IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTYFOURTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.654 of 2011 Between: G. Ramesh Kumar Reddy and another .. Appellants AND N. Sudarshan .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree in A.S.No.6 of 2009 on the file of the Court of Senior Civil Judge, Wanaparthy, dated 14-02-2011 by which the decree of the suit without costs granting a permanent injunction in favour of the plaintiffs against the defendants by the judgment dated 24-04-2009 in O.S.No.234 of 2008 on the file of Court of Junior Civil Judge, Wanaparthy, was confirmed and the appeal was dismissed without costs. The factual background for the dispute is that the plaintiff sought for permanent injunction against the defendants in respect of Ac.3.33 guntas in Sy.No.614 of Rangapur village of Pebbair Mandal claiming to be the owner and possessor having purchased the land under a registered sale deed dated 19-08-1996 from the original owner Kalavathamma. He claimed to have been recorded as such in the revenue records and to have been issued title deed and pattadar pass book. The plaintiff alleged an attempt to interfere with his possession by the defendants on 04-06-2005 resulting in the suit. The defendants 1 and 2 resisted the suit contending that they are the owners and possessors of Ac.7.26 guntas in Sy.No.614 including the suit land to which they succeeded to Smt. Kalavathamma related to them. After the death of her husband, Kalavathamma was staying with the defendants along with her mother and she had no issues. In her last days, as she was looked after by the elder brother of the 1st defendant, who is the senior paternal uncle of the 2nd defendant, she developed affection towards the family of the defendants and executed a Will in favour of Prabhakar Reddy bequeathing her entire lands located in Sy.No.614 to an extent of Ac.7.26 guntas on 21-04-1972 in the presence of G. Loak Reddy, D. Ayyanna, Boggu Ramaswamy and Karre Kistanna. Kalavathamma died on 24-03-1994 and the Mandal Revenue Officer issued her Death Certificate. Prabhakar Reddy succeeded to the property and he could not submit the Will and get his name mutated in the revenue records due to unforeseen complications. The plaintiff colluded with the Village Administrative Officer, B. Sattenna and Sivaiah and forged the registered sale deed impersonating Kalavathamma. The execution of the sale deed on 19-08-1996, when Kalavathamma died on 24- 03-1994, does not arise and Kalavathamma was a signatory and not a marks woman as shown in the sale deed. The forged and fabricated sale deed does not confer any right on the plaintiff and the Revenue Divisional Officer set aside the orders passed by the Mandal Revenue Officer on proof of the ownership and possession of the defendants and their family members. Though the Joint Collector stayed the orders of the Revenue Divisional Officer, the plaintiff is not entitled to any relief in respect of the land in the possession and enjoyment of the defendants. The trial Court framed issues about the entitlement of the plaintiff to the relief of permanent injunction and during trial, it examined PWs.1 to 3 and DWs.1 to 6 and marked Exs.A.1 to A.13 and B.1 to B.7. In its judgment dated 24-04-2009, the trial Court opined that in the suit for a bare injunction, title to the property could be gone into only incidentally and what is to be seen is as to who was in possession of the suit land as on the date of filing of the suit. The trial Court opined that the order of the Revenue Divisional Officer basing on the death certificate of Kalavathamma amounted to cancellation of execution of Ex.A.1 sale deed, which could have been done only by a civil Court. The trial Court also opined that Exs.A.12 extract of the death register and Ex.A.13 death certificate do not contain the name of the informant and other particulars and considered that the mystery surrounding the date of death can be adjudicated in an appropriate suit before an appropriate forum where declaration of title is sought. The trial Court also opined that it will not be appropriate to render a finding about either the genuineness of Ex.A.1 sale deed or the genuineness of Ex.B.1 Will deed. The trial Court also considered Exs.A.2 and A.3 pattadar pass book and title deed, Ex.A.5-land revenue receipt, Ex.A.6-extract of Record of Rights and Exs.A.7 to 10-Pahanaies for the years 2001-2002 to 2005-2006 to be showing the plaintiff as the owner and possessor of the suit land and in view of the orders passed by the Joint Collector in Ex.A.11 setting aside the orders of the Revenue Divisional Officer under Ex.B.5, the order of the Mandal Revenue Officer in Ex.A.2 mutating the name of the plaintiff in