Or.39, Rule 1 and 2 of C.P.C.- bare injunction suit - other side alleged joint family - Ex. 1 B register , every document - pattadar pass book , title deed and tax receipts etc., stands in the name of petitioner - Lower courts committed error - their lordships held that At the interlocutory stage, the trial Court has to depend mostly upon the documentary evidence. The pattadar passbooks and title deeds issued in favour of the parties assume significance, in view of the presumption provided for under the Act. It may be true that the entries in 1-B register constitute the basis for issuing a pattadar pass book. However, if the pattadar pass book is issued in respect of a piece of land, ignoring the entries in 1-B register, it would constitute a ground for the aggrieved party, to prefer appeal under Section 5-B of the Act. As long as the pattadar pass book remains, the presumption deserves to be drawn and the Court cannot ignore the same. = Salapu Ramana & others ..Petitioners Salapu Sanyasirao ..Respondent = 2013(July. part) judis.nic.in/judis_andhra/filename=10118

Or.39, Rule 1 and 2 of C.P.C.- bare injunction suit - other side alleged joint family - Ex. 1 B register , every document - pattadar pass book , title deed and tax receipts etc., stands in the name of petitioner - Lower courts committed error - their lordships held that At the interlocutory stage, the trial Court has to depend mostly upon the documentary evidence.  The pattadar passbooks and title deeds issued in favour of the parties assume significance, in view of the presumption provided for under the Act.  It may be true that the entries in 1-B register constitute the basis for issuing a pattadar pass book.  However, if the pattadar pass book is issued in respect of a piece of land, ignoring the entries in 1-B register, it would constitute a ground for the aggrieved party, to prefer appeal under Section 5-B of the Act.  As long as the pattadar pass book remains, the
presumption deserves to be drawn and the Court cannot ignore the same. =

At the interlocutory stage, the trial Court has to depend mostly upon the
documentary evidence.  The pattadar passbooks and title deeds issued in favour
of the parties assume significance, in view of the presumption provided for
under the Act.  It may be true that the entries in 1-B register constitute the
basis for issuing a pattadar pass book.  However, if the pattadar pass book is
issued
in respect of a piece of land, ignoring the entries in 1-B register,
it would constitute a ground for the aggrieved party, to prefer appeal under
Section 5-B of the Act.  As long as the pattadar pass book remains, the
presumption deserves to be drawn and the Court cannot ignore the same. 

The trial Court and the lower Appellate Court have taken into account, Exs.P-1
and P-2, and the entries in the adangals.  It is only when the concurrent
findings recorded by the trial Court and the lower Appellate Court are found to
be perverse, or not based upon any evidence, that this Court can interfere in a
revision.
2013(July. part) judis.nic.in/judis_andhra/filename=10118

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY            
C.R.P.No.2572 of 2011

dated:05-07-2013

Salapu Ramana & others  ..Petitioners      

Salapu Sanyasirao ..Respondent

Counsel for the petitioners     :  Sri K.V. Simhadri

Counsel for the respondent      :  Sri T.V.S. Prabhakar Rao

<GIST:

>HEAD NOTE:  

?Cases referred

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        


C.R.P.No.2572 of  2011

ORDER:

The respondent filed O.S.No.226 of 2009 in the Court of
Principal Senior Civil Judge, Anakapalli, against the petitioners herein, for
the relief of perpetual injunction in respect of, as many as 21 items of suit
schedule property, which are agricultural lands of small bits.  He has also
filed I.A.No.814 of 2009 under Order XXXIX Rules 1 and 2 C.P.C., for injunction
against the petitioners.
He narrated the manner in which, he is said to have acquired the rights over the
property, after the death of his father, and the nature of rights, being
exercised by him, vis--vis the land.  He alleged that the petitioners were
interfering with his possession without any basis.

