* HON’BLE SRI JUSTICE V. ESWARAIAH + C.R.P. Nos. 5984, 5985 and 5986 of 2009 & 1058,1059 and 1060 of 2010 %28-1-2011 # D. Sanyasayya Setty and another. ….Petitioners Vs. $ P. Srinivasa Rao …. Respondent !Counsel for the Appellants: Sri E. Manohar Rao for Mr. Ghanta Rama Rao Counsel for the Respondent: Sri K. Pavan Kumar <Gist : >Head Note: ? Cases referred: HON’BLE SRI JUSTICE V. ESWARAIAH C.R.P. Nos. 5984, 5985 and 5986 of 2009 & 1058,1059 and 1060 of 2010 Common order: Heard the learned counsel appearing for the petitioners as well as the respondents. These six revision petitions arises out of a common order dated 24.8.2009 passed by the learned IV Additional District Judge, Visakhapatnam in C.M.A. Nos. 58,59,60,61,62 and 63 of 2006. The petitioners in all these revision petitions are the defendants in all the three Suits, viz., OS.No.558 of 2006, O.S. No.559 of 2006 and O.S. No. 565 of 2006 filed by R. Venkata Ramana; Pullagujjula Srinivasa Rao and A. Gurumurthy, respectively. The relevant C.M.As. and the I.As., in the Suits against which, the C.M.As. are filed are furnished in the following table: C.R.P.No.5984/09 Petitioners/ Defendants C.M.A.No.58/06 Appellant/ Plaintiff I.A.No.601/06 filed by plaintiff for injunction O.S.No.559/06 Plaintiff: P.Srinivasa Rao C.R.P.No.5985/09 Petitioners/ Defendants C.M.A N o . 61/06 Appellant/ Plaintiff I.A.No.601/06 filed by plaintiff for injunction O.S. No.558/06 Plaintiff:R.Venkata Ramana C.R.P.No.5986/09 Petitioners/ Defendants C.M.A N o . 62/06 Appellant/ Plaintiff I.A.No.603/06 filed by plaintiff for injunction O.S.No.565/06 Plaintiff: A.Gurumurthy C.R.P.No.1058/10 Petitioners/ Defendants C.M.A No. 59/06 Appellant/ Plaintiff I.A.No.626/06 filed by defendants for vacating the injunction O.S.No.559/06 P l a i n ti ff: P.Srinivasa Rao C.R.P.No.1059/10 Petitioners/ Defendants C.M.A No.60/06 Appellant/ Plaintiff I.A.No.625/06 filed by defendants for vacating the injunction O.S.No.558/06 P l a i n t i f f : R.Venkata Ramana C.R.P.No.1060/10 Petitioners/ Defendants C.M.A.No.63/06 Appellant/ Plaintiff I..A.No.624/06 filed by defendants for vacating the injunction O.S.No.565/06 Plaintiff: A. Gurumurthy As the injunction applications filed by the plaintiffs, who are respondents herein are similar, the trial Court dismissed the injunction applications by the common order dated 14.7.2006 against which the aforementioned C.M.As. are filed by the plaintiffs before the IV Additional District Judge, Visakhapatnam and the learned appellate Judge, by a common order dated 24.8.2009 allowed the C.M.A Nos. 58 to 63 of 2006 granting temporary injunctions in favour of the plaintiffs. The trial Court initially granted interim injunction on 19.4.2006 and on filing the applications to vacate the interim injunction order, the injunctions are vacated dismissing the injunction applications by order dated 14.7.2006, against which, the plaintiffs filed C.M.As. and during the pendency of the C.M.As., no interim orders are passed and ultimately the lower appellate Court allowed the appeals on 24.8.2009, granting temporary injunctions pending the suits. Aggrieved by the same, these revision petitions are filed by the defendants. It would suffice if the facts in C.R.P. No. 5984 of 2009 are narrated. For the sake of convenience, the parties are referred to as arrayed in the Suits. It is the case of the respondent-plaintiff in O.S. No.559 of 2006, that the respondent filed the aforementioned suit seeking permanent injunction in respect of the suit schedule property of an extent of Acs.1.66 1/3 cents out of Acs.5.00 acres in Survey No. 177 of Adivivaram Village, within the limits of Greater Visakhapatnam Municipal Corporation; that he purchased the said land by entering into agreement of sale-cum-general power of attorney with Sri Mantha Mallikarjuna Swamy and seven others by registering the said document dated 12.4.2006. The said Mantha Mallikarjuna Swamy and others succeeded the suit schedule property from their ancestors, who had enjoyed the possession as absolute owners and agreed to sell the same for a sum of Rs.15.00 lakhs and received the entire sale consideration and executed the said agreement of sale- cum-general power of attorney and delivered possession on 12.4.2006. The said land is a vacant land with some plantation and according to the plaintiff, he inspected the suit schedule property prior to execution of the said general power of attorney-cum-agreement of sale, which was marked as Ex.P1. It is stated that on 11.4.2006 when the plaintiff was levelling the