THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.121 OF 1992, TRANSFER APPEAL SUIT Nos.3456 and 3457 OF 2004 COMMON JUDGMENT: All these appeals arise out of a common judgment passed by the Senior Civil Judge, Karimnagar. The subject matter of the suit is the land in Sy.No.37/B to an extent of 5.00 acres at Bommakal village of Karimnagar Taluq. In all the suits, the plaintiffs are the appellants. The suit in O.S.No.118 of 1980 though the lower Court considered it as a suit for declaration of title and for injunction, in fact the plaint in the lower Court and the court fee paid thereunder, does not show that it was a suit for declaration of title. The earlier part of the plaint was shown as one for declaration of title. But, however the suit was valued only for a relief of injunction at Rs.1,000/- initially and thereafter when the Court has taken objection as to how the Subordinate Judge has got jurisdiction, it was valued at Rs.10,500/-, as can be seen from the proceedings of the docket dated 08.09.1980. Therefore, the suit as such has to be considered only as one for injunction, though the lower Court proceeded on the premise that it is a suit for declaration without going into the particulars of the allegations. According to the common evidence recorded in O.S.No.118 of 1980, the case of the plaintiffs is that the suit schedule property was purchased under a registered sale deed dated 20.08.1980 for a consideration of Rs.25,000/- from the legal heirs of Puttapaka Rajaiah, who is the original owner. The sale deed was executed by Ilamma, Pedda Mondaiah, Chinna Mondaiah and Raja Lingu. The defendants 1 and 2 have no right in the schedule property and the 1st defendant has his land on the northern side and with an intention to grab the property they are trying to interfere with the possession and enjoyment. Therefore, the suit was one filed for injunction. The defendants 1 and 2 have filed the written statement contending that the vendors of the plaintiffs have no right to sell the suit property. The defendant No.2 is the owner and possessor of the suit land to an extent of Ac.2-20 guntas having purchased the same under an agreement of sale dated 05.07.1970 from the original owner Rajaiah and has got possession and enjoyment of the property since then. Therefore, he is entitled to protect his possession under Section 53-A of the Transfer of Property Act, 1882. As the sale deed was not registered, mutation was not effected. The plaintiff was never in possession of the schedule property. Prior to the filing of the suit, the vendors of the plaintiffs filed a suit in O.S.No.609 of 1980 against the defendant No.2 and one Lal Mohammed and sought for injunction and it was dismissed. Therefore, the plaintiffs cannot claim the property. It was further pleaded that subsequently, on 26.09.1980 a sale deed was executed by Raja Lingu, Yellamma and Rajaiah in respect of the suit land ratifying the sale by Puttapaka Rajaiah. Therefore, the suit, in so far as the right of the defendants 1 and 2 is concerned, is not maintainable. Subsequently, defendants 3 to 12 were impleaded and they contended that late Puttapaka Rajaiah was not the exclusive owner of the land in Sy.No.37/B. The above land in Sy.No.37/B along with the land in Sy.Nos.225, 635 and 636 were jointly owned by Kalva family, Pasham family and Puttapaka family. In a partition, which took place about 20 years back, Ac.2-20 guntas of land out of Ac.6-35 guntas fell to the share of the defendants 3 to 12, belonged to Kalva family and Ac.1-00 guntas of land belongs to one Y.Brahmaiah and remaining land is in possession of M.Gurvaiah. Consequently, Puttapaka Rajaiah has no property in Sy.No.37/B. The sale deed in favour of the plaintiffs on 20.08.1980 was not executed by Puttapaka Raja Lingu and he filed a complaint about fabrication. Puttapaka Yellamma, mother of Rajaiah and Puttapaka Raja Lingu executed a registered deed of surrender on 08.10.1980 in favour of defendants 3 to 12 surrendering their interest in Sy.No.37/B. Therefore, the plaintiffs are not entitled for any relief. Subsequently, a suit in O.S.No.28 of 1982 was filed by Puttapaka Raja Lingu for cancellation of the document dated 08.10.1980 said to have been executed by him and his mother