The petitioners filed counter, denying the allegations.  According to them, the
suit schedule property is held by the joint family, and the respondent was not
entitled to claim absolute rights over it.  The trial Court allowed the I.A.,
through its order dated
21-07-2010.  Aggrieved by the same, the petitioners filed C.M.A.No.34 of 2010,
in the Court of VII Additional District Judge (Fast Track Court), Visakhapatnam.
The C.M.A was dismissed, through order dated 30-12-2010.  Hence, this revision.

Sri K.V. Simhadri, learned counsel for the petitioners submits that the suit
schedule properties are held by the joint family, and no partition has taken
place.  He contends that the respondent filed the suit, without even referring
to the relation of the parties, and has wrongfully claimed exclusive rights over
the property.
He contends that Form-1-B Register, maintained under the
A.P. Rights in Land Pattadar Passbooks Act (for short 'the Act')
and the Rules made thereunder, constitutes the basis to determine the ownership
and possession, and in utter disregard of the same, the respondent managed to
get the title deeds, taking advantage of the fact that his father-in-law was the
Village Revenue Officer.  He submits that even now, the petitioners are in
possession of the property.

Sri T.V.S. Prabhakar Rao, learned counsel for the respondent, on the other hand,
submits that the suit schedule property exclusively belongs to his client, and
the same is evident from
Exs.P-1 and P-2, the pattadar pass books and title deeds.
He submits that the latest adangals also support the claim of the respondent and
the petitioners miserably failed before both the
Courts below, to establish their possession over the property.

In the suit for injunction, filed by him, the respondent has also prayed for the
relief of temporary injunction, by filing IA.No.814 of 2009.  The parties are
related to each other.  The respondent, however, pleaded that the property was
held by his father, and on his death, it devolved upon him.  The relevant issue before the trial Court,
at that stage, was, about the prima facie case, as to possession.  The
respondent filed Exs.P-1 to P-9.  Out of which, Exs.P-1 and P-2 are pattadar
passbooks and title deeds, respectively, and Exs.P-3 and P-4 are copies of No. 3
adangals, dated 13-10-2009.  Exs.P-5 to P-7 are land revenue receipts, Ex.P-8 is
the sale deed dated 13-03-2008, and Ex.P-9 is the agreement of sale-cum-G.P.A.,
dated 18-05-2007.  On behalf of the petitioners, Exs.R-1 to R-14 were filed.
Except Exs. R-6 to R-9, i.e., 1-B registers in favour of the petitioners 1, 5
and 9, rest of the documents are land revenue receipts and adangals for earlier
years.

At the interlocutory stage, the trial Court has to depend mostly upon the
documentary evidence.  The pattadar passbooks and title deeds issued in favour
of the parties assume significance, in view of the presumption provided for
under the Act.  It may be true that the entries in 1-B register constitute the
basis for issuing a pattadar pass book.  However, if the pattadar pass book is
issued
in respect of a piece of land, ignoring the entries in 1-B register,
it would constitute a ground for the aggrieved party, to prefer appeal under
Section 5-B of the Act.  As long as the pattadar pass book remains, the
presumption deserves to be drawn and the Court cannot ignore the same. 

The trial Court and the lower Appellate Court have taken into account, Exs.P-1
and P-2, and the entries in the adangals.  It is only when the concurrent
findings recorded by the trial Court and the lower Appellate Court are found to
be perverse, or not based upon any evidence, that this Court can interfere in a
revision.
Such a situation does not arise in the instant case.  If the petitioners file
appeal under the Act, and are successful in getting
Exs.P-1 and P-2 set aside, they can certainly seek modification of the order
under revision.

Hence, the C.R.P is dismissed, however, observing that,
in case Exs.P-1 and P-2 are set aside by an Appellate Authority under the Act,
at the instance of the petitioners, it shall be open to them to file an
application under the relevant Rules of Order XXXIX C.P.C., before the trial
Court, and the same shall be decided
on its own merits.

The miscellaneous petition filed in this C.R.P shall also stand disposed of.
There shall be no order as to costs.

______________________  
L. NARASIMHA REDDY, J    

Dt.05-07-2013

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.