land, the defendants 1 and 2 and others styling themselves as neighbouring land owners tried to interfere with their possession and with great difficulty, they resisted the act of the defendants and the defendants left the suit schedule property by saying that they will certainly interfere with the said property. It is stated that the cause of action arose on 12.4.2006 when they entered into agreement of sale-cum-general power of attorney and got the same registered. As per the agreement of sale-cum-general power of attorney, Ex.P1, the schedule property was said to be in possession and enjoyment of the vendors of the plaintiff and he agreed to purchase the said property for a sum of Rs.15.00 lakhs and the said property is described in Ex.P1 as Acs.1.66 cents out of Acs.5.00 in Survey No. 177 or 0.66 hectares of dry land bounded within specified boundaries. Pending the suit, the plaintiff filed I.A. No.602 of 2006 for grant of interim injunction. While opposing the said application, counter has been filed by the defendants, who are the petitioners herein stating that originally their ancestors late Dasari Sanyasayya purchased an extent of Acs.25.38 cents in Adivivaram Village covered by Survey No.177 on 26.4.1917 under registered sale deed bearing No. 376/1917 from one Mantha Varaha Narasimhayajulu, who was the father of the executants 1 and 2 and grand father of executants 3 to 8 of Ex.P1 document dated 12.4.2006. Since 1917, the purchaser and after his death, the defendants became the absolute owners, with all rights, including the right, title, possession and enjoyment of entire schedule property covered by the said sale deed. The father of the defendants, namely, late Somaraju sold Acs.8.25 cents in favour of some persons during his lifetime between 1958 to 1968 and ryotwari patta was also issued on 26.8.1963 by the Tahsildar, Visakhapatnam under the Inam Abolition and Conversion into Ryotwari Act, 1956 to the holders to the extent held by them. After his death, the defendants being the legal heirs of their father inherited the said property and are in continuous possession and enjoyment of the same with all rights. It is stated that their father purchased the said property from the father of the executants 1 and 2 of the G.P.A. and grand father of executants 3 to 8 of Ex.P1. Thereafter, the father of the defendants succeeded to the said property and after the death of their father, the defendants have succeeded to the property and are in continuous possession of the same. It is further stated that the defendants also sold an extent of Acs. 10.00 cents between 1980 to 2006 through the registered documents. On 12.4.2006, an agreement of sale-cum- General Power of Attorney was executed in favour of the plaintiffs and the vendors of the plaintiffs have no subsisting right, title and interest to execute the said Ex.P1 document and therefore the defendants have got issued a legal notice dated 13.4.2006 under Ex.R2 and the postal acknowledgment dated 17.4.2006 thereof, was marked as Ex.R3. The paper publication in Eenadu newspaper mentioning the above facts is marked Ex.R4. They also obtained encumbrance certificate showing the particulars of the alienation of the said land under Ex.R5, dated 17.4.2006 and thereafter , Ex.R26 dated 1.5.2006. Thus, it is the case of the defendants that the vendors of the plaintiffs very well know about the right, title and possession of the defendants, that the executants have no right, title or possession to enter into agreement of sale-cum-general power of attorney and therefore the plaintiffs have got no right and no right was passed in favour of the plaintiffs as their vendors have no right to pass on the title and therefore the question of delivering possession does not arise. The ancestors of the vendors of the plaintiffs never enjoyed the suit schedule property after Ex.R1, sale deed dated 26.4.1917. It is further stated that the defendants have paid the revenue continuously upto 1986 during which time the revenue was collected and therefore, the grant of ad-interim injunction was contrary to the cardinal principles of prima facie case, irreparable loss and the balance of convenience was not in favour of the plaintiffs to obtain ad-interim injunction. Therefore, they sought for vacation of the injunction, which was obtained by playing fraud, misrepresentation and suppressing the real facts basing on an unenforceable invalid agreement-cum- general power of attorney executed by their vendors, who have no right, possession or title. The learned