IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4724 of 2009 Between: D. Yogander Varma .. Petitioner AND Syed Sirajuddin and another .. Respondents Revision against the order dated 28-07-2009 in C.M.A. No.7 of 2009 on the file of the Senior Civil Judge, Zaheerabad, Medak District. The revision petition coming on for hearing, upon perusing the material in support thereof and upon hearing the arguments of Sri P. Laxma Reddy, Advocate for the petitioner and of Sri Mohd. Ghulam Hussain, Advocate for the respondents, the Court made the following: ORDER: The order passed in C.M.A. No.7 of 2009 by the Senior Civil Judge, Zaheerabad on 28-07-2009 in the appeal against the order passed in I.A. No.84 of 2009 in O.S. No.25 of 2009 on the file of the Junior Civil Judge, Zaheerabad, dated 12-06-2009, led the plaintiff to file the present civil revision petition. The factual background for the revision petition is that the revision petitioner sought for temporary injunction against the defendants in the suit concerning the suit schedule property claiming to be the absolute owner and possessor of the land located at Kaveli village, Koheer Mandal, Medak District, having purchased the same from Syed Shafiuddin, Khairunnisa Begum and Samiuddin on 25-08-2005 under a registered sale deed. The defendants resisted the suit contending that the 1st defendant had, in fact, filed a suit for specific performance in O.S. No.228 of 2005 renumbered as O.S. No.24 of 2008 on the file of the Senior Civil Judge’s Court, Zaheerabad against Shafiuddin in respect of the lands in dispute and it was the plaintiff and his men that were interfering with the possession of the defendants. The defendants contended the sale deed in favour of the plaintiff to be false, invalid and created in collusion with Syed Shafiuddin, his wife and son, while the plaintiff contended that the alleged oral agreement of sale in favour of the defendants from Shafiuddin was false and created with a view to get over the registered sale deed in his favour. The trial Court after marking Exs.P.1 to P.4 and R.1 during enquiry into the petition for interim injunction, rendered its order on 12-06-2009 stating that the registered sale deed in favour of the plaintiff was further acted upon by having his name mutated in the revenue records and the 1st defendant, who relied on an oral agreement of sale, has produced only a certified copy of pahani for the year 2007-08. The 1st defendant was noted by the trial Court to have not filed even one third party affidavit to show his possession and enjoyment as on the date of the suit or any scrap of paper to show that Rs.4,00,000/- were paid towards part payment of sale consideration under the oral agreement of sale. Therefore, the trial Court preferred to act upon the documentary evidence of the plaintiff and relying upon the recital about delivery of possession of the property to the plaintiff under the registered sale deed in his favour, granted temporary injunction restraining the defendants from interfering with the peaceful possession of the plaintiff. In appeal, Exs.R.2 to R.10 were marked on behalf of the appellants/defendants and the learned Senior Civil Judge in the impugned order considered the fact that the defendants were claiming to be cultivating the land originally on khoul and batai basis under the original owners and it also referred to a receipt said to have been filed by the defendants in O.S. No.24 of 2008 in respect of part payment of consideration of Rs.4,00,000/-. The dismissal of O.S. No.24 of 2008 not on merits but only in default, was also noted and the pendency of the petition for restoration of the suit was also referred to. The appellate Court further observed that the suit is for a mere injunction and the burden of proving his possession by the date of the suit was not discharged by the plaintiff in view of the pahanies Exs.R.1 to R.5, prima facie, probablising the possession of the defendants by the date of the suit. Relying upon the pahanies showing the 1st defendant as the possessor of the suit properties at the relevant time and considering any final conclusions about the rights of the parties to be not open to be arrived at in the interlocutory adjudication, the learned Senior Civil Judge concluded that the plaintiff failed to prove his prima facie possession in view of the prima facie indication of the possession of the 1st defendant by Exs.R.1 to R.5. Consequently, the appellate Court set aside the order of the Junior Civil Judge with a direction to both parties to maintain status quo till disposal of the suit. The plaintiff in this revision raised the same questions of fact in detail for justifying his request for restoration of the order of the trial Court and reversal of the order of the appellate Court and the respondents filed further additional material papers showing that the mutation in favour of the plaintiff was reversed by the Revenue Divisional Officer till the disposal of O.S. No.228 of 2005 and that there were complaints between the parties before the police and that even subsequent pahanies indicate the continued possession of the 1st defendant over the disputed properties. Sri P. Laxma Reddy, learned counsel for the revision petitioner and Sri Mohd. Ghulam Hussain, learned counsel