2013
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P.Veerabhadrappa
Setty ....Appellant -vs- Polliki Chandrahas.....Respondent in
C.M.A.Nos.286 of 2013 AND BATCH
THE HON'BLE SRI JUSTICE
M.S.RAMACHANDRA RAO
C.M.A.Nos.286 of 2013 AND
BATCH
26-11-2013
P.Veerabhadrappa Setty ....Appellant
Polliki
Chandrahas.....Respondent
Counsel for the petitioner:
Sri T.S.Anand
Counsel for the respondent:
Sri K.Sita Ram
<GIST:
>HEAD NOTE:
?Cases referred
1 (2010) 1 SCC 689
2 (2009) 6 SCC 194
3 (2009) 12 SCC 101
4 AIR 1926 P.C. 100
5 (1996) 11 SCC 696
The Court made the following
: [order follows]
THE HON'BLE SRI JUSTICE M.S.
RAMACHANDRA RAO
C.M.A.Nos.286 and 287 of
2013
COMMON JUDGMENT:
As the issues raised in both these appeals
are connected, they are being
disposed of by this common
judgment.
2. C.M.A.No.286 of 2013 is
filed challenging the order
dt.12-02-2012 in I.A.No.608 of
2012 in O.S.No.22 of 2012 on the file of II
Additional District Judge,
Adoni.
3. C.M.A.No.287 of 2013 is
filed challenging the order dt.12-
02-2012 in I.A.No.610 of 2012
in O.S.No.23 of 2012 on the file of II Additional
District Judge, Adoni.
4. The appellants in these
appeals are the defendants in the above suits.
5. An extent of Ac.22.27 cts. in Sy. No.498,
situated in the Halaharvi
village and Mandal of Kurnool
District was admittedly owned by one Chittam
Ramaswamy.
6. One Veerabhadrappa Setty
(1st defendant in both suits) and Venkanna Setty are
brothers and are sons of one
Seenappa Setty. Padmavathamma is the
wife of
Venkanna Setty. Seenaiah Setty (2nd defendant in both suits)
is the son of the
1st defendant.
7. The 1st defendant was
treated as his foster son by Chittam Ramaswamy.
8. Under a registered gift
deed dt.21-05-1956 being document No.824 of 1956,
Chittam Ramaswamy gifted the
above property to 1st defendant.
9. O.S.No.22 of 2012 and
O.S.No.23 of 2012 respectively were filed by plaintiffs
before the II Additional
District Judge, Kurnool for a perpetual injunction
restraining the defendants
from interfering with their alleged peaceful
possession and enjoyment of
the above extents of land. They alleged that the
said gift deed dt.21.5.1956
was not acted upon; on 23-08-1990, that 1st
defendant relinquished his
rights over this property in favour of his brother
Venkanna Setty by receiving an
amount of Rs.60,000/-; that Venkanna Setty
thereafter relinquished his
rights in the land in favour of his wife
Padmavathamma under a revenue
transfer affected under Section 5A of the Andhra
Pradesh Rights in Land and
Pattedar Passbooks Act, 1971 (for short, 'the Act')
by paying Rs.1,170/- towards
stamp duty and Rs.240/- towards registration
charges; on her death, Venkanna Setty succeeded to the
property; he sold an
extent of Ac.11.12 cts. out of
the above land in favour of Poliki
Chandrahas
(plaintiff in O.S.22/2012) and
the balance of Ac.11.15 cts. in favour of his
brother Poliki Umesh
(plaintiff in O.S.23/2012) under two registered sale deeds
dt.11-04-2012; that the
plaintiffs/respondents herein are in possession and
enjoyment of the respective
extents purchased by them; and on 20-09-2012,
defendants tried to trespass
into the land and dispossess them.
10. They also filed I.A.No.608
of 2012 and 610 of 2012 respectively in these
suits under Order 39 Rules 1
and 2 CPC for a temporary injunction restraining
defendants from interfering
with their alleged possession and enjoyment of the
plaint schedule properties.
11. In these I.As., the
plaintiffs reiterated their pleadings in
the plaint and
contended that the revenue
authorities had accepted the title of
Padmavathamma
and later that of Venkanna
Setty by issuing pattedar passbook and title deed and
also mutated their names in
the revenue records. In support of the
said pleas
in the above I.As, the
plaintiffs filed Exs.P-1 to P-18.
