THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR C.M.A.No.822 of 2009 Date of Judgment: 22-09-2009 Between: 1.Saida Binte Imani Jabri and another. …Appellants. And 1. Smt. Bushra Begum and others. …Respondents. The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR C.M.A.No.822 of 2009 Judgment: (Per Honourable Sri Justice A.Gopal Reddy) This appeal by the defendants is directed against the order of the II Additional Chief Judge, City Civil Court, Hyderabad dated 29-06-2009 passed in I.A.No.832 of 2007 in O.S.No.86 of 2007 whereby the learned Judge granted temporary injunction in favour of the petitioners/plaintiffs restraining the respondents/defendants from interfering with the possession and enjoyment of the petition schedule property. For the sake of convenience the parties are referred to as arrayed in I.A.No.832 of 2007 in O.S.No.86 of 2007. The facts leading to filing this appeal are, briefly, stated as under: The petitioners/plaintiffs, who are daughters of late Mohd.Ismail, filed the above suit simplicitor for injunction restraining the respondents/defendants from interfering with their possession of the suit schedule property claiming that they got the suit schedule property through gift deeds dated 11-02-1994 from their father to an extent of Ac.4.09 gts. each in Sy.Nos.103/14, 103/7 and 103/7 situated in Bandlaguda village and Mandal, Ranga Reddy District and since then they are in possession and enjoyment of the same with absolute rights. It is stated that the suit schedule properties are absolute properties of their late father, who purchased through registered document Nos.1257/68, 1256/68 and 1258/68 and obtained a decree for declaration in respect of the suit schedule properties against his vendors. When the defendant Nos.1 and 2 with the help of their GPA holder trying to interfere with their possession they filed O.S.No.759 of 2006 on the file Principal District Judge, Ranga Reddy District for permanent injunction. Later, on return of the plaint for presentation before the competent court having territorial jurisdiction, they presented the plaint before the II Additional Chief Judge, City Civil Court, Hyderabad. Pending the suit they filed I.A.No.3889 of 2006 for grant of temporary injunction alleging that on 09-10-2006 when the defendants try to interfere with the plaint schedule properties their brother, namely, Md. Zuber, who is staying in Bandlaguda village, along with his workers resisted their interference. The trial court granted temporary injunction on 09-11-2006. It is further stated that the defendants filed suit—O.S.No.2109 of 2006 on the file of VII Senior Civil Judge, City Civil Court, Hyderabad for perpetual injunction against their brother, Md. Zuber and obtained ex-parte injunction on 22-11-2006 in I.A.No.1441 of 2006. The suit filed by the defendants is only an after thought knowing fully that the plaintiffs already obtained injunction in I.A.No.3889 of 2006 in O.S.No.759 of 2006. Thereafter, their brother, Zuber, filed counter in the suit filed by the plaintiffs. On hearing both the parties the learned VII Senior Civil Judge, Hyderabad dismissed the I.A.No.1441 of 2006 on 02-02-2007. After the plaintiffs filed the suit—O.S.No.759 of 2006 the defendants with a view to create evidence, approached the revenue authorities for survey of lands by using their influence for which necessary steps have been taken to prevent the survey. While so, on 08-01-2007 the respondents/defendants along with anti-social elements tried to trespass by attempting to remove the board and threatened the watchman. Therefore, they lodged a compliant. The GPA holder of the defendants filed a counter denying the ownership over the petition schedule property by the petitioners/plaintiffs and also purchase of the property by their father under three sale deeds. Even if any such decree is passed, they (plaintiffs) will not acquire any right, title or interest over the petition schedule property and denied the possession of the petitioners since from the date of gift. It is their case that they are the daughter and son of Yamini Bin Amar Jabri, who was the protected tenant in respect of the various extents of lands including the land in Sy.No.103/7 of Bandlaguda village and in whose favour Tenancy Certificate under Section 38-E of the Andhra Pradesh (Telangana area) Tenancy Act, 1950 was issued by the Additional Revenue Divisional Officer, Hyderabad-West on 22-05-1975 in respect of suit schedule property which has become final. Earlier to grant of patta the revenue officials taken over the property in M.C.No.14 of 1971 and subsequently the Court by order dated 15-04-1973 directed delivery of possession of the land to the respondents’ father and