Telangana High Court
Anjalamma,Ramulamma And Another vs Bala Kistaiahdied And 4 Others on 5 June, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
I.A. No.3 of 2018 in SA No.608 of 2018
and
SECOND APPEAL No.608 OF 2018
JUDGMENT:
This Second Appeal is filed by the appellants-defendants aggrieved by the judgment dated 04.01.2018 passed in A.S. No.6 of 2010 on the file of Senior Civil Judge, Narayanpet, Mahabubnagar District, confirming the judgment passed in O.S No.23 of 1998 dated 31.10.2010 on the file of Junior Civil Judge, Narayanpet, Mahabunagar District.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The respondents - plaintiff filed the suit for perpetual injunction claiming that the father of the plaintiffs, by name, Shivappa, was the owner, pattedar and possessor of the land in Sy. No.373 known as Singamma Mamidla Chelka situated at Kudurumalla village of Doulathabad Mandal. The father of the plaintiff died in the year 1988. One late Laxmappa was their common ancestor and he had six sons 0viz., Shivappa, Mahadevappa, 2 Dr.GRR,J AS No.608 of 2018 Shambappa, Shankarappa, Lingappa and Yellappa. Shivappa was the father of the plaintiffs. The other brothers Mahadeveppa, Shambappa, Shankarappa and Lingappa died. Yellappa, the youngest brother of Shivappa was only alive. Subsequent to the death of Laxmappa, his six sons lived jointly as members of a Hindu joint family. When all the brothers were in joint, they have purchased the suit land as early as in or about 1950 from the owners. The father of the plaintiffs was elder and Kartha of the family, as such, the sale was effected in the name of Shivappa. Since the date of purchase, the father of the plaintiffs as well as his brothers, were enjoying the possession and rights over the suit land. Subsequent to the death of Shivappa, his legal heirs along with Yellappa continued in joint possession. The name of the father of the plaintiffs was recorded as occupant and the nature of the possession was described as a purchaser and his name found place in column No.16 as cultivator in the certified copy of the khasra pahani of the year 1954-55. In the subsequent pahanies also, the name of the father of the plaintiffs was continued as pattedar in the revenue records and in the column meant for cultivation, the name of the plaintiffs and other sharers names were recorded.
3 Dr.GRR,J AS No.608 of 2018
4. The plaintiffs further submitted that the husband of defendant No.1 and father of defendants No.2 to 4 had filed a suit against the plaintiffs and one Shankarappa (died) and his son Venkataiah and Kishan Singh for partition and separate possession of the suit schedule properties, in the court of the Senior Civil Judge, Mahabubnagar, which was registered as O.S. No.4 of 1992. In the said suit, the suit land was shown as one of the items in 'A' schedule. The said suit was decreed ex parte on 05.10.1994 and a preliminary decree was passed. Against the said preliminary decree, the plaintiffs herein and others filed a petition for setting aside the ex parte decree. The said I.A. was registered as I.A. No.600 of 1994. During the pendency of the said I.A., it was reported by the counsel for the plaintiff therein, with regard to the death of the plaintiff therein. The matter was pending for taking steps to bring the legal representatives of the deceased plaintiff on record. Ultimately, the said I.A. was also dismissed for not taking steps. Thereafter, the plaintiffs filed another I.A. to restore I.A. No.600 of 1994 in O.S. No.4 of 1992. The said I.A. was registered as I.A. No.528 of 1996 and the same was pending before the Senior Civil Judge, Mahabubnagar.
4 Dr.GRR,J AS No.608 of 2018
5. The plaintiffs further submitted that the plaintiffs and the sharers were in actual possession and enjoyment over the suit land which was evident from the extracts of the certified copies of the pahanies. On 20.05.1998 when the plaintiffs were ploughing guntakas in the suit land, the defendants along with their associates came to the suit land and caused interference illegally. The plaintiffs with the assistance of their farm labourers got removed the obstructions. The reason for the interference was that the husband of the defendant No.1 and the father of defendants No.2 to 4 obtained preliminary decree in O.S No.4 of 1992. The plaintiffs submitted that no steps were taken for passing final decree in partition suit and the defendants were not put in possession of the suit land by the court. The possession of the plaintiffs and their sharers was admitted in the said suit. The defendants could not take law into their own hands in pursuance of the preliminary decree passed in the said suit. On 24.05.1998, the defendants again came with their associates and caused disturbance on the spot creating breach of peace. The plaintiffs with the assistance of the farm labourers resisted their obstruction. The defendants while leaving threatened to dispossess the plaintiffs from the suit land. As such, filed the suit.
5 Dr.GRR,J AS No.608 of 2018
6. The defendants No.1, 2 and 4 filed written statement contending that the suit land was the ancestral property of late Tuljaram i.e. husband of the defendant No.1 and his brother Kishan Singh. Late Tuljaram and Kishan Singh were joint owners and possessors of the suit land. Late Tuljaram used to work as a blacksmith in the village. Kishan Singh migrated to Bombay and was residing at Bombay. Kishan Singh was an educated person and literate whereas late Tuljaram was illiterate. Late Tuljaram was eking out his livelihood on blacksmith profession and on the produce received from the suit land. The defendants used to give the suit land on lease to various persons. One late Shivappa was a close friend of the then village patwari. Late Shivappa had got manipulated the records i.e. khasra pahanies and got entered his name as purchaser of the suit land. Late Tuljaram and Kishan Singh had never sold the suit land and never executed any sale deed in favour of late Shivappa. The plaintiffs with a malafide intention did not mention in the plaint, the names of the vendor, the sale consideration and date of execution of sale deed. The plaintiffs and their cousin brothers had colluded with Kishan Singh, from whom they cultivated the suit land as lessees and refused to pay the lease. Kishan Singh supported the plaintiffs. Late 6 Dr.GRR,J AS No.608 of 2018 Tuljaram filed a suit for partition vide O.S. No.4 of 1992 in the court of the then Subordinate Judge at Mahaboobnagar. Ultimately the suit filed by late Tuljaram had been decreed for partition to the extent of half share. On the intervention of relative of late Tuljaram and Kishan Singh, Kishan Singh had agreed to give up his share in favour of Tuljaram. Kishan Singh had given possession of the suit land to Tuljaram and the possession of the suit land was given to defendants No.1 to 4 for cultivation on account of the death of late Tuljaram. Defendants No.1 to 4 were cultivating the suit land as owners. The plaintiffs with a malafide intention and ulterior motive, filed the false suit on the basis of wrong entries in the revenue records. The other cousin brothers of the plaintiffs did not join in filing of the suit because they were fully aware of the fact of wrong entries in the revenue records and that there was no sale of the suit land in favour of late Shivappa. The revenue record i.e. khasra pahani and subsequent pahanies were not title deeds and would not create any right of ownership in the suit land. There was no document to show the transfer of ownership of title and possession of the suit land to the plaintiffs. At the most, the cultivation of the suit land by the plaintiffs and their cousin brothers was in the capacity of lessees. If the 7 Dr.GRR,J AS No.608 of 2018 plaintiffs had got any right in the property, they have to file a suit for declaration. The plaintiffs were not entitled to seek relief of perpetual injunction against the true owners of the suit land and prayed to dismiss the suit.