Principal Senior Judge before whom all the three suits are pending, considered the point as to whether the plaintiffs have prima facie case, balance of convenience and irreparable loss and as such whether they are entitled to make absolute the interim injunction granted on 19.4.2006. The learned trial Judge considered the rival contentions and the documents filed by both the parties and held that except filing of a copy of agreement of sale-cum-G.P.A., no other documentary evidence in proof of their possession has been filed. Ex.P2 is the attested copy of the Survey and Settlement Register of Adivivaram Village issued by the Mandal Revenue Officer, Visakhapatnam. The other documents, Exs. P3,P4,P5,P6,P7 are all subsequent to filing of the suit. Ex.P3 is the field sketch of Adivivaram village issued by the Mandal Surveyor, Visakhapatnam. The photos and the corresponding negatives are marked as Ex.P4. Exs.P5 and P6 are the receipts issued by the Andhra Bank and the Rajiv Internet Village. Ex.P7 is the receipt issued by the Visakhapatnam Municipal Corporation towards new bore well Registration charges. Further, no single document relating to the period prior to Ex.P1, agreement of sale-cum-General Power of Attorney has been filed by the plaintiffs. Whereas the defendants have filed Ex.R1, copy of the Registration extract of the sale deed bearing No. 376/1917, executed in favour of Dasari Sanyasayya by Mantha Varaha Narasimha Yajulu, which is much prior to filing of the suit itself. The defendants have also filed a copy of the legal notice dated 13.4.2006 issued to the plaintiff, the postal acknowledgment thereof, dated 17.4.2006, and the paper publication in Eenadu city edition of Hyderabad dated 16.4.2006. They also filed Encumbrance Certificate, dated 17.4.2006 showing prior sale transactions. Further, to vacate the ad- interim injunction granted on 19.4.2006, the defendants have not only filed Exs. R1 to R5, but also the cist receipts, R6 to R25 relating to the years from 1936 to 1986. Apart from that they also filed the further Encumbrance Certificate,Ex.R26, dated 1.5.2006 showing previous sale transactions. The learned trial Judge was of the prima facie opinion that as the plaintiff has not proved the essential ingredients of prima facie case, balance of convenience and irreparable injury, he is not entitled for grant of ad-interim injunction under Order 39 Rules 1 and 2 of C.P.C., and accordingly vacated the ad-interim injunction granted on 19.4.2006 by order dated 14.7.2006. Aggrieved by the same, the plaintiff filed the aforementioned C.M.As. and the lower appellate Court while considering the point as to whether the plaintiffs-appellants are entitled for ad-interim injunction till the disposal of the suits, held that the father of the executants 1 and 2 and grand father of executants 3 to 8 of Ex.P1 were the original owners of the schedule property and the plaintiffs have attacked the validity of R1, sale deed bearing No. 376/1917. According to them, Ex.R1,the land in Survey No. 177 is a service inam for Archakatvam of Sri Varahalakshmi Narasimhaswamy, Simhachalam and the said land only is inheritable , but not alienable and that after the Inam Abolition Act came into force, the ryotwari patta was not granted. It is further stated that as per Ex.R1, the total extent is Acs.25.38 cents, whereas according to the defendants, ryotwari patta was grated on 28.8.1963 in favour of some persons under the Inam Abolition Act, but the said ryotwari patta was not filed before the Court. No documentary evidence evidencing the grant of ryotwari patta and the cist receipts, Exs.R6 to R25 are varied from 1936 to 1986 and scattered in between these periods without any continuity and they have not filed any piece of paper evidencing their possession subsequent to 1986. The suit is filed only in 2006. Ex.R1 indicates that the property was sold to discharge the mortgage debt of the vendor even earlier to the birth of his minor son on whose behalf also he executed the said sale deed in favour of the predecessors-in- title of the defendants and though the minor son has not challenged the said alienation made on his behalf by his father even three years after attaining the majority, but as the transaction entered is in violation of Section 8(2) of Hindu Minority and Guardianship Act, is null and void and at the instance of the minor and avoidance of transaction in violation of the said provision, a suit must be filed by a minor, therefore, within the period prescribed under Article 60 of the Limitation