after conducting panchanama the Bailiff handed over the possession of the lands to their father. The total extent of the land in Sy.No.103/7 of Bandlaguda is Ac.23.26 cts. over which their father was granted Section 38-E certificate. There had been many attempts to encroach upon the said land, but they could able to resist the same and protected the possession, which is evident from the revenue records. On a compliant made by them, the police registered a case in Cr.No.302 of 2006 on 11-10-2006. They filed O.S.No.2109 of 2006 before the VII Senior Civil Judge, City Civil Court, Hyderabad for perpetual injunction. Along with the suit they also filed I.A.No.1441 of 2006 seeking temporary injunction. The lower court granted ex-parte interim injunction, 22-11-2006. The petitioners’ brother—Zuber filed counter opposing the petition claiming that an extent of Ac.8.18 gts. in Sy.No.103/7 was purchased by his father under three registered sale deeds and since they are in possession and enjoyment of the same. He also claimed that his father had gifted away the suit and some other lands to his sisters i.e. petitioners/plaintiffs on 11-02-1994 and they are in possession of the same and the petitioners filed O.S.No.759 of 2006 before the Principal District Judge, Ranga Reddy District. The respondents ignorant of the said fact filed suit—O.S.No.2109 of 2006 before the VII Senior Civil Judge, City Civil court, Hyderabad and obtained ex-parte interim injunction against the brother of the petitioners. The learned Senior Civil Judge dismissed the I.A.No.1441 of 2006 holding that the suit property was situated in Ranga Reddy Court jurisdiction and the petitioners therein (respondents) have suppressed the same and directed to return the plaint to present in proper court. Against which the respondents filed C.M.A.No.73 of 2007 on the file of II Additional Chief Judge, City Civil Court, Hyderabad in which they filed I.A.No.988 of 2007 seeking temporary injunction. It is also relevant to notice that the learned II Additional Chief Judge, City Civil Court, Hyderabad allowed the C.M.A.No.73 of 2007 on 30-04-2007 and remanded the matter to the trial court for disposal of the suit on merits. Questioning the said remand order the brother of the plaintiffs’ filed C.R.P.No.2568 of 2007 which was disposed of on 20-12- 2007 holding that the District Judge, Ranga Reddy already entertained the suit filed by the defendant’s sisters in O.S.No.759 of 2006 and granted injunction in I.A.No.3889 of 2006 against the respondents, who are the plaintiffs in O.S.No.2109 of 2006 and, therefore, two courts could not pursue the trial over the same property. Since the injunction granted against the plaintiffs in the suit filed by the petitioners herein before the Ranga Reddy Court was not challenged, they filed the suit in Hyderabad Court. Two injunctions with respect to the same property contradicting each other cannot be allowed to be remained effective at the same time. Without going into the question whether the Hyderabad Court had jurisdiction or the Court at Ranga Reddy had jurisdiction, the learned Judge uphold the order of remand passed by the Chief Judge, City Civil Court, Hyderabad, but revoked the interim injunction granted because, admittedly there is an injunction granted by the Ranga Reddy Court, which is not under challenge. Therefore, the matter is remanded back to the trial court to decide whether the Court has jurisdiction or not. On remand, I.A.No.1441 of 2006 was allowed confirming the injunction granted on 22-11-2006. Questioning the same the brother of the petitioners carried the matter in appeal—C.M.A.No.33 of 2008 before the II Additional Chief Judge, City Civil Court, Hyderabad which was partly allowed holding that the interim order granted earlier on 22-11-2006 cannot be made absolute in the light of withdrawing the injunction by the High court in C.R.P.No.2568 of 2008 and allowed the I.A. granting injunction from the date of order passed i.e. 25-02- 2008. Questioning the correctness of the same C.R.P.No.1796 of 2008 was filed by the brother of the petitioners and the same has been dismissed on 07-08-2008 vacating the status quo order granted on 25-04-2008,while admitting the CRP, with a direction to the trial court to dispose of the main suit. Meanwhile, the respondents filed I.A.No.198 of 2008 for implementing the order passed in I.A.No.1441 of 2008 dated 25-02-2008 by granting police aid. On allowing the said I.A.No.198 of 2008 the petitioners’ brother —Zuber filed C.R.P.No.1902 of 2008, which was dismissed on 07-08- 2008. Questioning the dismissal of the revision the brother of the petitioners carried the matter in Special Leave to Appeal (Civil) No.24995/2008 and the said leave