7. The suit was dismissed against the defendant No.3 on 17.07.1998 due to non-payment of process. The defendant No.5 remained ex parte on 18.06.1998.
8. Basing on the above pleadings, the following issues were settled for trial:
1. Whether the plaintiffs are entitled for perpetual injunction as prayed for?
2. To what relief?
9. PWs.1 to 7 were examined on behalf of the plaintiffs and Exs.A1 to A58 were marked on their behalf. On behalf of the defendants DWs.1 to 3 were examined and Exs.B1 to B27 were marked. Exs.C1 to C5 and Exs.C1(a) to C5(a) were marked through PW.5.
10. Considering the oral and documentary evidence on record, the trial court decreed the suit restraining the defendants 1, 2, 4 and 5, 8 Dr.GRR,J AS No.608 of 2018 their agents, henchmen etc., from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the suit land.
11. Aggrieved by the said judgment and decree dated 31.08.2010 in O.S. No.23 of 1998, the defendants preferred an appeal. The learned Senior Civil Judge, Narayanpet vide judgment in A.S. No.6 of 2010 dated 04.01.2018 dismissed the appeal confirming the judgment and decree of the court below in O.S. No.23 of 1998, dated 31.08.2010.
12. Aggrieved further, the defendants preferred this second appeal contending that admittedly, the suit land was the joint family property of the father of late Tuljaram and his younger brother Kishan Singh and the respondents - plaintiffs admitted that they purchased the suit land from Kishan Singh, in which case, assuming without admitting, the appellants would still be in joint possession of the suit land along with the respondents who would have half share herein. For partition and separate possession the appellants had already filed a suit in O.S. No.4 of 1992 which was pending in the same first appellate court, as such no injunction could be granted against them even if the respondents were found to be in possession of the entire 9 Dr.GRR,J AS No.608 of 2018 suit land. The only remedy for them was to file a suit for declaration of title and possession or suit for partition and separate possession. The respondents omitted to state the material facts in the plaint as to who were the actual previous owners of the suit land, the name of the vendor or vendors, the date of purchase, consideration, whether the sale was oral or in writing with an ulterior object of forging and fabricating evidence during the trial of the suit. The respondents had surreptitiously introduced Ex.A1, conditional sale deed alleged to have been executed by the paternal uncle of the appellants Kishan Singh only, but containing alleged thumb impressions of Tuljaram also on 16.03.2005 along with the chief affidavit of PW.1 through the list of documents to be marked there under, instead of following the procedure under Order VII Rule 14 of CPC resulting in serious prejudice to the appellants in not taking an objection towards its admissibility in evidence. After filing Ex.A1 before the trial court, the respondents took out the said document from its record for impounding and reintroduced it back into the records of the trial court after such impounding on 24.06.2006 without any orders or permission of the trial court at their whims and fancies, due to the political and economical clout of PW.3, who had provoked the 10 Dr.GRR,J AS No.608 of 2018 respondents to regain possession intending to purchase the same and had entered into a oral agreement and now purchased it through an unregistered sale deed dated 04.04.2005. The respondents mislead the trial court by forging and fabricating Exs.A23 and A24 uncertified copies of pahanies for the years 1995-96 and 1996-97 by influencing the V.A.O. (PW.6) and filed them along with suit in order to obtain ad injunction and to evict the appellants. The respondents obtained certified copies of Exs.A2 to A22 from the Tahsil Office on the same day i.e. 01.04.1998 on which date they obtained Exs.A23 and A24 from the V.A.O., although the originals of these pahanies were available in Tahsil Office by that date. The respondents even forged and fabricated Exs.A25 to A51 land revenue receipts which were shown to have been forged and fabricated by bringing out that A25 to A33 and A45 were on plain piece of papers which could be obtained at any time. Exs.A33, 34, 36 to 40, 42 and 43 were either torn or erased. In Ex.A41 printing date on the top right corner was found as 15.3.1978 while the issue date of the receipt was 6.1.1976 which was impossible even to correlate it to the date of order of the concerned authority for printing. A careful perusal of Exs.A46 to A51 would reveal that the left over printed forms were used for the purpose since 11 Dr.GRR,J AS No.608 of 2018 Ex.A40 printed in 1976-77 was used to issue receipt for payment of land revenue due on 1.8.1980. Ex. A44 printed during 1976-77 was used to issue receipt for the year 1981-82 on 28.12.1989 while Ex. A50 printed in 1989-90 was used to issue the receipt for the year 1992.
12.1. The appellants submitted that the tampering of the pahanies marked as Exs.C1 to C5 and C1(a) to C5(a) were shown to have been carried out at the instance of the respondents by the evidence of PW5 - Deputy Tahasildar and the evidence in cross examination of PW6 - Ex.V.A.O. between 19.1.2007 to 11.7.2007. While the appellants had filed certified copies of pahanies for the years 1996-1997 to 2003-04 on 2.1.2006, the respondents filed them before the trial court by 3.4.2007 and this was done by using the political and economical clout of PW3 with a view to prevent the appellants from using the genuine certified copies of pahanies though their possession was recorded in the pahanies also. The trial court failed to even notice that while disposing of the ad interim injunction petition, it was categorically observed that Exs.A23 and A24 could not be looked into for having not been attested by the Tahsildar and on 12 Dr.GRR,J AS No.608 of 2018 that ground alone the petition was dismissed. Inspite of the same, the respondents did not even attempt to apply to the Tahsildar and obtain and file the certified copies of 6 pahanies into Court at any subsequent stage of the suit. The respondents who were guilty of suppression, forgery, fabrication and tampering of public records were not entitled to come to court seeking equitable remedy of injunction and both the courts below committed a patent error in law in not whispering a word about the conduct of the respondents. Though the trial court found that Ex.A1 sale deed was not proved, it erred in not considering further as to whether it was forged and fabricated. The trial court erred in not considering the case of the appellants that the uncle of the appellants, after the death of their father had orally relinquished his half share in the suit land in favour of the appellants and put them in possession of the entire suit land. During April, 1996 and ever since then, they had been in continuous possession of the suit land to the knowledge of the respondents which was substantiated by the evidence of DWs.2 and 3 and supported by Exs.B11 to B19 pahanies.
