supreme Court from the judgment, decree or final order
of one judge of a High Court.”
3. Clause (3) of Article 133 says that notwithstanding anything
in that article no appeal shall, unless Parliament by law
otherwise provides, lie to the Supreme Court from the judgment,
decree or final order of one judge of the High Court. Before the
introduction of Article 134-A of the Constitution by the Forty-
fourth Amendment of the Constitution there was no express
provision in Articles 132, 133 and 134 of the Constitution
regarding the time and manner in which an application for a
certificate under any of those articles could be made before the
High Court. There was also a doubt as to the power of the High
Court to issue a certificate suo motu under any of those
articles. Article 134-A was enacted to make good the said
deficiencies. Article 134-A does not constitute an independent
provision under which a certificate can be issued. It is
ancillary to Article 132(1), Article 133(1) and Article
134(1)(c) of the Constitution. That is the reason for the use of
words “if the High Court certifies under Article 134-A” in
Article 132(1) and Article 133(1) and for the use of the words
certifies under Article 134-A in Article 134(1)(c). The High
Court can issue a certificate only when it is satisfied that the
conditions in Article 132 or Article 133 or Article 134 of the
Constitution as the case may be are satisfied. In the instant
case such a certificate could not have been issued by reason of
clause (3) of Article 133 of the Constitution by the learned
Single Judge.
4. The fact that in a similar case a certificate had been issued
by a Division Bench of the High Court consisting of two judges
in a case decided by the Division Bench did not empower the
Single Judge to issue the certificate under Article 133(1) of
the Constitution in a case decided by him. The restriction
placed by clause (3) of Article 133 of the Constitution could
not be got over by relying upon the order of the Division Bench.
5. We, therefore, revoke the certificate. This petition of
appeal may, however, be treated as a special leave petition
under Article 136 of the Constitution and posted for preliminary
hearing.”
20) In our considered opinion, the law laid down in S.B.I case
(supra) would squarely apply to the case at hand because in the
instant case also, the impugned judgment and the certificate of
fitness to file an appeal was passed by the Single Judge of the High
Court.
21) As held in S.B.I. case, such certificate/leave could not have
been issued/granted by the Single Judge by reason of clause (3) of
Article 133 of the Constitution. In other words, the Single Judge of
the High Court had no jurisdiction to grant certificate in the light
of restrictions contained in clause (3) of Article 133 of the
Constitution.
22) We, therefore, revoke the certificate granted by the Single
Judge of the High Court. However, this appeal is treated as a special
leave petition under Article 136 of the Constitution as was done by
this Court in S.B.I case (supra). Leave is accordingly granted.
23) Coming now to the merits of the case, the short question, which
arises for consideration in this appeal and which was also debated
before the two Courts below, is who was in possession of the suit land-
the appellant or the respondents on the date of filing of the suit
and whether the appellant (plaintiff) was entitled to claim permanent
injunction against the respondents(defendants) in relation to the suit
land.
24) The Trial Court held the appellant (plaintiff) to be in
possession of the suit land and accordingly granted permanent
injunction restraining the respondents (defendants) from interfering
in the appellant's possession over the suit land whereas the High
Court in an appeal filed by the respondents reversed the finding of
the Trial Court and dismissed the suit giving rise to filing of this
appeal by the plaintiff on certificate.
25) One cannot dispute the legal proposition being well settled that
the question as to who is in possession of the suit property is
essentially a question of fact. Such question is required to be
decided on appreciation of evidence adduced by the parties in support
of their respective contentions. Once the Trial Court renders a
finding either way and the same is then appreciated by the first
appellate Court in exercise of its appellate jurisdiction, such
finding is usually held binding on the second appellate Court and this
Court.
26) It is only when such finding of fact is found to be against the
pleading or evidence or any provision of law or when it is found to be
so perverse or/and arbitrary to the extent that no judicial person of
an average capacity can ever record, the same would not be binding on
the higher Courts and may in appropriate case call for interference.
27) Coming to the facts of the case, we are of the considered
opinion, that the appellant (plaintiff) simply abused the process of
law in filing the suit for permanent injunction in relation to the
suit land against the respondents. The suit, in our opinion, was
misconceived and deserved dismissal on facts and in law on the
grounds, which are indeed apparent on the face of the record of the
case as mentioned below.
