Telangana High Court
Smt. Moti Baidied Per Lrs Appellants 19 ... vs Magan Lal,Hyderabad 6 Ots on 25 February, 2022
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
SECOND APPEAL No.420 OF 2012
JUDGMENT:
1. The present appeal assails the judgment and decree dated 05.08.2011 in A.S.No.53 of 2007 on the file of the Court of the VI Additional District Judge (Fast Track Court) at Vikarabad (for short, lower appellate Court), whereunder the appeal was allowed reversing the injunction granted by the Court of the Junior Civil Judge, Vikarabad, Ranga Reddy District (for short, trial Court) in O.S.No.40 of 1993, dated 26.07.2002.
2. The appellants herein are the plaintiffs and the respondents herein are the defendants in O.S.No.40 of 1993. For the sake of convenience, the parties hereinafter are referred to as they are arrayed in O.S.No.40 of 1993.
3. The case of the plaintiffs is that they purchased the suit property from defendant No.1 under a receipt dated 01.05.1978 (Ex.A-1) by paying advance amount of Rs.500/-. The price agreed was Rs.5/- per square yard and the balance amount was agreed to be paid at the time of registration of the sale deed. The plaintiffs claimed that defendant No.1 sold the suit property to late Babu Lal, who 2 ML,J SA_420_2012 is the husband of plaintiff No.1 and father of other plaintiffs. On the same day, the possession of the suit property was delivered to Babu Lal. Subsequently, Babu Lal had obtained construction permission from the Gram Panchayat on 10.08.1981 and laid stone pillars surrounding the suit property. The plaintiffs also pleaded that part of the suit premises were let out to the tenants, who are running tyre puncture shop and kirana shop by obtaining due licences from Gram Panchayat. All the above facts establish their settled possession over the suit property.
4. The further case of the plaintiffs is that previously also, one S.Narsimhulu filed a suit O.S.No.5 of 1983 on the file of the Court of District Munsiff, Vikarabad, against Babu Lal in respect of 'seri land' in between the house plots of Narsimhulu and Babu Lal. The plaintiffs have contested the said suit by marking Ex.A-3, the construction permission and plan dated 10.08.1981 and the said suit was filed for mandatory injunction for removal of stone pillars erected by Babu Lal. Ultimately, the said suit was dismissed. Aggrieved by the same, an appeal was also preferred and the same was also dismissed.
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5. The further case of the plaintiffs is that plaintiff Nos.3 and 4 have also filed O.S.No.27 of 1992 on the file of the Court of District Munsiff, Vikarabad. In the said suit, they have also filed I.A.No.105 of 1992 seeking interim injunction and initially, injunction was granted on 21.05.1992. Defendant No.2 in the present case filed a counter in the said application claiming that he had purchased 969 square yards. Ultimately, the said suit was dismissed on the jurisdictional aspect.
6. The further case of the plaintiffs is that the defendants, without any right, tried to interfere with the possession of the plaintiffs. The plaintiffs as well as Babu Lal have been expressing their readiness and willingness to perform their part of obligation under Ex.A-1, but defendant No.1 has not been willing to perform his part of obligation, and contrarily, he executed a sale deed in favour of defendant No.2 to deny the rightful claim of the plaintiffs. When defendant No.2 on the basis of the sale deed tried to interfere with the possession of the plaintiffs, the present suit has been filed for specific performance as well as grant of injunction.
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7. The case of the defendants is that Babu Lal and the father of defendant No.2 are the brothers and he denied the sale agreement in between Babu Lal and defendant No.1. They also denied the ownership of Babu Lal and the plaintiffs over the suit property. According to defendant No.2, he entered into an agreement of sale with defendant No.1 in the year 1978 and he has obtained construction permission from Gram Panchayat. Subsequently, defendant No.2 has entered into a registered sale transaction with defendant No.1 in the year 1992 vide document No.5648/1992 in the office of District Registrar, Ranga Reddy District. Thereafter, he has raised the construction and let out the premises to the tenants and the tenants are running the business.