12.2. The appellants further submitted that the first appellate court failed to consider the question of title even incidentally which 13 Dr.GRR,J AS No.608 of 2018 was necessary when the suit was for bare injunction based on title and dismissed the appeal without considering the written arguments and the case laws cited by them by specifying the paragraphs of the precedents. The first appellate court had not considered whether there could be an injunction against a true owner, a coparcener, whether the suit for bare injunction was maintainable when title was denied and what would be its effect on the pending partition suit, although such questions were raised and canvassed in detail across the bar.
12.3. They further contended that the first appellate court vide order dated 12.11.2015 in I.A. No.576 of 2015 allowed the application and received the order dated 15.06.2016 in C.R.P.No.1124 of 2016 but was reluctant to follow the procedure as directed by this Court which would amount to disobedience to lawful orders. The first appellate court did not dispose of the said application, although important documents to show that the father of the appellants never used to subscribe his thumb impression and he was always signing the papers and their up to date uninterrupted possession. The first appellant court did not dispose of the said application either prior to disposal of the suit if the documents were to be received in evidence or during the 14 Dr.GRR,J AS No.608 of 2018 course of judgment if the application were to be rejected and strangely observed in the judgment that none of the parties had adduced any additional evidence. The first appellate court hastened to dispose of the appeal without disposing of the crucial interlocutory application which had seriously prejudiced the appellants and prayed to allow the appeal.
13. On hearing the learned counsel for the appellants and the learned counsel for the respondents, the following substantial questions of law were formulated:
(i) Whether the suit for bare injunction itself is unsustainable from the dispute by the defendants of the title and possession of the plaintiffs in question rather relegating to file a suit for declaration with consequential relief and if so, the decree and judgment of the trial Court granting permanent prohibitory injunction is unsustainable, equally in confirmation of the same by the lower appellate Court and whether the same is outcome of ill-appreciation of facts and law and liable to be set aside?
(ii) Whether the lower appellate Court was right despite direction of the High Court in C.R.P.No.1124 of 2016 setting aside its order in I.A.No.576 of 2015 from the additional evidence application of the defendants/appellants allowed, while setting aside in revision in relegating the matter to lower appellate Court to decide by hearing the 15 Dr.GRR,J AS No.608 of 2018 application afresh while hearing final arguments in the appeal, in disposal of the appeal without disposal of the additional evidence application and that too without following the procedure for any additional evidence to be taken as contemplated by Order XLI Rules 25 to 28 CPC read with 107 CPC, by either remanding the matter to the lower Court or recording such additional evidence if at all by allowing the petition by it or remitting to the limited extent to the lower Court to record such additional evidence and send back the file for disposal of the appeal, if not to dismiss the said additional evidence application?
(iii) Whether the concurrent findings of the Courts below as referred supra are devoid of merits, perverse, unsustainable and liable to be set aside? and
(iv) To what result?
14. Heard learned counsel for the appellants and the learned counsel for the respondents on the above substantial questions of law.
15. Substantial Question of Law No.(i):
As the substantial question of law framed was as to whether a suit for bare injunction was sustainable without seeking the relief of declaration and consequential reliefs and whether the same was an outcome of ill-appreciation of facts and law by the trial court as well
16 Dr.GRR,J AS No.608 of 2018 as the lower appellate court, it is considered necessary to appreciate the evidence on record.
16. The plaintiffs contended that their elders of the joint family purchased the suit land in Sy. No.373 admeasuring Acs.12.12 gts., situated at Kudurumalla village, Doulathabad Mandal in the name of their elder member and Kartha Shivappa as early as in the year 1950 from its owner and ever since then they have been in joint possession of the same and the fact of the said purchase was implemented in khasra pahani for the year 1954-55 and since then continued to be carried on in the revenue records.
17. As seen from the above pleadings, the plaintiffs had not specifically stated as to who were the owners, who sold them, their interest in the said land whether the property was self acquired, joint or partitioned, for what consideration they sold it, the date on which such sale was effected, whether there were any witnesses to the said sale, whether the sale was oral or in writing and if it was in writing, where was the document of sale, whether it was through a registered or unregistered document, what was their relationship with the owners on the date of sale. The plaintiffs seeking injunction appeals to an 17 Dr.GRR,J AS No.608 of 2018 equity court to exercise its discretion in granting such injunction and as such, would need to give the detailed particulars of such sale and purchase and also enclose a copy of the title deed to the plaint or explain its non-availability at the relevant time by assigning cogent and convicting reasons which was conspicuously absent. Any attempt to fill this gap would be against the pleaded facts which could not be permitted but also not looked into or considered without necessary amendments to the plaint.
18. The defendants No.1, 2 and 4 inter alia contended that the husband of the defendant No.1 and the father of defendants No.2 to 4 Tuljaram and his younger brother Kishan Singh were joint owners in possession of the suit land and after the death of Tuljaram, the defendants No.1 to 5 inherited the share of Tuljaram. The suit land was their ancestral property, either Tuljaram or Kishan Singh have never sold the suit land to the father of the plaintiff Shivappa nor executed any sale deed in his favour at any time. Kishan Singh being educated shifted to Bombay for weaving business and settled down there and leased out the land to other people, the father of plaintiffs Shivappa was one of such lessees and he in connivance with the then 18 Dr.GRR,J AS No.608 of 2018 Patwari had illegally got his name entered in the pattedar column of khasra pahani about which they had no knowledge. The possession of the said Shivappa if any was in the capacity of a lessee but not that of a owner. The said Shivippa manipulated the revenue records in collusion with the village Patwari.