respect of the said land is in force. The trial Court also stated that the documentary evidence is in favour of the plaintiff showing his possession sufficient for a suit for injunction in the absence of any revenue record showing the possession of the defendants. It was noted that the possession of the defendants would have been entered in the revenue records had they been in possession and the trial Court, referring to the various precedents cited before it in this regard, concluded that as the issue of title is left open for proper adjudication before an appropriate forum in appropriate proceedings, the proof of possession by the plaintiff makes him entitled to relief of permanent injunction. The consequent decree of the suit was the subject of challenge in A.S.No.6 of 2009 in which the First Appellate Court delivered the impugned judgment referring to the background to the first appeal in considering whether the judgment and decree of the trial Court are liable to be set aside. The First Appellate Court, after extracting the evidence produced before the trial Court, opined that the name of the informant of the death of Kalavathamma was not recorded and the signature of the informant was not obtained with reference to Exs.A.12 and A.13 due to which no credibility can be attached to Exs.A.12 and A.13. The First Appellate Court also agreed with the trial Court that the orders of the Mandal Revenue Officer under Ex.A.12 are in force due to the stay by the Joint Collector of the orders of the Revenue Divisional Officer and while observing that Ex.B.1-Will was not acted upon, the First Appellate Court also considered that the doubts about Ex.A.1 registered sale deed or Ex.B.1-Will deed have to be thrashed out, if the parties seek declaration of title over the property in appropriate proceedings. The First Appellate Court also noted that in the interlocutory proceedings also an interim injunction was granted in favour of the plaintiff on merits which was confirmed in appeal and modified to a status quo order in the Civil Revision Petition. That also was considered to be a circumstance showing the maintenance of possession of the plaintiff and as Exs.A.6 (A.7) to A.10 Pahanies show the possession of the plaintiff and there was no revenue record showing the possession of the defendants, the First Appellate Court agreed with the trial Court. The First Appellate Court further analyzed the documents for the defendants and opined that the entries in Exs.B.2 and B.3 do not tally with the claim with reference to Ex.B.1-Will and refusing to go into the question of validity of Ex.A.1-registered sale deed, the First Appellate Court also based its conclusion on Exs.A.7 to A.10-Pahanies leaving open the question of title for proper adjudication in appropriate proceedings. Consequently, the appeal was also dismissed without costs. The unsuccessful defendants approached this Court with this second appeal contending that when Kalavathamma died on 24-03-1994, the registered sale deed dated 19-08-1996 could not have been true and any possession under such a defective title could not have been taken into consideration for granting the permanent injunction. When the defendants established their title and possession, the suit ought not to have been decreed. The defendants claimed that the fraud behind the registered sale deed should have overweighed any weakness in the case of the defendants. The Pahanies or other revenue records and the pending proceedings before the Joint Collector also should have been taken into consideration. Therefore, the defendants contended that substantial questions of law arise about grant of permanent injunction in respect of prima facie defective title of the plaintiff, the grant of injunction solely on the ground of absence of names of the defendants in the revenue records, the orders of the Revenue Divisional Officer being ignored merely on the ground of stay and the grant of permanent injunction on the basis of fraudulent documents. Sri A. Santhosh Kumar, learned counsel for the appellants and Sri V. Hanumantha Rao, learned counsel for the respondents are heard at the stage of admission. The point for consideration is whether there are any substantial questions of law that can be formulated to enable entertainment of the second appeal. The rationale for both the Courts below not going into the question of title over the suit schedule property with reference to Ex.A.1-registered sale deed or Ex.B.1-Will is that this suit is one for bare injunction simpliciter wherein the question of determination of title is only incidental. The Courts opined obviously that determination of title is not a prerequisite for considering the entitlement or otherwise of the plaintiff