12. The defendants filed
counter affidavits in the I.As denying the allegations
made by the plaintiffs. They contended that the regd. gift deed
dt.21-05-1956
was acted upon and 1st
defendant was put in possession of the land; that he
mortgaged it in favour of
Magam Obanna on 14-02-1962 for a loan of Rs.8,000/-;
subsequently it was again
mortgaged to H.Narayana Reddy on 14-06-1962 for
Rs.3,000/-; on 09-06-1976,
there was a mortgage in favour of Chintakunta
Cooperative Society for a loan
of Rs.6,000/-; that on 23-08-1990, Venkanna Setty
had executed any agreement to
purchase the land in favour of 1st defendant for
Rs.60,000/- but did not pay
the agreed sale consideration or obtained possession
of the suit land; therefore
the defendants continue to be in possession and
enjoyment of the land; that on
27-06-2012, 1st defendant executed the
registered gift deed in favour
of his son, the 2nd defendant; and the plaintiffs
have neither prima facie case
nor balance of convenience and the defendants are
in possession and enjoyment of
the land, no injunction be granted in
their
favour. In support of their plea, they filed Exs.R-1
to R-13.
13. By separate orders
dt.12-02-2012, the Court below allowed the said I.As. and
granted temporary injunction
in favour of the plaintiffs in the respective suits
against the defendants.
14. The Court below held
that the revenue entries from 1969 till 2012 in Exs.P-1 to P-18 filed by the
plaintiffs indicate that Venkanna Setty is the owner of the property; that an
endorsement about sale of property by Venkanna Setty in favour of the
plaintiffs was made by the Tahsildar, Halaharvi in the pattedar passbook by
rounding of the said extent sold under Ex.A-1; the same Tahsildar could not have
issued pattedar pass book in favour of 2nd defendant in April 2012 and revenue
title deed in favour of 1st defendant in June 2012 for the same land; that no
enquiry appears to have been done before doing so; therefore theirgenuineness
is in doubt; that the extent covered by the gift deed dt.12-05-1956 is only
Ac.11.13 cts. in Sy. No.498-A and after he had gifted it to 2nd defendant,
the 1st defendant could not have been issued a revenue title deed for the same
extent; that the adangal for the year 1421 Fasli (2011) issued on 08-06-2012
shows the 1st defendant as the pattedar and possessor for entire Ac.22.27 gts.
which could not have been correct as only Ac.11.13 gts. was gifted under the
gift deed dt.12-05-1956; that in the pahani for 1422 Fasli, 2nd defendant
is shown as the pattedar and possessor to the extent of Ac.11.13 cts. and 1st
defendant is shown to be the pattedar and possessor of Ac.11.13 ½ cts.; these
two pahanies were prepared by the V.R.O. on 29-09-2012 and counter signed by
the Tahsildar on 03-10-2012 and they create suspicion too; the
creation of mortgages by respondents to various persons also create doubt; that
Ex.P-13, a computer generated copy of adangal for 2012 shows Venkanna Setty as
the owner and possessor of the property; therefore the plaintiffs are entitled
to temporary injunction.
15. Aggrieved by the same,
these C.M.As. have been filed by the defendants in
the suits.
16. Heard Sri Y.Srinivasa Murthy,
for Sri T.S.Anand, learned counsel for the
appellants/defendants and Sri
Ganta Rama Rao, learned counsel for the
respondents/plaintiffs.
17. The counsel for the
appellants/defendants contended that the orders of the
Court below are unsustainable;
that the gift deed dt.12-05-1956
has not been filed by the
plaintiffs to find out the extent of land gifted by
Chittam Ramaswamy to the 1st
defendant; there is no basis for the trial Court to
come to the conclusion that
only Ac.11.13 cts. was the subject matter of the
said gift; that the
relinquishment deed dt.23-08-1990 pleaded by the plaintiffs
has also not been filed and it
is not the case of the plaintiffs that it is a
registered document; there
cannot be any transfer of title from 1st defendant to
his brother Venkanna Setty
under such an unregistered document; that the
unregistered sale deed by
which Venkanna Setty allegedly sold the land to his
wife Padmavathamma has also
not been filed by the plaintiffs; that
the
proceedings under Section 5A
of the Act regularizing such alleged sale by the
Mandal Revenue Officer,
Halaharavi are not binding on the defendants as they
have been done behind the back
of the defendants; that the entries in the
revenue records filed by the
plaintiffs are manipulated in collusion with the
revenue officials; that defendants had also filed an application
before the
R.D.O., Adoni to set aside the
pattedar passbooks issued to the plaintiffs, but
by order Ex.R-8 dt.11-12-2012
in reference Rc (e).No.2255/2012, the Revenue
Divisional Officer directed
them to get the issue resolved before the Civil
Court as O.S.No.22 of 2012 and
23 of 2012 are pending before the II Additional
District and Sessions Judge,
Adoni. They contended that plaintiffs
do not have
prima facie title and in
Exhibits filed by plaintiffs, their possession was
allegedly recorded on the
basis of the proceedings under Section 5A of the Act, which are in violation of
principles of natural justice, the plaintiffs cannot be taken to be in
possession of the plaint schedule property and the impugned orders be set
aside.