19. No rejoinder was filed by the plaintiffs to dispute the said contentions. They had not filed the sale deed or it's photostat copy along with the plaint. The learned counsel for the appellants contended that the said sale deed was filed along with the chief affidavit of PW.1 through the list of documents to be marked thereunder without following the procedure under Order VII Rule 14 of CPC and relied upon the judgments of the High Court of Delhi in Gold Rock World Trade Ltd.v. Veejay Lakshmi Engineering Works Ltd.1, Polyglot Limited v. A.N. Goenka & Ors.2, wherein it was held that:
"Order VII Rule 14 (1) provides that: "Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint".1
2007 LawSuit (Del) 915 2 2016 LawSuit (Del) 2397 19 Dr.GRR,J AS No.608 of 2018 Sub-rule (2) of Order VII Rule 14 provides that:
"Where any such documents not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is."
Thus, when the suit was filed, the plaintiff was obliged to produce all documents which it sought to rely upon in its power and possession."
Order VII Rule 14 (3) CPC provides that:
"A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit".
...A plain reading of Order VII Rule 14 (3) CPC makes it clear that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. The learned counsel for the plaintiff submits that leave of the Court ought to be granted to the plaintiff for producing the additional documents referred to in the application under Order 7 Rule 14 and as also for calling the witness for producing the documents mentioned in the other application. The Court may permit leading of such evidence even at a later stage subject to any terms that may be imposed upon by the Court which may be just and proper."
20. As per the decision of the Hon'ble Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India3, wherein it was held that:
3
(2005) 6 SCC 344 20 Dr.GRR,J AS No.608 of 2018 "It has been clarified that on deletion of Order 18 Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment i.e. 1-7-2002, would stand restored.
The Rule was deleted by Amendment Act of 2002.
Even before insertion of Order 18 Rule 17-A, the court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order 18 Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order 18 Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the court may permit leading of such evidence at a later stage on such terms as may appear to be just.
Thus, the Supreme Court held that the insertion of Rule 17-A was only clarificatory of the in-built power of the Court to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence."
21. He also relied upon the judgments of the High Court of A.P. at Amaravathi in Majji Atchutarama Gandhi v. Chittumuri Savithri4, of a Division Bench of the High Court for the State of Telangana in Expert Industries Private Limited v. Moldtek Packaging Limited5 and of High Court of A.P. in Ravi Satish v. 4 2022 LawSuit (AP) 254 5 2022 LawSuit (TS) 376 21 Dr.GRR,J AS No.608 of 2018 Edala Durga Prasad6 where while considering the provision of Order VIII Rule 1 - A(3) CPC, it was held that:
" Sub-rule (3) of Rule 1.A. of Order 8 permits the documents to be received only on leave being granted by the Court. Grant of leave is not for the mere asking, nor is the Court a mere Post-Office to receive documents even in the absence of any reasons being furnished for failure to file the said documents along with the written statement. Admittedly, in the case on hand, no reasons whatsoever have been furnished by the petitioner, let alone adequate cause been shown as to why the documents, which were the subject matter of the application, could not be filed earlier along with the written statement. Having chosen not to give any reasons, it is not open to the petitioner to contend that the Court below should have received the documents, since the petitioner's right could be adversely affected for failure on its part to receive the documents. While it is no doubt true that admissibility and proof of documents are matters which ought not to be gone into at the time of receipt of documents, the fact, however, remains that the leave sought for can only be granted on adequate reasons being furnished justifying failure on the part of the applicant in not filing the documents along with the written statement earlier."
22. In the present case, the plaintiffs had not filed any petition under Order VII Rule 14 of CPC for filing the documents, which were not filed along with the plaint. As such, no opportunity was given to the defendants for taking any objection towards admissibility of the 6 2009 LawSuit (AP) 916 22 Dr.GRR,J AS No.608 of 2018 said documents in evidence which resulted in serious prejudice to them.
23. Learned counsel for the appellants-defendants raised several objections as to the plaintiffs not following the procedure for impounding Ex.A1. They contended that the respondents-plaintiffs took out the said document from the said record and reintroduced back into the record after impounding. They also contended that the documents marked under Exs.A25 to A51 land revenue receipts were forged and fabricated and pointed out several discrepancies in the said documents. Thus, a serious prejudice is caused to the defendants in not following the procedure by the trial court under Order VII Rule 14 of CPC.
24. The plaintiff No.1 was examined as PW.1. In his cross- examination he admitted that the land in Sy. No.373 pertain to the family of late Tuljaram and his brother Kishan Singh. He also admitted that he did not file the sale deed before the court of Senior Civil Judge, Mahaboobnagar and not mentioned about it in his written statement in O.S. No.4 of 1992 and that he had also not stated the sale consideration, date and year when he purchased the land. He also 23 Dr.GRR,J AS No.608 of 2018 admitted that he had not stated the said facts in his plaint in the present case. He stated that the suit land was sold by late Tuljaram and his brother Kishan Singh to his father and admitted that the name of Tuljaram was not found in Ex.A1. PW.1 stated that Kishan Singh, who got his share under partition, sold his share to his father. He admitted that late Tuljaram was the elder of the family and he was the person looking after the entire family affairs. He also admitted that when his father purchased the suit land under Ex.A1, he did not give any lawyer notice asking them to register the land in the name of his father. The witness added that his father's name was recorded in the revenue records i.e. Khasra pahani as such they did not give notice to the original owners as the land was already mutated in the name of his father. He also admitted that on the basis of Ex.A1 document only they got mutated the land in the name of their father. He also admitted that he did not file Ex.A1 before any authorities but his father filed and got it mutated. He stated that he was not aware of any proceedings issued by the Revenue authorities about the mutation of the land. He stated that Ex.A1 was misplaced and it was later traced and filed before the court and he did not mention the said fact anywhere before Mahaboobnagar court nor the Senior Civil Judge 24 Dr.GRR,J AS No.608 of 2018 court, Narayanpet. He also admitted that in Sy.No.373, there were protected tenants.