8. The trial Court, on the basis of the above pleadings, has framed the following issues:
"1. Whether the defendant No.1 entered into an agreement of sale with late Babulal on 1-5-78 by receiving Rs.500/- and passed receipt and delivered possession of suit schedule plots 9 and 10 measuring 400 sq. yards in Sy.No.49/1, situated at Manneguda?
2. Whether the Late Babulal constructed 23 pillars over the suit schedule land with the permission of G.P., Manneguda?
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3. Whether the regd. Sale deed dated 12-5-98 executed by D-1 and one Snuil in favour of D-2 is genuine and binding on the plaintiffs?
4. Whether the Late Babulal is GPA of the D-2 as alleged by the defendants?
5. Whether the plaintiffs are entitled for specific performance of agreement entered by D-1 on dated 1-5- 78 by receiving Rs.500/- on advance of sale consideration?
6. Whether the D-2 interfered with the possession of plaintiffs over the suit schedule land and are entitled to perpetual injunction against the defendants?
7. Whether the suit is barred by limitation?"
9. The plaintiffs, to support their case, examined P.Ws.1 to 7 and relied upon Exs.A-1 to A-42. The defendants, to support their case, examined D.Ws.1 to 4 and relied upon Exs.B-1 to B-11.
10. The trial Court, after appreciating the evidence on record, found that Ex.A-1 is a validly executed document and also held that the plaintiffs are not entitled for specific performance of agreement under Ex.A-1 on equitable consideration, however, granted injunction as prayed for. Aggrieved by granting of injunction order, defendant No.2 preferred A.S.No.53 of 2011 before the lower appellate Court, which after examination of evidence, found that the 6 ML,J SA_420_2012 plaintiffs are not entitled for injunction for the reason that the trial Court, having denied the relief of specific performance, ought not to have granted injunction. Challenging the same, the plaintiffs filed the present Second Appeal.
11. As seen from the memorandum of grounds, the following substantial questions of law were framed.
"a. Whether the relief of injunction can be declined in a suit for specific performance and injunction when the possession of plaintiffs is established for a long time?
b. Whether there is a bar for granting injunction decree even assuming that defendants are not entitled for relief of specific performance?
c. Whether the plaintiffs could be granted relief of injunction even if it is held that they are not entitled to defend their possession under Section 53-A of the Transfer of Property Act?
d. Whether the findings in a contested injunction decree in another suit in which the defendants herein are not parties is not binding on the defendants when the subject matter of the property is one and the same?"
12. This Court heard the contentions of learned counsel for both sides on the above said substantial questions of as well as merits of the case.
13. On going through the contentions and the examination of the impugned judgments, the following substantial 7 ML,J SA_420_2012 questions of law arise for consideration in the present Second Appeal.
"a. Whether the plaintiffs are entitled for injunction which is prayed independently when the suit for specific performance is rejected?
b. Whether for the relief of independent injunction in a suit for specific performance, the plaintiffs are required to prove the requirement of Section 53-A of the Transfer of Property Act to protect the possession?"
14. The substantial questions of law framed by this Court are all almost similar to the substantial questions framed in the memorandum of grounds of appeal, as such, no further hearing is required on the substantial questions of law framed by this Court, since the arguments were already heard in respect of the merits as well as substantial questions of law raised in the memorandum of grounds.
15. The relief prayed in the plaint shows that the plaintiffs sought specific performance of agreement of sale under Ex.A-1, and at the same time, they sought independent relief of injunction. The plaintiffs have not sought the injunction relief as a consequential relief for the specific performance. When the relief of injunction is consequential to the relief of specific performance, once the specific performance has been denied, the consequential injunction cannot be granted 8 ML,J SA_420_2012 unless the ingredients of Section 53-A of the Transfer of Property Act (for short, the Act) are made out.