Act. But though the minor had not questioned that the said inam land is not alienable, but it is inheritable and therefore it should not have been said that the suit property could have been alienated prior to 1956. Relying on various judgments with regard to the minor’s property and the cardinal principles for grant of interim injunction, while disbelieving the legality and validity of the documents filed by the defendants, the lower appellate Court held that as per Ex.P1, General Power of Attorney-cum-sale deed, possession follows title and as the said transaction of Ex.P1 is not disputed and Ex.R1 is much prior to Inam Abolition Act and as per third party affidavit, possession of the plaintiff is indicated on the date of filing of the suit and as per Ex.P4, photos show that the plaintiff is in possession. But, I am of the opinion that the learned appellate Judge relying on the subsequent documents after filing of the suit, i.e., Ex.P4, photos, which were taken afterwards and Ex.P5, Andhra Bank Receipt and Ex.P7 receipt book on 7.5.2006 and erroneously held that the plaintiff is prima facie in possession of the suit property and the balance of convenience is in favour of the plaintiff for grant of injunction and that if the injunction is not granted, the plaintiff will sustain irreparable loss and set aside the order of the trial Court and granted injunction till the disposal of the suits. Hence, the present revision petitions. I have considered the rival contentions. As per Ex.R1, Sale Deed, it is clearly indicated that the father of executants 1 and 2 and grand father of executants 3 to 8 sold the mortgaged property in favour of the grand father of the defendants to discharge the mortgage debt. Originally there was a registered mortgage deed in respect of the said property in 1914 and the property was in possession of the ancestors of the defendants from 9.12.1914 onwards in respect of property, i.e., Acs. 25.38 cents. The total extent of property, i.e.,Acs.25.38 cents in Survey No. 177 bearing (patta) T.D.no. 24 is in two pieces, one is Acs.5.00 and another is Acs.20.38 cents totalling to Acs.25.38 cents. Though the learned appellate Judge held that the inam land is not alienable, but only inheritable, but, the relevant legal position as on the date of Ex.R1, dated 26.4.1917 was not at all discussed by him. According to the defendants, there was no legal objection or restraint for executing R1, sale deed, as the mortgage debt was not discharged. Further it is stated that the ancestors of the defendants have initially sold an extent of Acs.8.25 cents and thereafter Acs.10.00 as reflected in the Encumbrance Certificates Ex.R25 and R26, whose recitals also indicate that the patta No.24 is in Survey No. 177. Therefore, it is incorrect to state that the cist receipts do not contain any patta or particulars of the property. According to R1, sale deed-cum-general power of attorney, the total extent of land is only Acs.25.00. But, however, after selling Acs.25.38 cents, it is not known as to how the vendors have retained Acs.5.00. When the very right of the vendors to execute the sale deed-cum-general power of attorney itself is in clouds and when there is documentary evidence to establish that the defendants, their father and grand father sold certain extent of land covered by Ex.R1 and they made lay outs and the encumbrance certificate shows that the lands were alienated in favour of plot owners, it cannot be said that the plaintiffs established their possession as on the date of the filing of the suits. On a perusal of the various documents on record, I am of the opinion that the plaintiffs have miserably failed to establish their possession as on the date of the filing of the suits. The plaintiffs have not filed a single document relevant to prove either their possession or the possession of their vendors. The lower appellate Court erroneously and without any justification has set aside the well considered judgment of the trial court and hence the order of the lower appellate Court is liable to be set aside. Accordingly, the impugned common order of the lower appellate Court in C.M.A. No.58 of 2007 and batch, dated 24.8.2009 is set aside and the injunction applications stands dismissed. It is needless to mention that the trial Court shall dispose of the suits, independently, without being influenced by any of the observation made by this Court. The revision petitions are accordingly allowed with costs. _________________ V.ESWARAIAH,J Date: 28.1.2011 Note: L.R. Copy to be marked. pnb