25. On a perusal of Ex.A1 sale deed, it is noticed that the same was written on a plain paper. The said sale deed appeared to have been executed only by Kishan Singh and used a singular language but in the neat copy, the singular expression 'na' was converted to 'maa'. Ex.A1 also refers to sale of Acs.11.30 gts. only of suit Survey No.373 as against its total extent of Acs.12.12 gts., as found in the khasra pahani marked under Ex.A2. Use of singular language appears to be in view of mention in the sale deed about the words 'my share' by the alleged vendor Kishan Singh which would probabilise the partition between Tuljaram and Kishan Singh and that of marginal balance of only Ac.0.2 gts., of land left to Tuljaram. It mentioned the consideration of Rs.1,500/- as paid and received and would recite that the purchaser was kept in possession. It provided that if any objection was raised with regard to the said sale, the vendor would pay back double the amount of consideration i.e. Rs.3,000/- and would take back the sold land. It purported to bear the thumb impressions of both Kishan Singh and Tuljaram although Tuljaram 25 Dr.GRR,J AS No.608 of 2018 was not the vendor. It purported to bear the signature of the scribe on the left hand margin and five witnesses below the document. A perusal of the said document would disclose that it was not an absolute sale and it was a conditional sale which would become void if any objection was raised. Being an unregistered document, it would not convey any title to the plaintiffs as held by the Hon'ble Apex court in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr.7 wherein it was held that, any unregistered document cannot be looked into by the court and be relied upon or taken into evidence in view of Section 17(1A) read with Section 49 of the Registration Act. The benefit of Section 53A could be given if and only if the alleged Agreement to Sell cum receipt satisfies the provisions of Section 17(1A) of the Registration Act.
26. With regard to Ex.A2 Khasra pahani for the year 1954-55, the entries therein are recorded as follows:
Name of Name of Nature of Other rights and Name of pattedar or khabizdar possession liabilities Actual invader with father's cultivator name 8 13 14 15 18 Tuljaram S/o Devarakonda Khareeddar Rakshita kowlu darulu Devarakonda Bhavani Shivappa Bondela Mangali Bassappa- Shivappa Singh Krishnappa, S/o. Ac.2.00 and Kondagalla Bogappa nundi Nagappa Ac.4.35 undi Rs.1500/- Devarkonda Shivappa 7 (2012) 1 SCC 656 26 Dr.GRR,J AS No.608 of 2018 rupayaku S/o. Laxamappa konabadnadi purchased the entire land and is in possession.
27. The sale deed was only for Acs.11.30 gts., of suit survey No.373, but the entries in Column No.14 of Ex.A2 would disclose the nature of possession as that of purchaser and that the same was purchased from Bondela Kishanappa for Rs.1500/-. Column No.15 would disclose that there were protected tenants Mangali Basappa for Acs.2.00 gts., and Kondagalla Nagappa for Acs.4.35 gts., and Devarakonda Shivappa purchased the entire (salem) land and had been in possession. If the sale deed was for only Acs.11.30 gts., and that too, only pertaining to the share of the vendor Kishnappa, the entries in khasra pahani would disclose that Shivappa purchased the entire land from Kishnappa only. The plaintiffs had not impleaded Kishan Singh as a party nor requested the trial court to obtain his thumb impressions and sent the document for comparison to an expert. The discrepancies in Khasra marked as Ex.A2 and the sale deed marked as Ex.A1 pointed out above were not explained by the plaintiffs.
28. Column No.8 of the khasra Pahani would disclose the name of Tuljaram as pattader of suit survey No.373 totally
27 Dr.GRR,J AS No.608 of 2018 admeasuring Acs.12.12 gts. But the subsequent pahani would disclose the name of Shivappa recorded as pattedar and possessor without mention of any mutation proceedings which was necessary to be mentioned as per the Rules.
29. Learned counsel for the appellants contended that the entries in revenue records were not proof of title and relied upon the judgments of the High Court of A.P. in Yeluri Vijayabharathi and Ors. v. Manikyamma And Ors.8 and of the Hon'ble Apex Court in Swarni v. Inder Kumar9, wherein it was held that:
"Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question."
30. He also relied upon the judgment of the High Court of A.P. in B. Laxminarayana and others v. P. Rajeev10, wherein it was held that:
"The presumption under the records of rights Act would operate only when true facts are not known and original ownership cannot be traced. An entry in Khasra Pahani by itself cannot create or defeat a known title established under general law of the Country. An entry in the Khasra Pahani no doubt 8 1998 (2) ALT 623 9 1996 (6) SCC 22 10 1981 (2) APLJ (NRC) 65 28 Dr.GRR,J AS No.608 of 2018 permits the raising of the presumption in favour of its truthfulness. But, the fact of such presumption cannot have legal effect to defeat an admitted right known to exist under the general law of presumption is part of an adjective. It neither creates nor destroys substantive rights. It does not displace law of property."
31. Learned counsel for the appellant also relied upon the judgment of the Hon'ble Apex Court in Balwant Singh & Anr. etc v. Daulat Singh (Dead) By L.Rs. &Ors.11 and Union of India & Ors. v. Vasavi Co-Op. Housing Society12, on the principle that revenue or khasra entries are not proof of title.
32. PW.2 was examined to prove that he was present at the time of executing Ex.A1 sale deed and to identify the signature of his father (Chandrappa) who signed as a witness to the said document. He admitted that at the time of scribing of Ex.A1, he was aged 10 or 11 years. PW.2 was alleged to have studied upto 10th standard and elected as MPTC of the area and Sarpanch of Kudurumalla village. He spoke about execution of Ex.A1 sale deed, consideration therefore, date of execution, its incorporation in khasra pahani, the family of plaintiffs being joint and the pedigree with precision and the persons 11 1997 (7) SCC 137 12 AIR 2014 SC 937 29 Dr.GRR,J AS No.608 of 2018 who had been in actual possession of the suit land at the relevant points of time and the cause of action on both occasions, although he had no land adjoining the suit land and sold away all his lands in the village by the year 1996 itself. He was admittedly aged about 65 years as on the date of his deposition on 08.04.2007. By taking the year of birth as 1943 as claimed by him, his age would not be more than 9 years as on the date of transaction of sale during May 1952. As such, the trial court also rightly not believed the evidence of this witness that he was present at the time when the sale transaction covered under Ex.A1 took place. He stated that Mantha Mallappa died about 40 years back. Thouguta Narasappa died about 38 years back. Ganthali Siddaramappa died 40 years back. Koredi Veeranna died about 30 years back. He also stated that he even searched the account books of one late Shahukar Ayyappa to find out the signature of his father as a witness in the loan transaction to prove Ex.A1. He asked the son of Ayyappa to tear the said leaf and hand it over to him for the purpose of the case and produced the said document in support of the case of the plaintiffs, which was marked as Ex.A54. He admits that he did not have any paper signed by his father in his custody, but obtained the same from one Mr. Mallikarjun, son of Shahukar 30 Dr.GRR,J AS No.608 of 2018 Ayyappa. He appears to be a highly interested witness. As such, no reliance can be placed upon his evidence or upon Ex.A54 document.
