Andhra HC (Pre-Telangana)
Chennamsetty Rama Murthy vs Gattu Venkateswarlu And Anr. on 16 February, 2001
Equivalent citations: 2001(2)ALD383, 2001(2)ALT317
ORDER T. Ch. Surya Rao, J.
1. The revision petitioner assails the Order dated 29.06.2000 passed by the learned Senior Civil Judge, Addanki, in C.M.A.No.15 of 1997. He is the first respondent therein. The respondents 1 and 2 herein are the appellants therein.
2. It is expedient here to refer the parties as they were originally arrayed in the suit as well as the concomitant petition filed in I.A.No.70 of 1997 under Order 39, Rules 1 and 2 of the Civil Procedure Code. The facts lie in a narrow compass: The petitioner-plaintiff filed the suit for perpetual injunction restraining the respondents therein from interfering with his peaceful possession. The petitioner purchased the suit land more fully described in the schedule appended to the plaint under a Registered Sale Deed dated 10.07.1981 for a valuable consideration of Rs.15,000/- from the first respondent, who is the owner thereof. He claims to have been in possession of the same since the date of the purchase and has been raising crops thereon. He has been paying the land revenue payable over it to the Government. Out of the total consideration of Rs.15,000/- an amount of Rs.10,000/- was needed for discharging the debt owed by the first respondent to the Union Bank of India, Santharavuru Branch, which obtained a decree against the first respondent and filed E.P.No.8 of 1987 in O.S.No.306 of 1980 on the file of the Sub-Court, Chirala, in execution thereof. It is the further case of the petitioner that the first and third respondents admitted the title and possession of the petitioner in the said execution proceedings and the fact that he raised the Bengal gram crop on the suit land.
3. The first respondent resisted the petition by filing a detailed counter and the third respondent adopted the same by filing a memo. Their case was that the suit land was mortgaged to the Union Bank of India and that the Bank obtained a decree for realising the debt against the first respondent in O.S.No.306 of 1980. In the Execution Petition filed pursuant to the decree, a receiver had been appointed who took possession of the suit schedule property and auctioned the crop existing on the land. It is their further case that when the Bank also sought for the auction of the land for recovery of its debt the first respondent sold away the suit land in favour of the third respondent under an agreement of sale dated 22.07.1996 for a valuable consideration of Rs.60,000/- and the third respondent in turn discharged the debt due to the Bank and the land was delivered to him on the date of the agreement of sale itself. The first respondent denied of having executed the Registered Sale Deed dated 10.07.1981 in favour of the petitioner.
4. At the time of the enquiry, Exs.A.1 to A.7 were got marked on the side of the petitioner and Exs.B.1 to B.7 were got marked on the side of the contesting respondents.
5. The learned Principal District Munsif, Addanki, after considering the evidence on record and after having heard on either side, allowed that petition while holing that the petitioner established his prima facie case and balance of convenience was also in his favour. Inter alia in para 7 of his Order, the learned Principal District Munsif observed that even assuming on the basis of Exs.B.4 to B.7 that the first respondent is in possession and enjoyment of the suit schedule property in view of Ex.A.1, the possession of the first respondent was not lawful, according to law. However, the learned Principal District Munsif has come to a clear conclusion that in view of Ex.A.1 the petitioner has good title and the balance of convenience also is in his favour.
6. Having been aggrieved by the said Order, the contesting respondents carried the matter in appeal before the Senior Civil Judge, Addanki in C.M.A.No.15 of 1997. The learned Subordinate Judge, however, has upset the finding of the lower Court and allowed the appeal. The appellate Court has come to a conclusion that the documentary evidence under Ex.A.1 to A.7 does not disclose the possession of the respondents and while leaving the disputed documents in Exs.A.1 and B.1, Exs.B.4 to B.7-the certified copies of the cultivation accounts, show the name of the appellants from 1993 onwards upto 1996. More weight has been attached to Exs.B.4 to B.7 vis-a-vis Ex.A.3 cist receipt and ultimately the appellate Court has come to the conclusion that the possession was with the respondents.
7. Having been aggrieved by the said Order, as aforesaid, the present Civil Revision Petition has been filed.
8. While the petitioner claims title over the property under Ex.A.1-the Registered Sale Deed, the third respondent claims title over the same under Ex.B.2-the agreement of sale. It appears from the facts that under Ex.A.1 sale deed, out of the total consideration of Rs.15,000/- an amount of Rs.10,000/- was agreed to be paid to the Bank in discharge of the debt contracted by the vendor. In view of the default committed by the petitioner, the Bank seemed to have filed a suit, obtained a decree, and in execution thereof, got the crop existing over the suit land taken possession of by a receiver. It appears that even the land was taken possession by him. For the disobedience of the Orders of the Court, the Bank also seemed to have filed an application for prosecuting the petitioner as well as the respondents together. Ultimately, the third respondent is said to have discharged that debt. That is how, the third respondent claims title over the suit property.