Yellamma in favour of defendants 3 to 12, which is said to have been obtained by fraud, coercion and misrepresentation. He also filed the suit in O.S.No.29 of 1982 to cancel the sale deed dated 29.09.1980 executed by him in favour of the 2nd defendant with regard to Ac.2-20 guntas of land in Sy.No.37/B. The defendants have raised the contentions repeating the same, which was raised in O.S.No.118 of 1980 and the plaintiffs in O.S.No.118 of 1980 are not parties to the suit. Necessary issues have been framed in all the suits and joint trial has been conducted and on behalf of the plaintiffs P.Ws.1 to 5 were examined and Exs.A-1 to A-28 were marked and on behalf of the defendants, D.Ws.1 to 4 were examined and marked Exs.B-1 to B-27 and Ex.C.1. After considering the evidence on record, the lower Court has dismissed all the suits and aggrieved by the said common judgment and decree, the present appeals are filed. The parties are hereinafter referred to as the parties in O.S.No.118 of 1980. The points that arise for consideration are: 1. Whether the plaintiff in O.S.No.118 of 1980 has got right and possession to 5.00 acres of land in Sy.No.37/B? 2. Whether the 2nd defendant is in possession of Ac.2-20 guntas from 1970, which was said to have been purchased under an agreement and subsequently ratified under the sale deed 3. Whether the defendants 3 to 12 have got right and interest in the schedule properties? 4. Whether the sale deed in favour of defendant No.2 and the relinquishment deed in favour of defendants 3 to 12 is true and valid? POINTS: As stated, at the outset, though the lower Court has considered the suit of the plaintiff in O.S.No.118 of 1980 as one for declaration of title, it is a simple suit for injunction. The dispute between the parties is with regard to the validity of the sale deed in favour of the plaintiffs. The sale deed is marked as Ex.A-3, which is a certified copy since the original is said to have been misplaced when it was given for mutation in the Tahsil office. Ex.A-1 is the sale deed in favour of defendant No.2 dated 20.09.1980 and Ex.A-2 is the surrender deed dated 08.10.1980 in favour of defendants 3 to 12. It is quite clear that Exs.A-1 and A-2 are subsequent to the sale deed in favour of the plaintiff. The lower Court has found fault with the plaintiff for not producing the original sale deed and did not believe that it was misplaced and the reason given by the lower Court is that it was to avoid comparison of the signatures. The fact that the persons, who executed the sale deed were examined as P.Ws.1 and 3, is overlooked by the lower Court. In fact, P.W.1 is the person, who filed the suits in O.S.Nos.28 and 29 of 1982 and according to him, the total extent of the land in Sy.No.37/B is Ac.10-35 guntas and during the lifetime of the father Rajaiah, an extent of Ac.5-30 guntas was sold to one Lal Mohammed under registered sale deed and the remaining extent of the property was sold by him and his brothers to the plaintiffs on 20.08.1980 under the sale deed to an extent of Ac.5.00 acres and delivered possession. He claims that still there is an extent of Ac.1-00 in his possession. After the sale, the plaintiffs were said to be in possession of the property. He denied the agreement of sale pleaded by the 2nd defendant in the year 1970 i.e. on 05.07.1970. This agreement was marked as Ex.B-27. P.W.3 is the other executant of Ex.A-3 and supported the sale in favour of the plaintiffs and delivery of possession of the property. Therefore, when the executants of the sale deed come and depose that they have executed the sale deed in favour of the plaintiffs, the reasoning of the lower Court in not accepting Ex.A-3, copy of the sale deed, is not valid. It is to be mentioned that on behalf of the defendants no other person, who is associated with this transaction, was examined to prove that the sale deed was a fabricated document. In fact, the evidence of P.W.5, who was a Revenue Inspector, clearly goes to show that the original sale deed was given and it was misplaced and he gave the memo Ex.A-28. Therefore, from the above evidence on record, there cannot be any dispute to be raised by the defendants that there was no proof of execution of the sale deed under the original of Ex.A-3 