33. PW.3 was the cousin of the plaintiffs. The claim of the plaintiffs was that the suit land was in joint possession along with their agnates which would include this witness also. As such, it was natural for this witness to support the case of the plaintiffs. He was also one of the defendant in O.S No.4 of 1992.
34. PW.4 was also examined to prove the sale and purchase transaction under Ex.A1, possession of the plaintiffs thereon and interference by the defendants. He claimed to be the joint owner along with his two brothers in Sy.No.374 which abuts the suit land on its east. In his cross examination, he admits that his elder brother being Kartha of the joint family and his other brother also attends to the agriculture works, the said land was recorded in the name of his elder brother. He stated that he was a retired teacher and never worked in Kudurumalla village. He worked for 38 years at Hyderabad only. In the absence of any explanation for not examining his brothers, who were competent witnesses examining him in preference to his brothers makes his evidence suspicious.
31 Dr.GRR,J AS No.608 of 2018
35. PW.5 was the Deputy Tahsildar and incharge of Records Section of the Tahsil office of Doulathabad. He stated that in Ex.C1 adangal pahani for the year 1996-97 at column Nos.13, 14 and 15 against Sy. No.373, a plain chit was affixed by mentioning the names of Hanumanthu and Ramulamma (defendant Nos.4 and 2) and there were no chits affixed in any other survey numbers of Ex.C1 book except at Sy.No.373. He also admitted that there was change of hand writing in ink in Ex.C1(a) and during his period he had not received any order from any higher authority for rectification of the said entries. Likewise, he also admitted that the adangal pahani for the years 1997-98 and 1999-2000 and for the years 2003-2004 and 2004-05 chits were affixed at column No.13 against Sy.No.373 by mentioning the names of Ananthamma (defendant No.1) and Hanmansingh and they were in different hand writings and ink. He received applications from the plaintiffs for certified copies of Exs.C1 to C5 for which he gave an endorsement that there was no possibility of furnishing the copies as the said records were tampered. He stated that he was not aware whether all the false entries have been made by the VAO to help the defendants by removing plaintiffs name and affixed chits illegally. In his cross examination, he stated that the certified copies should be signed under 32 Dr.GRR,J AS No.608 of 2018 the signature of the Deputy Tahsildar and they would sign the certified copies after verifying the originals. No memo was issued to the record keeper about the corrections. He admitted that he issued certified copies to the defendants under his signatures for the years 1996-97, 1997-98, 1999-2000, 2001-02 and 2003-04. One pahani for the year 2000-01 was issued by the Tahsildar. He stated that when he issued the certified copies of pahanies, there was no tampering of records. By seeing the originals, he issued the certified copies. The names of the defendants was recorded in the certified copies of the above pahanies. He stated that he found the tampering of the pahanies only when the plaintiffs made the application on 07.11.2007.
36. The retired VAO of Kudurumalla village, by name, Hanumanth Rao, was examined as PW.6. He stated that he worked as VAO of Kudurumalla village from 1992 to 2000 during which year he retired from service. He admitted that Exs.C1 and C2 were written by him in his own hand writing and that except at Sy.No.373, he had not affixed slips anywhere in Exs.C1(a) and C2(a). He admitted that he himself affixed the slips on relevant columns and initialled it. He also admitted that there was difference of ink in Exs.C1(a) and C2(a). He 33 Dr.GRR,J AS No.608 of 2018 admitted that before affixing slips, there were names of other persons. The defendant's father expired four or five years back. After the death of the father of Ramulamma, he mentioned the names of Hanumanthu and Ramulamma, who were Lrs. of Tuljaram. He had not received any orders from the Tahsildar to enter the names of Hanumanthu and Ramulamma. He himself affixed the chits. He stated that the original pattedar of the land in Sy.No.373 was the father of the plaintiffs, by name, Shivappa S/o.Laxmaiah Deverakonda. The plaintiffs cultivated the suit land during his tenure i.e. 1992-2000. He admitted that he himself struck the name of the father of the plaintiff in Exs.C3(a), C4(a) and C5(a). He affixed all the chits on Exs.C1(a) to C5(a) in his house at Kudurumalla after his retirement in the year 2000 and submitted the records to the record room of MRO, Doulathabad. He admitted that earlier to affixing the chits by him, the plaintiffs names were recorded in the above columns.
37. In his cross-examination, PW.6 stated that after field inspection, he would write the names of the cultivators in the pahanies column. After his taking charge of Patwarigiri, for two years the plaintiffs cultivated the land, subsequently, the defendants cultivated 34 Dr.GRR,J AS No.608 of 2018 the suit lands till his retirement. The same was contrary to the evidence in his chief examination wherein he stated that the plaintiffs cultivated the suit land during his tenure from 1992 to 2000. He stated that as per the field inspection report, he mentioned the names of the defendants from 1996-97 to 2000 in cultivation column. He stated that he issued the certified copies of the pahanies marked as Exs.B8 to B10 for the years 1997-98, 1998-99 and 1999-2000 and the names of the cultivators shown by him were correct in the said documents. For the above years, the defendants cultivated the suit land as per his field inspection. He stated that after his retirement, he tampered all the above records. The Village Secretary gave the records for correcting the same. He also admitted that after retirement, touching the official records was an offence. After tampering the records, he handed over the records to the Village Secretary, by name, Hanumanthu R/o. Kotakonda Village. He admitted that knowingly he made correction in the records after his retirement with the collusion of Hanmanthu, Village Secretary. He stated that as per his knowledge, the defendants were cultivating the suit land and the plaintiffs were not in possession of the suit land.
35 Dr.GRR,J AS No.608 of 2018
38. He admitted that as per the entries in column No.13 of Ex.A24, the name of Shankarappa was mentioned as cultivator by him. Actually he was not cultivating the suit land but at the request of the plaintiffs he gave a copy. Thus, this witness shamelessly admitted that he tampered the originals of the pahanies Exs.C1(a) to C5(a) incorporating the names of defendants by striking out the name of the father of the plaintiffs and again stated that he issued Exs.A24 to the plaintiffs though they had not cultivated the said land. Thus, this witness appeared to be not a reliable or trustworthy person as he appeared to have made entries or tampered the entries as per the request of the parties whoever approached him. Thus, the courts below ought not to have believed the evidence of such witness. But, the trial court relied upon the evidence of this witness and relied upon Exs.A23 and A24 observing that they supported the plaintiffs' case and considered that the plaintiffs were in possession of the property by the date of filing the suit for the years 1996-97 and 1997-98.