28) Firstly, the legal effect of the coming into force of the Act
was that on and after 01.01.1975 (notified date), the appellant being
the holder of agriculture lands had no right to sell or/and transfer
the suit land whether for consideration or otherwise. In other words,
the sale/transfer of agriculture land by the holder of the land was
prohibited on and after -01.01.1975 by virtue of the provisions of the
Act. In this view of the matter, the sale made by the appellant vide
sale deed dated 16.07.1975 in favour of the respondents in relation to
the suit land was null and void.
29) Secondly, the Tribunal having rightly held in the order dated
21.08.1976 that the sale deed dated 16.07.1975 executed by the
appellant in favour of the respondents was null and void because it
was made in contravention of the provisions of the Act and secondly,
having held that the appellant's total holding was in excess of the
ceiling limits prescribed in the Act, the suit land was not available
to the appellant for its disposal. Indeed its disposal could be done
only in accordance with the provisions of the Act with the
intervention of the State.
30) That apart, one of the legal effects that ensued consequent upon
passing of the order by the Tribunal dated 21.08.1976 was that the
character of the suit land had changed. It was then in the nature of
"surrendered" or "deemed surrendered" land in favour of the State as
prescribed under Sections 10 and 11 and other related provisions of
the Act.
31) Thirdly, the litigation, which had ensued during 1995-98 between
the appellant and the respondents under "The Act of 1971" in relation
to the entries of their names in the revenue record (Pass Book)
pertaining to the suit land was neither of any consequence and nor was
of any significance and nor had any impact on the present litigation.
It was for the reason that Section 28 of the Act that gives overriding
effect to the provisions of the Act on all those laws, which are
inconsistent with the provisions of the Act, had applied to this case.
The Act of 1971 is one such law and, therefore, any order passed under
the Act of 1971 in relation to the suit land was of no avail to any
party and nor it could have been made basis for determining the issue
of possession of any party over the suit land while considering the
grant of injunction.
32) In other words, no benefit of the order(s), even if passed,
under the Act 1971 could be taken by the parties either way against
each other in these proceedings by virtue of Section 28 of the Act.
Moreover, in our considered view, no proceedings under the Act 1971
could either be initiated or be pursued by the appellant/respondents
in relation to the suit land after the Act had come into force
(01.01.1975). Even the proceedings under the Act of 1971 were subject
to the final outcome of the proceedings under the Act.
33) Fourthly, the appellant did not come to the Civil Court with
clean hands inasmuch as he suppressed the material fact that he had
already sold the suit land much prior to filing of the Suit to the
respondents and, therefore, had no subsisting interest in the suit
land. Indeed filing of the civil suit by the appellant (29.10.1998)
almost after 22 years from the date of passing of the order by the
Tribunal (21.08.1976) was totally uncalled for. In fact, it was a
collusive suit filed to frustrate the rights of the State which had
accrued in State’s favour in the suit land by virtue of the order
dated 21.08.1976 read with the provisions of the Act. Such frivolous
suit, in our considered opinion, deserved rejection at its threshold.
34) Fifthly, the Trial Court and the High Court having held on the
strength of Tribunal's finding recorded in the order 21.08.1976 which
has attained finality that the appellant was not the owner of the suit
land, the respondents too did not acquire any right, title and
interest in the suit land through sale deed dated 16.07.1975. It being
a settled principle of law that a person can transfer only those
rights, which he has in the property and cannot transfer any rights,
which he does not have would apply to this case.
35) In other words, when the appellant was prohibited to transfer
any of his rights, title and interest in the suit land by virtue of
the provisions of the Act to any person - a fortiori, the respondents
too could not acquire any rights, title and interest in the suit land
through sale deed dated 16.07.1975 from the appellant and he too was,
therefore, in the same position like that of the appellant.
36) Seventhly, once the appellant's rights in the suit land stood
determined by the Tribunal vide its order dated 21.08.1976 under the
Act, there did not arise any occasion to hold the appellant to be in
“lawful possession" of the suit land on the date of filing of the suit
(29.10.98) for considering grant of injunction over the suit land
against the respondents.