for the respondents strenuously reiterated the respective contentions of the parties. The existence of a registered sale deed executed by the admitted original owners in favour of the plaintiff reciting receipt of entire consideration by the original owners and delivery of possession of the suit property to the plaintiff, is and cannot be in dispute. The consequential mutation obtained by the plaintiff including grant of pattedar passbook and title deed in his favour, are also not in dispute, while the proceedings of the Revenue Divisional Officer, Sangareddy now filed before this Court by the defendants show that the mutation proceedings have been for the present reversed subject to the finality of the civil litigation between the parties and Sri Laxma Reddy, learned counsel for the revision petitioner stated that the orders of the Revenue Divisional Officer are subject of stay pending proceedings in revision before the Joint Collector, Medak District at Sangareddy. There were obviously disputes concerning possession between the parties, which resulted in reports to the police and registration of crimes and it was also obviously the scramble for possession that led to civil litigation in either O.S. No.24 of 2008 or this suit. Whether the oral agreement of sale in favour of the defendants and payment of part of consideration to an extent of Rs.4,00,000/- by them to one of the owners Syed Shafiuddin are true or not, the consistent entries in pahanies right from 2004-2005 showing the 1st defendant to be the possessor and cultivator of the suit properties do not run counter to the claim of the defendants that they were in possession and cultivation of the suit schedule lands since prior to the execution of the registered sale deed by the original owners in favour of the plaintiff. If prima facie the defendants were cultivating the lands on batai or sharing basis as tenants when the plaintiff purchased the land from the original owners, their dispossession may have to be through due process of law and the delivery of possession in favour of the plaintiff said to have been made by the original owners under the registered sale deed may have to be construed as symbolic delivery of possession and may not be physical delivery of possession. If so, either the grant of temporary injunction unconditionally in favour of the plaintiff or the grant of order of status quo against both the parties, may not exactly subserve the ends of justice and the interests of the plaintiff have to be safeguarded by securing a reasonable return from the suit schedule property through its cultivation at least since now while not physically disturbing the prima facie disclosed possession of the defendants as consistently entered in the pahanies, pending the litigation. In case the defendants do not secure such a reasonable income during pendency of the litigation, for the ultimate benefit of the parties succeeding in the litigation, the plaintiff should be given liberty to approach the trial Court for appointment of a receiver, which the trial Court shall positively consider on such default of the defendants. As the civil Court has necessary jurisdiction to mould such interim relief pending finality to the civil suit to safeguard the rights and interests of both parties, a close consideration of the material on record indicates such a course of action to be the appropriate course of action. There is vast variance between the estimates of the learned counsel for the revision petitioner and the learned counsel for the respondents about the probable income, which the suit schedule land may fetch by raising sugarcane or other commercial crops. But as any mathematical precision cannot be expected in the present adjudication, an estimate in approximation may suggest that securing Rs.80,000/- per year to the credit of the suit to be deposited by the defendants will meet the ends of justice. Therefore, the order of interim injunction granted in I.A. No.84 of 2009 in O.S. No.25 of 2009 by the Junior Civil Judge, Zaheerabad on 12-06-2009 and the order of status quo granted by the Senior Civil Judge, Zaheerabad in C.M.A. No.7 of 2009 on 28-07-2009 are set aside and the defendants in O.S. No.25 of 2009 on the file of the Junior Civil Judge, Zaheerabad shall deposit Rs.80,000/- (Rupees eighty thousand only) per annum commencing from January, 2010 by 31st of January every year till the finality of litigation between the parties in the said suit or any further proceedings arising therefrom to be ultimately paid to the party emerging successful at the end of the litigation. In default of the defendants depositing such amount in any year, the plaintiff shall be at liberty to approach the Court with a request for appointment of a receiver to take possession and manage the suit schedule properties, which request shall be positively considered by the civil Court. Any observations made in this order shall not influence the ultimate determination of the rights of the parties on merits by the civil Court. The trial Court shall make every endeavour to dispose of the suit expeditiously after giving every reasonable opportunity to both parties. The civil revision petition is ordered accordingly. No costs. ____________________ G. BHAVANI PRASAD, J Date: 08-12-2009 Svv