39. Exs.A23 and A24 were issued by the VAO without attestation by the Tahsildar as required under Rule 25(4) of the ROR 36 Dr.GRR,J AS No.608 of 2018 (Pattedar Passbooks Rules) 1989 and Sections 76, 77 and 79 of the Evidence Act.
40. As per Rule 25 of the ROR Rules:
25. (1) The fees payable for granting certified copies or certified extracts from the record of rights shall be as follows:-
(1) Fees for every copy of the extract given for a survey or sub-division Rs.2/- (Rupees two only).
(2) The fees referred to in sub-rule (1) above, shall be in the shape of Court-fee stamp.
(3) Every application for copies/extracts shall be made to the Village Assistant/Mandal Revenue Officer.
(4) Every copy or extract from the Record of Rights shall be attested by the Mandal Revenue Officer.
41. Sections 76, 77 and 79 of the Indian Evidence Act reads as under:
"76. Certified copies of public documents:-Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation:- Any officer who, by the ordinary course of official duty, is authorized to deliver such 37 Dr.GRR,J AS No.608 of 2018 copies, shall be deemed to have the custody of such documents within the meaning of this section.
77. Proof of documents by production of certified copies:- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
79. Presumption as to genuineness of certified copies:- The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."
42. Exs.A23 and 24 were not attested by the MRO as required under Rule 25(4) of ROR (Pattedar Passbooks Rules) 1989. The learned counsel for the appellants relied upon a Three Judge Bench judgment of the Hon'ble Apex Court in Bhinka v. Charan Singh13, wherein after extracting Section 79 of the Indian Evidence Act, it was held that:
13
AIR 1959 SC 960 38 Dr.GRR,J AS No.608 of 2018 "Under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the, certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. Section 4 of the Evidence Act indicates the limits of such a presumption. The relevant part of that section reads:
" Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved ".
To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the Court raises a rebuttable presumption in regard to its genuineness. The khatauni of 1355 fasli with which we are concerned, gives the relevant details and purports to have been signed by Ahmed Ali, the patwari of the village. It cannot be disputed that the patwari was an officer appointed by the State Government and that he was authorized to issue certified copies of the record of rights. The U. P. Land Records Manual gives the rules prescribing the form and the manner in which a certified copy of the record of rights should be issued. Paragraph 26 of the Manual confers upon him the power to give to the applicants certified copies from his record; and tinder cl. (d) of the said paragraph he should enter in his diary a note of such extracts. He should also note the amount of fee realised by him in the diary as well as on the extract. In this case neither the diary was produced to prove that the procedure prescribed was followed nor the extract to disclose that the officer made any note of payment. It cannot, therefore, be said that the certified copy was issued by the patwari in substantial compliance with the provisions of law governing such issue. If so, it follows that the Court is not bound to draw the presumption in regard to its genuineness."
39 Dr.GRR,J AS No.608 of 2018
43. As per the ratio of the above judgment, as Exs.A23 and A24 are not issued as per the law and Rules, no inference of correctness of entries can be drawn. The learned counsel for the appellant contended that if any inadmissible document was marked in evidence without any objection by the opposite party, it could still be agitated in the appellate courts and relied upon the judgments of the High Court of A.P. in M/s. Srinivasa Builders v. A. Janga Reddy14, Buggavarapu Narasimhulu v. Sriram Ramanaiah15 and Akula Sangappa v. Banam Siddappa16.
44. It is trite to note that the trial court while making an enquiry in I.A .No.86 of 1998 for ad-interim injunction, vide its order dated 09.07.1999 had not relied upon the said documents as they were not attested by the Tahsildar. The plaintiffs could have obtained certified copies of the pahanies from Tahsil office before the trial itself. But, the plaintiffs had not obtained the certified copies till 11.07.2007. They have filed an application for issue of certified copies of pahanies from 1996-97 to 2004-05 on 11.07.2007 and obtained the certified copy of the endorsement of Tahsildar marked as Ex.A55. 14 2016 (3) ALD 343 15 2014 (1) ALT 577 16 2016 (1) ALT 368 40 Dr.GRR,J AS No.608 of 2018
45. The learned counsel for the appellants contended that the appellants-defendants were in possession of the suit land from 1996- 97 onwards till date and the plaintiffs had not questioned the entries in the pahanies which would prove that they were out of possession of the suit land and relied upon the judgment of the Hon'ble Apex Court in Raja Durga Singh of Solan v. Tholu17 on the aspect that in case of conflict of entries in the revenue records, it was the later entries that would prevail. The learned counsel for the appellants contended that the suit was filed by the plaintiffs two years after being out of possession of the suit land as such, the suit for bare injunction is not maintainable.
46. PW.7 was the plaintiff No.2 in the suit. He was examined to file the copy of the order dated 30.12.1988 passed by the MRO, Doulathabad marked as Ex.A58. There was no cross-examination on this witness.
47. Defendant No.2 was examined as DW.1. She stated that the possession of late Shivappa and his family members was permissive one. By the date of filing the suit or prior to filing of the 17 AIR 1963 SC 361 41 Dr.GRR,J AS No.608 of 2018 suit neither the plaintiff No.1 nor the family members of plaintiff No.1 were in possession and cultivation of land. The plaintiff filed this suit on 28.05.1998 for partition. After compromise with Kishan Singh, the possession of the suit land was given to them by the cultivators in 1996. Her mother and herself were in possession and cultivation of the suit land. The father of the plaintiffs manipulated the revenue records. Since a preliminary decree was passed between late Tuljaram and Kishan Singh, the plaintiffs had no iota of interest and rights in the suit land. The plaintiffs were strangers to the suit land. Pending restoration petition, late Tuljaram and one of the defendants Shankarappa died. She stated that the plaintiffs forged and fabricated the pahanies in collusion with the then Village Secretary and the staff of the Mandal Office and without any right filed the suit for partition against the true owners. Exs.B11 to B25 were marked through her.