9. The appellate Court has found fault with the trial Court in having placed reliance upon Ex.A.1, on the premise that it was a disputed document and such dispute of title could not have been gone into at an interlocutory application stage, refused to consider both Exs.A.1 and B.2 and proceeded only on the assumption that possession remains germane for consideration but not the title and after having considered Exs.B.4 to B.7 in preference to Exs.A.2 to A.7 ultimately reached the conclusion that the possession was with the third respondent. In having proceeded so, the appellate Court has itself fallen into error in refusing to consider Exs.A.1 and B.2. While quoting the Judgement of this Court, the appellate Court has mis-construed the same and proceeded on the assumption that the disputed questions of fact or difficult questions of law should be left to the final trial of the suit. If that were be the case, every document if disputed by either of the parties should be left untouched and that shall not be the approach of the Court. Oblivious of the fact that the Court at the interlocutory stage is expected to proceed on the face value of the documents unless a serious dispute exists in respect thereof as to the admissibility of the document or other serious questions of law. That does not mean that whenever a document is sought to be introduced by one party and the other party objects the reception of the same while disputing its execution that document should be left out of consideration. That very approach of the appellate Court itself vitiates the Order now being impugned.
10. Ex.A.1 is a Registered Sale Deed. Although, execution thereof has been denied by the first respondent the document cannot be left out of consideration totally. Similarly, Ex.B.2 which is an agreement of sale executed by the first respondent in favour of the third respondent cannot be left out of consideration on the mere ground that the petitioner disputes the same. The genuineness of the document is certainly a subject matter of consideration by the trial Court and no finding in respect thereof is expected of by the Court at an interlocutory stage. But, certainly the Court is expected to proceed on the face value of the document on a prima facie proof of execution of the same either by affidavit evidence or by any circumstantial evidence emanating from the record. I am sure that had the appellate Court considered both Exs.A.1 and B.2 the situation would have been otherwise.
11. It is now settled law that the vendor under a Registered Sale Deed, who has parted with his title and possession over the subject matter of the same, when the consideration under the document either in whole or in part has not been paid, has a charge over the very subject matter of the sale and can sue for recovery of the un paid sale price. The title which has been conveyed under the document cannot on that ground be defeated. Vide VIDHYADHAR vs. MANIKRAO1. When that be the clear legal position, the value of Ex.A.1 is got to be considered on its face value. Similarly, having regard to the fact that the first respondent executed a Registered Sale Deed in favour of the petitioner, can he legitimately convey the same property in favour of another would automatically crop up for consideration? The recitals in Ex.B.2 have not been considered and on the other hand they have been totally ignored. Both the respondents who are parties thereto are bound by the recitals in Ex. B2. Had they been considered, a different conclusion than what has been arrived by the appellate Court could have been reached? Therefore, the Order now being impugned in this Civil Revision Petition cannot be sustained on legal front.
12. Much weight has been given to Exs.B.4 to B.7, which are certified copies of the cultivation accounts whereunder the possession of the first respondent was shown. These documents, being certified copies of the public documents are certainly relevant under Section 35 of the Indian Evidence Act. No proof is required prima facie. But the value to be attached to the entries made therein certainly is altogether a different aspect. In VISHWA VIJAY BHARATI v. FAKHRUL HASSAN2 the Apex Court held thus:
"It is true the entries in the revenue record ought generally to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title."
13. Therefore, Exs.B.4 to B.7 are got to be considered in the light of the recitals made in Ex.B.2-agreement of sale. It is no doubt true that in the absence of such recitals as mentioned in Ex.B.2, the entries in Exs.B.4 to B.7 are entitled to due weight. The appellate Court, although it is said that at this stage the Court shall not embark upon an enquiry into the correctness or otherwise of the entries, shall not totally ignore the cogent and clear material available if any on record which berefts the efficacy of the entries made in Exs.B.4 to B.7. No separate proof is required in that regard.
It is now settled by a catena of decisions of the Apex Court that in matter at an interlocutory stage where an injunction has been sought for, the Court has to consider not only the prima facie case, the balance of convenience, irreparable loss if any that would result either way, and the other guidelines given by the Apex Court to be adverted by the Courts while dealing with those applications. In SULTAN-UL-ULOOM EDUCATION SOCIETY v. SRI MIR SHAHMAT ALI KHAN3 this Court quoted those judgements and the guidelines given by the Apex Court therein. Even while granting injunction or refusing to grant injunction, the Court is expected to impose conditions so as to subserve the ends of justice. Therefore, the Courts should have due regard to these principles enunciated by the Apex Court as well as this Court while disposing of the application filed under Order 39, Rule1 of the Code.
14. There shall be discussion of all the documents filed on either side including the third party's affidavit filed if any and no document shall be left out of consideration on one ground or the other, save and except when the document per se is not admissible.
15. In view of the foregoing reasons, the Order impugned against is unsustainable under law. Even the Order passed by the trial Court cannot for a moment be accepted and, therefore, it is expedient to remit back the matter for fresh consideration and to have a fresh look at the evidence adduced on either side and to pass appropriate Orders having due regard to the guidelines given in matter of this sort by the Apex Court as well as this Court. Undeterred and undaunted by the observations made by this Court in the Order supra, the trial Court is expected to proceed independently so as to arrive its own conclusions.
16. In the result, the Civil Revision Petition is allowed. The Court below should make every endeavour to dispose of the application within thirty days from the date of receipt of a copy of this Order.