37) It is a settled principle of law that in order to claim
prohibitory (temporary or permanent) injunction, it is necessary for
the plaintiff to prima facie prove apart from establishing other two
ingredients, namely, irreparable loss and injury that his possession
over the suit land is "legal". In this case, it was not so and nor it
could be for the simple reason that as far back on 21.08.1976, the
Tribunal had already declared the land held by the plaintiff to be in
excess of the ceiling limits prescribed under the Act. In these
circumstances, the plaintiff was neither holding the land nor could he
be held to be in its lawful possession so as to enable him to exercise
any ownership rights against any other private party over the suit
land. The appellant had then very limited rights left to exercise
under the Act in relation to the suit land and such rights were
available to him only against the State. Such is not the case here.
38) Lastly, this being a simple suit for grant of permanent
injunction between the two private parties in relation to the land
which was subject matter of the State Ceiling Laws, was liable to be
dismissed on the short ground apart from many others as detailed above
that any order that may be passed by the Civil Court would adversely
affect and interfere in the rights of the State under the Act, which
had not been impleaded as party defendant.
39) Learned counsel for the appellant took us to the various
documents including orders of the Revenue authorities to show that it
was the plaintiff who was in possession of the suit land on the date
of filing of the suit as was rightly held by the Trial Court and,
therefore, this Court should restore the finding of the Trial Court.
40) We are afraid we cannot re-appreciate the documentary or/and
oral evidence again in our appellate jurisdiction. Firstly, it is not
permissible for want of any case made out to that effect and secondly,
it is not considered necessary in the light of what we have held
above.
41) Learned counsel for the appellant placed reliance on several
decisions in support of his submission such as Nagubai Ammal & Ors.
vs. B. Shama Rao & Ors., AIR 1956 SC 593, Bhagwati Prasad vs. Shri
Chandramaul, AIR 1966 SC 735, Pinninti Kishtamma & Ors. vs. Duvvada
Parasuram Chowdary & Ors. 2010 (2) SCC 452, State of Tamil Nadu vs.
Ramalinga Samigal Madam, 1985 (4) SCC 10, Annamreddi Bodayya & Anr.
vs. Lokanarapu Ramaswamy(Dead) by L.Rs. 1984 Suppl SCC 391, Anathula
Sudhakar vs. P. Buchi Reddy(D) by L.Rs., 2008 (4) SCC 594, Rajendra
Singh & Ors. vs. State of U.P. & Ors., (1998) 7 SCC 654 and Karnail
Singh vs. State of Haryana & Anr., (1995) Suppl(3) SCC 376. We have
perused these decisions and find no quarrel with the general
proposition of law laid down therein. In our view, all the decisions
cited are distinguishable on facts and hence have no application to
the facts of this case.
42) It is pertinent to mention that in order to limit filing of such
frivolous suits by the private parties in relation to agricultural
land which are subjected to the State ceiling laws, the State of M.P.
amended the Code of Civil Procedure by Act No. 29 of 1984 w.e.f.
14.8.84. By this State amendment, Rule 3-B was added in Order 1 Rule
10 making it obligatory upon the plaintiff to implead the State as
party defendant along with private party defendant in every such suit.
The amendment further provides that so long as the plaintiff does not
implead the State as party defendant in the suit, the Court will not
proceed with the trial of the Suit. The object behind introducing such
amendment was to give notice to the State of filing of such suit by
the holder of the agricultural land which would enable the State to
defend their rights, which had accrued in State's favour in the land
under the Act.
43) In the absence of any such rule in operation in the State of
A.P., the State remained unnoticed of the suit proceedings, which
continued in Courts for last more than two decades.
44) In view of foregoing discussion, we uphold the conclusion
arrived at by the High Court on our reasoning given supra. As a
consequence, the appeal fails and is accordingly dismissed.
45) Before parting, we consider it apposite to state that the
appellant and the respondents made frantic efforts to somehow retain
the suit land to them and keep the land away from the clutches of The
Act. With this aim in view, they got the suit land involved in this
litigation since 1976. All this was done without notice to the State
Authorities.
46) We, therefore, direct the Tribunal to take up the case of the
appellant on its Board and pass appropriate consequential order, if
necessary under the Act keeping in view the order dated 21.08.1976 of
the Tribunal passed in CC No. 2311/VKD/75 and take all remedial steps
as are necessary in relation to the land held by the appellant
including the suit land.
47) Registry is directed to send a copy of this order to the
concerned Tribunal.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[NAVIN SINHA]
New Delhi;
April 13, 2017