18. The learned counsel for
the respondents, on the other hand, contended that
the orders passed by the Court
below do not suffer from any infirmity; that
valid reasons have been given
by the Court below for granting temporary
injunction in favour of plaintiffs; that only after proper enquiry,
the
transfer by Venkanna Setty in
favour of Padmavathamma was regularized under
Section 5A of the Pattadar
Pass Books Act, 1971 (for short, 'the Act');
there
is a remedy of appeal provided
under Section 5B of the Act r/w Rule 22A of the
Rules to the R.D.O. within 30
days; that the defendants have not availed of the
same; that under Section 6 of
the Act, there is a presumption of correctness of
entries in record of rights as
true; the long possession of plaintiffs
is
evidence of their title; and
therefore the possession of the plaintiffs as
reflected in the exhibits
filed by them be accepted; and the appeals be
dismissed.
19. I have noted the submissions
of both sides.
20. It is settled law that
for grant of injunction in favour of a plaintiff, he
has to make out a prima
facie case, show balance of convenience in his favour and prove that
irreparable injury would be caused to him, in case injunction is not granted in
his favour.
In Kashi Math Samsthan v.
Shrimad Sudhindra Thirtha
Swamy1, the Supreme court
declared :
"16. It is well settled
that in order to obtain an order of injunction, the
party who seeks for grant of
such injunction has to prove that he has made out a
prima facie case to go for
trial, the balance of convenience is also in his
favour and he will suffer
irreparable loss and injury if injunction is not
granted. But it is equally
well settled that when a party fails to prove prima
facie case to go for trial,
question of considering the balance of convenience
or irreparable loss and injury
to the party concerned would not be material at
all, that is to say, if that
party fails to prove prima facie case to go for
trial, it is not open to the
court to grant injunction in his favour even if, he
has made out a case of balance
of convenience being in his favour and would
suffer irreparable loss and
injury if no injunction order is granted."
21. By applying this
principle, I will first consider whether the plaintiffs
have established prima
facie case in their favour.
22. There is no dispute that
the original owner of the property is Chittam
Ramaswamy and that he executed
a registered gift deed dt.12-05-1956 in favour of
the 1st defendant. This deed is not filed by either party. But plaintiffs
contended that only an extent
of Ac.11.13 cts. was gifted under this deed in
favour of 1st
defendant and not the entire extent of Ac.22.27 cts. This
contention of plaintiffs was
accepted by the trial Court. Without the
said
registered gift deed being
filed by the plaintiffs to prove the extent in
respect of which the gift was
made, it was not open to the Court below to accept
this contention.
23. The plaintiffs also
pleaded that there was a relinquishment
deed executed
on 23-08-1990 by 1st defendant in favour of Venkanna Setty by
receiving an
amount of Rs.60,000/-. This deed has also not been filed by
plaintiffs. It is
settled law that there can be
no transfer of title/extinguishment of title under
an unregistered and unstamped
relinquishment deed in view of the provisions of
the Transfer of Property Act,
1882 and the Registration Act, 1908.
In Sneh Gupta v. Devi
Sarup2, the apex court held :
"32. Title to a property
must be determined in terms of the statutory provision.
If by reason of the provisions
of the Hindu Succession Act, 1956 the appellant
herein had derived title to
the property along with her brothers and sisters,
she cannot be deprived thereof
by reason of an agreement entered into by and
between the original plaintiff
and the contesting defendants. If a party
furthermore relinquishes his
or her right in a property, the same must be done
by a registered instrument in
terms of the provisions of the Registration
Act."(emphasis supplied)
24. As there is no transfer of
title from 1st defendant to Venkanna Setty under
the alleged relinquishment
deed, the 1st defendant continues to be the owner of
the land.
25. In this view of the
matter, Venkanna Setty could not have transferred the
land in favour of his wife
Padmavathamma since one cannot transfer what he does
not have. In any event, even
this document purporting to transfer title in
favour of Padmavathamma has
been suppressed by the plaintiffs.