16. The Apex Court, in Gunwantbhai Mulchand Shah v. Anton Elis Farel1, had an occasion to deal with the questions raised at the preliminary state of a suit for specific performance and relief of injunction which was filed after 29 years of execution of agreement. While dealing with such questions, it has been held as under:
"14. We have already indicated that the suit insofar as it relates to the prayer for a perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs cannot be held to be barred by limitation. Whether the plaintiffs are able to prove that they are in possession of the suit property as on the date of suit and establish that they are entitled to the injunction prayed for, is a different matter. There is also the question whether the relief of injunction can be treated as being only a relief consequential to the relief of specific performance and the denial of one would automatically lead to the denial of the other, or whether it is an independent relief in itself and even if the plaintiffs are not entitled to a decree for specific performance they would still be entitled to a decree for injunction, a relief the grant of which is, of course, in the discretion of the court. It may be noticed that a suit 1 (2006) 3 SCC 634 9 ML,J SA_420_2012 for injunction would be governed by the residuary article, Article 113 of the Limitation Act and the cause of action for the said relief arises when the right to sue accrues. That would depend upon the court deciding when the right accrued, on the pleadings and the evidence in the case. Therefore, the suit insofar as it relates to the prayer for a decree for perpetual injunction cannot be held to be barred by limitation at this preliminary stage?
17. A reading of the above decision would indicate that for grant of relief of injunction, various parameters have been laid down and each one has to be dealt with independently. The Apex Court also dealt with an injunction which is prayed as a consequence of the main prayer.
18. In the present case, apart from specific relief prayer, the plaintiffs also sought an independent injunction based on their possession. Though they claimed that the possession was on account of execution of Ex.A-1, merely because Ex.A-1 is not enforced, it cannot be said that the relief of injunction cannot be granted if it is prayed independently and there is sufficient evidence to indicate that the plaintiff has been in possession of such a property.
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19. The findings of both the Courts below would show that the trial Court has given a finding that Ex.A-1 has been proved and the trial Court found that there is no challenge to the said findings from the parties. This means, the finding recording the truthfulness of Ex.A-1 has been established. Admittedly, Ex.A-1 does not contain the details of the land which is agreed to be conveyed and also the boundaries, delivery of possession and extent of land. Perhaps, that might be the reason for the trial Court to deny the relief of specific performance.
20. The plaintiffs claimed that after the execution of Ex.A-1, delivery of possession was given, even though there is no recital under Ex.A-1 to that effect. Subsequently, Babu Lal had obtained construction permission from the Gram Panchayat under Exs.A-2 to A-4. Ex.A-2 is the permission and Exs.A-3 and A-4 are the plan and blue print which was approved by the Gram Panchayat for making construction.
21. The plaintiffs, to prove the truthfulness of Exs.A-2 to A-4, have relied upon the collateral proceedings in between one Narsimhulu and Babu Lal in O.S.No.5 of 1982. In the 11 ML,J SA_420_2012 said suit, the plaintiffs' father had introduced the permission granted by the Gram Panchayat under Exs.A-2 to A-4. The said documents were marked as Ex.B-3 in the said suit. They show that the permission from the Gram Panchayat was obtained much prior to the litigation started in between the plaintiffs and the defendants herein. They also show that on the strength of such documents, the relief claimed by Narsimhulu for mandatory injunction to remove the stone pillars erected by the plaintiffs' father over the suit land was dismissed. As against the same, an appeal was preferred and the same was also dismissed.
22. The claim of the defendants show that the said suit proceedings in between Narsimhulu and Babu Lal were collusive in nature and do not bind on them. The trial Court has taken cognizance that the plaintiffs and the defendants are not parties to the said proceedings initiated by Narsimhulu, as such, they do not bind on them.