48. In her cross-examination, she admitted that they had not filed any appeal against the entries in Ex.A2 khasra pahani and none of the court officials visited the suit land for partition and no final decree was passed in favour of Tuljaram. No document was filed by her to show that Kishan Singh handed over the suit land of his 42 Dr.GRR,J AS No.608 of 2018 share to them. Though she admitted that Kishan Singh was alive, he was not examined as a witness by the defendant also.
49. DWs.2 and 3 stated that they were adjacent land owners, neither plaintiff No.1 nor his family members ever cultivated the suit land since 1996 onwards. Neither Shivappa nor his family members purchased the suit land. In their cross-examination, they stated that Shivappa cultivated the suit land on lease basis. They further stated that they did not know whether the defendants were in possession of the suit land as per the court order or Advocate Commissioner's report or by passing of a final decree.
50. Thus, as seen from the pleadings and evidence on record, the plaintiffs were claiming title basing on Exs.A1 and A2 and filed the suit for injunction in the year 1998. The plaintiffs had to establish that as on the date of suit they were in lawful possession of the suit property and the defendants tried to interfere or disturb their possession. The contention of the defendants was that the husband of defendant No.1 and father of defendants No.2 to 4 and his brother were the original owners of the suit schedule property and they disputed the title of the plaintiffs and contended that the plaintiffs lost 43 Dr.GRR,J AS No.608 of 2018 their possession in the year 1996 itself and the plaintiffs had to file a suit for declaration of title and for recovery of possession and a suit for bare injunction was not maintainable. Thus, an issue was raised with regard to the title of the plaintiffs and both the parties led evidence on the said issue. But, the courts below instead of relegating the parties to file an action for declaration of title decided on the issue of possession basing upon Exs.A23 and 24 and Exs.C1(a) to C5(a) which were admittedly tampered documents by PW.6.
51. The Hon'ble Apex Court in Anantula Sudhakar v. S.P. Buchhi Reddy18 laid down the general principles as to when a mere suit for permanent injunction would lie and when it was necessary to file a suit for declaration and/or possession with injunction as a consequential relief. The Hon'ble Apex Court held that:
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful 18 2008 (4) SCC 504 44 Dr.GRR,J AS No.608 of 2018 possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property.
A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit 45 Dr.GRR,J AS No.608 of 2018 into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally."
52. The Hon'ble Apex Court summarized the possession as under in paragraph-17 of the above judgment:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or 46 Dr.GRR,J AS No.608 of 2018 threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title either specific, or implied as noticed in Annaimuthu Thevar (supra). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive 47 Dr.GRR,J AS No.608 of 2018 declaratory suit, depending upon the facts of the case."
53. Considering the discrepancies with regard to the extents of the land found in Exs.A1 and A2 and though the name of the father of the plaintiffs, by name, Shivappa was recorded as pattedar and possessor in the pahanies up to 1996, the same were not challenged by the defendants and that both the parties had not examined Kishan Singh, brother of Tuljaram, from whom they acquired the property or with whom the defendants alleged to have entered into compromise in the partition suit between them nor filed any compromise or settlement deed and failed to state as to how they came into possession of the suit schedule property and the plaintiffs had also not challenged the entries in the revenue records showing the possession of the defendants from 1996-97 onwards and considering the evidence of PWs.5 and 6, the official witnesses who stated about the tampering of records, it is considered fit to relegate the parties to file a suit for declaration of title with consequential relief by setting aside the judgments of the courts below in granting the relief of injunction against the defendants.
48 Dr.GRR,J AS No.608 of 2018
54. Substantial question of law No.(ii):
The learned counsel for the appellants contended that the lower appellate court committed grave error in law in not disposing of the interlocutory application filed for receiving additional evidence in spite of specific directions of the High Court in CRP No.1124 of 2016 setting aside the order of the lower appellate court in IA.. No.576 of 2015 and relied upon the judgment of the High Court of A.P. in Durga Matha House Building Constructions Co-Op Housing Society Limited v. Sada Yellaiah S/o. Laxmaiah and Ors.19, wherein it was held that non-consideration of the miscellaneous applications vitiate the judgments and such error was an error apparent on the face of the record and alternatively prayed to remand the matter to the lower appellate court or to consider the said application and to record a finding on it in this second appeal.
55. The appellants had filed I.A No.3 of 2018 to receive the documents filed at Serial Nos.1 to 17, which were filed before the lower appellate court and serial Nos.18 to 23 which were subsequently filed and to receive the same as additional evidence. These are the certified copies of pahanies for the years 1951-52 and 2011 to 2014 19 2013 (5) ALT 442 49 Dr.GRR,J AS No.608 of 2018 which were stated to be filed before the lower appellate court and an unregistered sale deed executed by the plaintiffs in favour of Thammali Raghavulu (PW.2) on 04.04.2005 and the certified copies of the sale deed (Ex.A1), pahanies for the years 1995-96, 1996-97 (Exs.A23 and A24) and the Photostat copies of Exs.A1, A23 and A24 and certified copies of pahanies for the period from 2015-2016.
56. However, considering that Exs.A1 to A23 and A24 are already on record and there is no need to file the photostat copies of the same again to be marked as exhibits and the certified copies of pahanies for the period from 2015-16 till date are not relevant to decide as to who was in lawful possession of the suit schedule property by the date of filing of the suit for perpetual injunction in the year 1998, it is considered not necessary to allow the application or to remand the matter to the lower appellate court for disposing the said application.
57. Substantial questions of law No.(iii) & (iv):
In view of the findings of this Court on substantial question of law No.(i), it is considered fit to set aside the judgments of the courts below by dismissing the suit filed for perpetual injunction and 50 Dr.GRR,J AS No.608 of 2018 directing the parties to file a suit for declaration of title seeking consequential relief of injunction and recovery of possession.
Anything stated in this appeal or by the courts below shall not be taken as binding in any suit to be filed for declaration and consequential reliefs.
58. In the result, the Second Appeal is allowed setting aside the judgment dated 04.01.2018 passed in A.S. No.6 of 2010 on the file of Senior Civil Judge, Narayanpet, Mahabubnagar District, and the judgment passed in O.S No.23 of 1998 dated 31.10.2010 on the file of Junior Civil Judge, Narayanpet, Mahabunagar District. I.A. No.3 of 2018 is dismissed. No order as to costs.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J June 05, 2023 KTL