petition was dismissed on 24-10-2008. In the result, injunction order granted in favour of the respondents and police aid granted to protect their possession is in force. On returning the suit by the Principal District Judge, Ranga Reddy, the plaintiffs presented the same before the II Additional Chief Judge, City Civil Court, Hyderabad, which was re- numbered as O.S.No.86 of 2007 in which an I.A.No.832 of 2007 was filed for seeking temporary injunction. The trial court allowed the said I.A. holding that Exs.P13 to P18 could not establish the possession of the petitioners over pliant A, B and C schedule properties as on the date of filing of the suit or since the date of execution of Exs.P1 to P3 gift deeds dated 11-02-1994, but once the petitioners’ title is prima face established by Exs.P1 to P3 in respect of the petition schedule properties, the presumption under law is that possession follows title and as such the petitioners’ possession followed by their title over petition schedule A, B and C schedule properties can be said to be proved on the date of filing of the suit and accordingly granted injunction. Questioning the correctness of the same the present appeal is filed. While admitting the appeal this Court suspended the injunction order on 30-07-2009. Sri D.Prakash Reddy, learned senior counsel appearing for the appellants contended that in the affidavit filed by the petitioners/plaintiffs it is categorically asserted by them that when the defendants 1 and 2 tried to interfere with the possession of the suit schedule property their brother— Mohd. Zuber, who was staying in Bandlaguda village, and his workers resisted their interference and the respondents filed a suit for perpetual injunction against their brother and obtained ex-parte injunction from the VII Senior Civil Judge, City Civil Court, Hyderabad on 22-11-2006; their brother filing counter and vacating the injunction on the ground that the suit filed by the petitioners is earlier. Meanwhile, the respondents obtained injunction on 06-03-2007 in C.M.A.No.73 of 2007, which was allowed on 30-04-2007 remanding the matter to the trial court. On remand, the injunction order was confirmed by the trial Court. Therefore, on the said date there was no parallel injunction against them. The lower court granted injunction accepting the plea of the respondents that their father was the protected tenant and the same was affirmed by the appellate Court in C.M.A.No.73 of 2007 filed against the brother of the petitioners and granting police protection was also upheld on dismissal of revision and SLP. The lower court while holding that the petitioners have not established their possession over the A, B and C schedule properties as on the date of filing of the suit or since the date of execution of Exs.P1 to P3, granting injunction on the ground that title is prima facie established by Exs.P1 to P3—gift deeds per se erroneous, since the petitioners pleaded that they have not registered. The notice of demand dated 03-10-1997 issued under Section 4 of the Andhra Pradesh Non- Agricultural Lands Assessment Act, 1963 to the brother of the petitioners under Ex.A18 also do not prove possession of the petitioners. Granting the interim order only on the ground that the respondents have not filed Ownership Certificate issued under Section 38-E of the Tenancy Act, which has been accepted by the predecessor of the present Presiding Officer in C.M.A.No.33 of 2008 after trial. Once the petitioners are not in possession as on the date of filing the suit and as per the orders passed earlier the respondents are in possession and their possession was protected by granting police protection, the injunction order passed by the trial court cannot be sustainable. Sri Vedula Venkataramana, learned counsel appearing for the respondents herein contended that the petitioners/plaintiffs filed suit— O.S.No.759 of 2006 in earlier point of time against the respondents/defendants and obtained injunction in I.A.No.3889 of 2006 on 09-11-2006 and suit—O.S.No.2109 of 2006 filed by the respondents is subsequent and in which an ex-parte injunction was granted on 22-11- 2006. He fairly conceded that the injunction will not survive on return of the plaint, but contended in schedule to injunction it is mentioned Sy.No.103/A measuring Ac.23.26 gts. but not Sy.No.103/7; though it is mentioned in the affidavit Sy.No.103/7 the order passed in C.R.P.No.2568 of 2008 do not indicate correlation of Sy.No.103/A with that of Sy.No.103/7. When the father of the petitioners purchased the property under three sale deeds— Exs.P4 to P6 and obtained a decree for declaration against his vendors and the link documents Ex.P10 to P12 also disclose that their father is