23. Insofar as binding nature of the said suit proceedings on the defendants, the trial Court was right in holding so. The purpose of introduction of the suit proceedings as well as the appeal proceedings is only to substantiate and 12 ML,J SA_420_2012 corroborate the existence of such documents under Exs.A-2 to A-4 in the year 1982 and not for any other purpose. The defendants also claimed to have obtained permission and they also exhibited the permissions under Exs.B-5 to B-7. The trial Court appreciated the evidence and found that those plans do not contain the details of extent of land and the boundaries unlike the plaintiffs' permission and plans under Exs.A-2 to A-4, and hence, priority has been given to Exs.A-2 to A-4.
24. The defendants' own case show that their father purchased the suit property under an agreement and Babu Lal, who is no other than the brother of defendant No.2's father, had put in-charge to lookafter the property by giving GPA. The trial Court considered this defence and a specific issue was framed with regard to execution of GPA in favour of Babu Lal by the father of defendant No.2, but such an issue was answered against defendant No.2 for the reason that he has failed to produce any evidence to show that such GPA was executed.
25. The defendants strongly relied upon Ex.B-1 sale deed, which was executed in the year 1992. The said sale deed 13 ML,J SA_420_2012 refers to agreement of sale executed in the year 1978. However, the defendants have not field any such agreement of sale which was existing in between them in the year 1978.
26. The evidence of the plaintiffs also shows that defendant No.2 is having an independent house near to the suit property and he has no right over the suit premises. In this regard, Exs.A-39 and A-40 have been produced. They clearly show that defendant No.2 had different house premises near the suit property. The plaintiffs have examined D.W.2, who runs a hotel, P.W.3, who runs a kirana shop and P.W.4, who purchased the property from Narsimhulu, who filed O.S.No.5 of 1982. Apart from that, they also filed Exs.A-15 to A-20, the licenses, the communication in between the Tahsildar and Sub-Inspector of Police and the property tax revisions. They also filed Exs.A-27 to A-38, the electricity bills in respect of rented premises which show the hotel and kirana shop are being run in the suit property being the tenants of suit property from the plaintiffs. Apart from that, the plaintiffs have also filed Ex.A-8, revision register of Gram Panchayat pertaining to 1991-92 and tax receipt dated 27.05.1993. All the above 14 ML,J SA_420_2012 documents demonstrate the plaintiffs settled possession over the suit property. There is also a finding from the trial Court that the pillars which were existing on the suit property were installed by Babu Lal which shows the settled possession of the plaintiffs.
27. Ex.A-1 does not refer to the extent of land, boundaries and delivery of possession. It is an incomplete sale transaction, and by seeing the recitals, no prudent man can form an opinion of existence of consensus between the parties over the extent and location of the land. That was the reason for denial of specific performance by the trial Court. The defendants also examined D.W.3 projecting as a tenant. In the chief, he has claimed to have been inducted as a tenant by defendant No.2, however, in the cross examination, confronted with Exs.A-23 rental deed dated 03.11.1999, he has deposed that such a deed was executed in between the plaintiffs and himself. This shows that the defendants' own witness confirmed the landlord and tenant relationship between him and the plaintiffs in respect of the suit premises. This evidence is against the defendants' claim of their possession through tenant.
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28. The long silence of Babu Lal as well as the plaintiffs in discharging their obligation of payment of balance sale consideration and also absence of any steps to enforce the contract would show that there was no readiness and willingness to perform their part of obligation which is essential for protecting of possession under Section 53-A of the Act. The plaintiffs are not entitled to protect the possession under Section 53-A of the Act for the reason that they have not satisfied the requirements for protecting the possession under Section 53-A of the Act. Such a relief can be granted, if the relief of specific performance is denied as time barred. In a given situation, if specific performance is denied as time barred, if the requirement of Section 53-A of the Act is satisfied, the purchaser can be protected under Section 53-A of the Act as against the proceedings initiated by the vendor or he himself can initiate the proceedings to protect his possession. In the present case, the relief of specific performance is denied on the ground that there is no readiness and willingness and there is no clarity in the sale deed with regard to location of the land, delivery of possession thereunder and majority of the consideration was also not paid. The readiness and willingness is one of the 16 ML,J SA_420_2012 essentials for giving protection under Section 53-A of the Act. Once the specific performance is denied on the ground that there is no readiness and willingness on the part of the purchaser, the consequential protection under Section 53-A of the Act cannot be extended. However, in the present case, the plaintiffs have prayed independent relief of injunction apart from relief of specific performance. The plaintiffs have placed sufficient evidence to substantiate that they are in settled possession of the suit property.