26. Thus prima facie
Padmavathamma had not obtained any title to the land, notwithstanding the
proceedings under Section 5A of the Act.
The plaintiffs have filed Exs.P-3 and P-4, a notice and certificate
issued by the M.R.O.,Halaharvi as to payment of stamp duty and registration fee
to the State. Under sub Section (4) of Section 5A, such certificate is
not binding on third parties like the defendants but only binds the alienor or
transferor or any person claiming interest under him. The defendants do not come under any of these
categories. Moreover no material is
placed before this Court to prove that the
said proceedings under Section
5A of the Act were done after giving notice to
the affected parties such as
the defendants. Therefore the said
proceedings,
having been obtained behind
the back of the defendants and in violation of
principles of natural
justice, have to be treated as null and void.
27. It is contended by the
counsel for the respondents/plaintiffs that the
entries in the revenue records
have been made on the basis of the proceedings
under Section 5A of the Act
issued by the M.R.O.
28. He relied on Section 6 of
the Act and contended that entry in revenue
records in plaintiffs favour
have to be presumed to be true. In my opinion, the
said provision provides
that every entry in record of rights shall be presumed to be true until the
contrary is proved. The facts and the
findings set out above are sufficient to rebut the presumption, if any, in
favour of the
plaintiffs under Section 6
of the Act that the entries in the record of rights
in their favour are
correct.
29. Admittedly, the adangal
for the year 1421 Fasli (2011) issued on 08-06-2012 shows the 1st defendant as
the pattedar and possessor for entire Ac.22.27 gts. and in the pahani for 1422
Fasli, 2nd defendant is shown as the
pattedar and possessor to the extent of Ac.11.13 cts. and 1st defendant is
shown to be the pattedar and possessor of Ac.11.13 1/2 cts. So on the date of
suit, prima facie they are in possession and enjoyment of the plaint schedule
property. The defendants had questioned the grant of pattedar passbooks to the
plaintiffs in an appeal before the R.D.O., Adoni but the same was rejected
directing them to approach the Civil Court.
Therefore the defendants cannot be found fault with for not availing the
alternative remedy of appeal under Section 5B of the Act.
30. I am also unable to
accept the contention of the counsel for the plaintiffs
that the allegedly long
possession of the plaintiffs is evidence of their title.
It is settled law that mere
long possession would not fructify into title,
unless such possession is
adverse to the real owner (Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale3). In this case, there is no such plea of
acquisition of title by
Venkanna Setty by adverse possession as against the
defendants.
31. It is settled law that
entries in revenue record are not proof of title [see
(Thakur) Nirman Singh and
Others Vs. Thakur Lal Rudra Partab Narain Singh and Others4]. Such entries facilitate
collection of revenue. That is why there is no conclusive presumption provided
in Section 6 of the Act. It is
unfortunate that provisions like Section 5A of the Act are being misused by
litigants in collusion with revenue authorities, unsettling settled title in
favour of the actual owners. This case
is a classic illustration of this phenomenon.
32. The conduct of the
plaintiffs in suppressing (i) the regd. gift deed dt.12.5.1956 in favour of 1st
defendant by Chittam Ramaswamy, (ii) the unregistered relinquishment deed by
1st defendant in favour of Venkanna Setty and (iii) the sale deed allegedly
executed by him in favour of Padmavathamma, also disentitle them to grant of
the equitable relief of injunction, as they have not come to the court with
clean hands.
33. Since the plaintiffs are found not to have
prima facie title, even assuming for the sake of argument without conceding
that they are in possession of the land, grant of injunction in their favour
would amount to granting an injunction against the lawful owner. This is not permissible in law. (See Hanumanthappa v.
Muninarayanappa5)
34. For all the above
reasons, I am hold that the orders passed by the court
below are unsustainable.
The court below unfortunately did not consider the matter in the above manner
and it gave more importance to the entries in the revenue records produced by
the plaintiffs and rejected those produced by the defendants ignoring the
principles of law governing transfer of title referred to supra.
35. Therefore the orders dt.
12.2.2013 in IA.No.608/2012 in O.S.22/2013 and in
I.A.610/2012 in O.S .23/2012
of the Court below are contrary to law and are setaside.
36. The C.M.As. are
accordingly allowed. No costs.
37. Miscellaneous applications
pending, if any, shall stand closed.
____________________________
JUSTICE M.S.RAMACHANDRA
RAO
Date: 26-11-2013
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