titleholder to the suit property, suit for simplicitor injunction by a person in lawful possession can always be maintainable. Even the gift deeds are eschewed from consideration for want of registration, still they can maintain the suit for injunction. For the said proposition he placed reliance on the judgment of the Supreme Court in RAME GOWDA v. VARADAPPA NAIDU[1]. When Exs.P1 to P3—gift deeds recording past transaction, whether it is compulsory to be registered or not under Section 129 of the Transfer of Property Act has to be gone into in the main suit. When the respondents claim that their father was protected tenant and granted Certificate under Section 38-E whether succession was granted in their favour has not been shown. Therefore, injunction granted against the brother of the petitioners is not binding on them, since it is an act of personam, and the same will not biding on them. When the respondents failed to produce Certificate under Section 38-E the finding recorded in the interlocutory proceedings and CMA have no evidentiary value. For which reliance is placed on the judgment of the Supreme Court in STATE OF BIHAR v. RADHA KRISHNA SINGH[2]. Further, there is no evidence in I.A.No.1441 of 2006 that the petitioners therein are in possession of the suit schedule property and nothing prevented them to produce Ownership Certificate under Section 38-E. When the land being vacant land, presumption of possession based on title have rightly been applied by the court below. The discretion exercised by the lower court cannot be held as capricious and the same do not call for any interference. For the said proposition reliance is placed on the judgment of the Supreme Court in MYSORE STATE ROAD TRNASPORT CORPORATION , BANGALORE v. MIRJA KHASIM ALI BEG[3]. In view of the rival submissions the only point that arises for consideration in this appeal is: “Whether the injunction order granted by the lower court restraining the respondents is sustainable or not”. In RAME GOWDA’s case (1 supra), on which strong reliance is placed by the learned counsel for the petitioners/plaintiffs, the Supreme Court held that it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decision and laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession': i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidench. The nature of possession of the trespasser would however, be a matter to be decided on the facts and circumstances of each case: iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner and iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land would be whether or not the trespasser, after having taken possession had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. It is not disputed that the plaintiffs who earlier filed suit O.S.No.759 of 2006 in which obtained injunction from the Principal District Judge, Ranga Reddy on 09-11-2006 was withdrawn. There is no evidence to show the service of injunction order on the respondents. As already pointed out by the learned senior counsel petitioners categorically asserted in their affidavit when the defendants 1 and 2 tried to interfere with the pliant schedule property, their brother, namely, Zuber who is staying in Bandlaguda village and his workers resisted their interference. The respondents filed a suit for perpetual injunction against the brother of the petitioners and along with the same they filed I.A.No.1441 of 2006 and obtained ex-parte interim injunction order on 22-11-2006. The suit filed by the respondents was only an after thought knowing fully that the petitioners already obtained injunction in I.A.No.3889 of 2006 and on their brother filing the counter, the injunction order has been vacated. Therefore, petitioners now cannot contend that the order passed in I.A.No.1441 of 2006 has no relevancy to the facts of the case when they admitted passing of order against their brother. The order passed in I.A.No.1441 of 2006 dated 25-02-2008 clearly discloses that the competent court has gone into the documents filed by the respondents and also the suit filed by the petitioners before the Principal District Judge, Ranga Reddy. There was no dispute that the father of the respondents got the petition schedule property through Court and Bailiff delivered possession. The pahanies for the year 1954-55 shows that the father of the respondents was possessor of the land. The report of the Bailiff dated 17-04-1973 shows that the Bailiff of the court delivered possession of the land to the father of the respondents. The certificate issued by the Additional Revenue Divisional Officer, Land Reforms, Hyderabad-West dated 22-05-1975 shows that the father of the respondents was the owner. All the pahanies reveals that the father of the respondents was the owner and possessor. The pahanies for the years 1975-76, 77, 78, 79, 81, 82. 