and receipt of the consideration under Ex.A-3. The lower Court has, therefore, erred in holding that the sale transaction is not true and not proved. The right and possession of the property for the plaintiffs depends upon the right of the 2nd defendant and also the right of defendants 3 to 12 claimed by them. So far as the case of the defendant No.2 is concerned, who was examined as D.W.2, he claims to have purchased the property under an agreement of sale dated 05.07.1970 to an extent of Ac.2-20 guntas and subsequently he claims to have obtained the registered sale deed, which is marked as Ex.A-1 on 26.09.1980. In order to show his possession and enjoyment, Ex.B-19 cist pass book and revenue receipts were filed and he also relied upon a compromise decree in A.S.No.27 of 1978 under Ex.A- 26, whereunder the heirs of Rajaiah were also executants under Ex.A-3, accepted his rights. He admits that the patta stands in the name of Rajaiah and he is the owner of the property. In fact, his possession and enjoyment were also spoken to by D.W.3 and D.W.3 also spoke about his attesting Ex.B-27 agreement of sale. He claims to be having lands near the schedule property and the 2nd defendant is said to be in possession and enjoyment of the property since 1970. There is not of much cross-examination to dispute the above transaction. In fact, the name of the 2nd defendant is shown to be in possession and enjoyment of the property and Ex.B-19 pass book clearly goes to show that even in 1975-76 and 1976-77 his possession has been recorded and a pass book is said to have been issued. Cist receipts are also filed to prove his possession and enjoyment of Ac.2-20 guntas. Ex.B- 25 also proves the same. In fact, there is not of much cross-examination on behalf of the plaintiffs to show that Ex.B-27 or his possession and enjoyment as false. There is also nothing to show that the claim of the plaintiffs, P.W.1, that Ex.A-1 sale deed was obtained by fraud or coercion. None of the persons associated with this document were examined. Therefore, it is quite clear that though the sale deed Ex.A-1 was executed after the sale deed in favour of the plaintiff as it relates to the earlier agreement of sale under Ex.B-27, the alienation of Ac.2-20 guntas of land purchased by the 2nd defendant in favour of the plaintiffs, cannot be taken into consideration. So far as the rights of defendants 3 to 12 are concerned, they have come up with a specific plea that the suit properties are the joint properties of three families by name Kalva family, Puttapaka family and Pasham family and there was said to be an oral partition and in that partition the defendants 3 to 12 have got Ac.2-20 guntas of land. Reliance is placed on the documents Exs.B-3 to B-16. In fact, in order to sustain the plea that the property belongs to the three families jointly, no record is filed. On the other hand, the khasra pahani for the year 1954-55, which has got evidentiary value with regard to the title, is filed by the plaintiff under Ex.A-4 and it does not show that either Pasham family or Kalva family have got joint rights in this land in Sy.No.37/B. In fact to prove the alleged partition and the family arrangement set up by the defendants 3 to 12, there is absolutely no document. The relinquishment of the rights in favour of another person can be created only if there are any joint rights for the other party and it was pleaded that there was a partition and Ac.2-20 guntas fell out of Ac.6-35 guntas to the share of Kalva family, the beneficiaries being defendants 3 to 12. As can be seen from the record, the total extent of the property in Sy.No.37/B is Ac.12-35 guntas. The claim of P.Ws.1 and 3, that their father sold away Ac.5-30 guntas long time back is not in dispute. Therefore, what was left was only Ac.6-35 guntas. In this connection, the evidence of P.W.4, who is the Revenue Inspector, assumes importance. According to him, Sy.No.37 is the neeradi inam land of Puttapaka Rajaiah and P.W.5 also worked as Patwari from 1972 till he was appointed as a junior assistant. According to him, during his period as a patwari, he has never shown the cultivation of the above land. He has never made cultivation entries of Kalva family or Jilla family. According to him, during