29. The trial Court has granted the relief of injunction based on independent evidence. Though the plaintiffs claimed the possession by referring to Ex.A-1, it is silent with regard to delivery of possession under it. This means, the delivery of possession was dehors the independent proceedings, but not under Ex.A-1, though it is done on the same day, as claimed by the plaintiffs. The evidence of tenant's property assessment registers, tax receipts, licences granted by the Gram Panchayat to the tenants of the plaintiffs to run the businesses, the electricity bills which they were paying, and Exs.A-2 to A-4 permission and plans, 17 ML,J SA_420_2012 clearly go to show that Babu Lal as well as the plaintiffs are in the settled possession.
30. The dispute is among the agnates. The father of the plaintiffs and the father of defendant No.2 are brothers. It appears that disputes started between them over the property on account of their relationship. Defendant No.2 claims title and possession on the strength of Ex.B-1, the sale deed. Ex.B-1 refers agreement of sale in the year 1978, but such agreement has not been placed in evidence. This goes to show that the sale deed was brought in to deny the settled possession held by the plaintiffs over the suit property by taking assistance of defendant No.1, who had been supporting defendant No.2.
31. In this regard, it is relevant to refer to the decision of Apex Court in Rame Gowda (D) By Lrs. v. M.Varadappa Naidu (D) By Lrs.2, whereunder it was held that a dispossessor is entitled to bring his possession back unless he is duly evicted. In the present case, the plaintiffs are in settled possession for the long period even though their suit for specific performance is dismissed. When the relief of 2 2004-3 L.W.143 18 ML,J SA_420_2012 injunction is prayed independently and not a consequential relief, the plaintiffs are entitled for protection of his possession until he is duly evicted. Therefore, lower appellate Court erred in holding that the plaintiffs are not entitled for injunction solely on the ground that their relief of specific performance was denied and that there is no challenge from them in that regard. This finding has been rendered ignoring the fact that relief of injunction was prayed independently and not consequentially.
32. The requirement of Section 53-A of the Act is only to be established when the possession is protected on the strength of agreement of sale, and such a requirement need not be established when the relief of injunction is prayed independently and not consequential to the main relief of specific performance. For grant of injunction, while considering the independent relief, the main relief has no significance and it is the independent evidence which establishes the settled possession of the plaintiffs over the suit property, which entitles them to the relief of injunction. In the present case, the plaintiffs have placed sufficient independent evidence apart from Ex.A-1 to establish that 19 ML,J SA_420_2012 they have been in settled possession for the long time. Therefore, they need not even required to prove the requirement of Section 53-A of the Act to protect their possession. Accordingly, the substantial questions framed are answered in favour of the plaintiffs.
33. In the result, the Second Appeal is allowed; the judgment and decree dated 05.08.2011 in A.S.No.53 of 2007 on the file of the Court of the VI Additional District Judge (Fast Track Court) at Vikarabad, are set aside; and the injunction granted by the Court of the Junior Civil Judge, Vikarabad, Ranga Reddy District in O.S.No.40 of 1993, dated 26.07.2002, is restored. There shall be no order as costs. Miscellaneous petitions, if any, pending, shall stand closed.
________________ M.LAXMAN, J Date: 25.02.2022 TJMR