90 and 1991 reveals that the father of the respondents was the owner of the property, whereas the brother of the petitioners claims that their father purchased the petition schedule property. The respondents made out prima facie case that they are in possession of the property and the petitioners who are the sisters of Mohd. Zuber filed suit O.S.No.759 of 2006 and obtained ex-parte injunction, but later they withdrawn the suit on the point of jurisdiction. There is no parallel injunction against the respondents as on the date of I.A.No.1441 of 2006 allowed on remand. The II Additional Chief Judge, City Civil Court, Hyderabad who entertained and disposed of C.M.A.No.33 of 2008 has also gave a finding that both the parties have filed their respective documents before the Court in C.M.A.No.73 of 2007 and they were marked as Exs.A1 to A20 and Exs.B1 to B18. The documents relied on by the respondents prima facie establish that the respondents are in possession of the suit schedule property. The name of the respondents’ father is found in the Khasra Pahani for the year 1954-55 in respect of Sy.No.103/7 of Bandlaguda village in an extent of Ac.23.26 gts. and there is evidence that the property has been delivered to the father of the respondents in M.C.No.14/1971, who was later granted Certificate under Section 38-E of the A.P. (Telangana Area) Tenancy Act. The pahanies for the year 1978-79 show the name of the respondents’ father to be the possessor of the property. Therefore, he made the injunction order absolute. The orders have been marked as R1 to R3. The said order has been confirmed in C.R.P.No.1796 of 2008. Later the respondents obtained police aid in I.A.No.198 of 2008 to protect their possession and the same has been confirmed by the High Court in C.R.P.No.1902 of 2008 under Ex.R4 and the Special Leave Petition filed against the said order has been dismissed by the Supreme Court under Ex.R6. Therefore, they are deemed to be in possession of the property. This Court in K.PRABHAKAR RAO v. A.ASHALU[4] held even if the protected tenant is not in possession, he would be deemed to be in possession by virtue of Explanation to 38(2) of the Act. That apart, he has always the right to restoration of the possession of the land in respect of which he is holding a P.T. certificate or is given an ownership certificate, by having recourse to proceedings under Section 32 or proviso to Section 38- E (2) of the Act, as the case may be. If an injunction is granted against a protected tenant or holder of an ownership certificate from entering into the land it would amount to preventing him from exercising his right to get into the possession, a remedy which the Act provides. The equitable remedy of injunction is available to protect a legal right and can be used in aid of that right but not to disable the opposite party from availing the statutory remedy available to him under a beneficial legislation. A Division Bench of this Court in P.ANIL KUMAR v. JOINT COLLECTOR[5] considered the power of Tahsildar to grant an injunction in favour of the tenant and held that the injunctive relief is comprehended within the larger relief of restoration of lost possession to tenant. Restoration is expressly spoken of by sub-Section (1) of Section 32 of the Act. If no injunction can be granted against the landlord from disturbing the possession of the tenant, the landlord would be free under Section 32(2) of the Act to obtain possession of any land held by a tenant otherwise than under the order of the Tahsildar. But Section 32(2) clearly forbids such a dispossession. Considering the matter from the above point of view and appreciation the whole matter from the tenant’s view point it is reasonable to hold that the power to grant an interim injunction in favour of the tenant is within the power of the Tahsildar. The Supreme Court in STATE OF BIHAR v. RADHA KRISHNA SINGH (2 supra) held that under the evidence Act a judgment which is not inter parties is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. Once the petitioners admitted that their brother, Mohd. Zuber staying in Bandlaguda village resisted interference of the respondents and respondents filed the suit and obtained injunction against their brother, which has become final, followed by police aid, the respondents are deemed to be in possession of the property. When the petitioners failed to establish their possession as on the date of institution of the suit or from the date of gift deed as per the findings recorded by the lower court, granting injunction against the respondents on the ground that the respondents have not filed the