the years 1978 to 1980, some entries were made in the name of the defendant and as per the directions of the Tahsildar, they were rounded off and deleted. He admits to have given Exs.B-3 to B-12 patta passbooks for the suit survey numbers in favour of defendants 3 to 12. In order to sustain the claim of the defendants 3 to 12, D.W.1 was examined and reliance was placed on Exs.B-3 to B-16. He admits that there is no record to show that the Kalva family and Pasham family are the shareholders of Sy.No.37 along with Puttapaka people. It is stated that Pasham family has got land in other survey numbers and not in Sy.No.37. Therefore, in order to succeed, defendants 3 to 12 have to show that the land in Sy.No.37 and other lands belonged to the three families and there was a partition. On behalf of defendants 3 to 12, the elders members of the family were not examined and the members of the Pasham family were also not examined. In the absence of such evidence, the alleged relinquishment deed or surrender deed Ex.A-2 after the sale deed in favour of the plaintiff and Ex.A-3 cannot be taken into consideration. Even otherwise, Exs.B-3 to B-17 do not show as to when the partition has taken place and the total extent of the possession of Ac.2-20 guntas is also not clearly mentioned. In fact, when P.W.1 was cross-examined, it was elicited that his father has got other lands apart from the lands in Sy.No.37. It was sought to be suggested that at about 30 years back, the share holders have distributed the land and in Sy.No.37/B Kalva people got Ac.2-20 guntas on the western half of the suit land. It is not in dispute that the land in Sy.No.37 was sub-divided into 37/A and 37/B. As can be seen from the revenue records and Ex.A-4 Khasra pahani clearly goes to show that Sy.No.37/B is in the name of Puttapaka Rajaiah. If a division has taken place about 30 years back, naturally the khasra pahani should reflect the same. The fact that out of Ac.6-35 guntas of land in Sy.No.37/B, Ac.1-00 was sold to Y.Brahmaiah as claimed by P.Ws.1 and 3 is also reflected in the revenue records. Therefore, from the material available on record, it is difficult to hold that Kalva family or Pasham family has got any rights in Sy.No.37/B and that there was a partition as claimed by the defendants 3 to 12 and that Ac.2-10 guntas has fallen to their share. The alleged relinquishment deed or surrender deed Ex.A-2 is, therefore, not valid. Consequently, it has to be held that the plaintiff having purchased the property from the original owners of the property, shall be deemed to be in possession of the property and merely because shortly after the purchase, the suit was filed, does not mean that the vendors of the plaintiff or the plaintiffs have no possession of the property. The material available on record shows that defendant No.2 has got possession of Ac.2-20 guntas of land within the boundaries claimed in the written statement and the sale in favour of the plaintiffs is only valid to that extent since it is supported by the executants P.Ws.1 and 3 and consequently it has to be held that the plaintiffs in O.S.No.118 of 1980 will be entitled to an injunction with regard to an extent of Ac.2-20 guntas excluding Ac.2-20 guntas, which is in possession of defendants 1 and 2. Even if the sale deed in favour of defendants 3 to 12 under Ex.A-2 is held to be not vitiated, but still it being one executed after the sale deed in favour of the plaintiff and there being no pre-existing rights shown by the defendants 3 to 12, they cannot claim any right of possession and in fact the possession is also not established. Accordingly, the appeal in A.S.No.121 of 1992 is allowed holding that the plaintiff will be entitled to the injunction to the extent of Ac.2-20 guntas excluding the property sold to defendant No.2 under the sale deed Ex.A-1. The other appeals are liable to be dismissed. Accordingly, the Appeal Suit in A.S.No.121 of 1992 is partly allowed and the Transfer Appeal Suits in TRAS Nos.3456 and 3457 of 2004 are dismissed. Each party to bear their own costs. ________________________ N.R.L.NAGESWARA RAO, J 08-11-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.121 OF 1992, TRANSFER APPEAL SUIT Nos.3456 and 3457 OF 2004 Date: 08-11-2011 MR