for a permanent injunction in respect of the suit property. In considering the question of possession, the trial and First Appellate Courts relied on Ex.A.3-Pattadar passbook, Ex.A.4-title deed, Ex.A.5-land revenue receipt, Ex.A.6-copy of the Record of rights and Exs.A.7 to A.10-Pahanies in respect of four years probablising the possession of the plaintiff. As against the said entries in the revenue records in favour of the plaintiff, none of the documents of the defendants relate to the question of possession and enjoyment of the suit property by the date of the suit. Exs.B.2 and B.3-ryot pass books relate to Kalavathamma and Sarojamma and further specified G. Prabhakar Reddy and G. Sampathkumar Reddy to be the respective occupiers of the lands covered by Exs.B.2 and B.3 by the time of their entries. The entries in Exs.B.2 and B.3 have no relevance to the determination of the question of possession as on the date of the suit. The trial Court and the First Appellate Court concluding that there was positive evidence for the plaintiff through Exs.A.3 to A.10 in support of the plaintiff’s claim of possession and enjoyment by the date of the suit to contradict which there was no such independent evidence for the defendants is a matter based on record and the oral evidence of PWs.1 to 3 and DWs.1 to 6 did not run counter to the probabilities arising out of the documents on record in any manner. The emphasis of the defendants in the unacceptability of the entries in the revenue records in favour of the plaintiffs is more with reference to the alleged death of Kalavathamma prior to the execution of Ex.A.1-registered sale deed and with further reference to the proceedings pending before the Joint Collector in respect of the entries in the revenue records in favour of the plaintiff. Insofar as the entries in the revenue records in favour of the plaintiff are concerned, the findings of the Mandal Revenue Officer giving effect to such mutation continued to be operative in view of the stay of the orders of the Revenue Divisional Officer setting them aside in the appeal pending before the Joint Collector subject to the final determination of the dispute before the revisional authorities. Ultimately, as of now, the trial and First Appellate Courts relying on the entries in the revenue records as they stand now, cannot be considered illegal or unreasonable. Insofar as the death of Kalavathamma prior to Ex.A.1- registered sale deed is concerned, it is true that Exs.A.12 and A.13/B.4 show that Kalavathamma might have died on 24-03-1994, while Ex.A.1-registered sale deed is said to have been executed by her on 19-08-1996. However, the trial Court and the First Appellate Court have reasoned that the contents of Exs.A.12 and A.13 cannot be considered to have been incorporated in accordance with the prescribed procedure in the absence of the name and particulars of the informant and his signature in the register. The defendants also further relied on their allegations that Kalavathamma was a signatory and not a marks woman as shown in Ex.A.1. But, no document, which was proved to have been executed by Kalavathamma with her signatures, has been tendered or proved in evidence. While it is true that strong suspicions arise on the genuineness of Ex.A.1-registered sale deed in the light of the death of Kalavathamma apparently being recorded in the register of Births and Deaths as 24-03-1994, but the opinion of the Courts below is that Ex.A.1- registered sale deed could not have been considered to be non est or null and void in the absence of any appropriate relief being sought for in respect of Ex.A.1 by the defendants in the present suit or in any other appropriate legal proceeding. Even if Ex.A.1 were to be kept out of consideration, so far as the relief of permanent injunction is concerned, confining the consideration to the question of proof of possession and enjoyment, still the success of the plaintiff on the basis of the documents produced by him cannot be considered to be unreasonable. The absence of determination of the dependability of Ex.A.1 in this suit cannot be considered fatal to the adjudication as the question of title need not be compulsorily decided in the mere suit for injunction. It is true that the entries in the revenue records might have been consequential to Ex.A.1 and if Ex.A.1 itself were to be ignored, the consequential entries in the revenue records might not be deserving any credibility, but if the truth, validity and binding nature of Ex.A.1 need not be gone into for the purpose of deciding this suit, any disability to the entries in the revenue records cannot be attached as they stand now. While it is well settled that in the absence of any other evidence, the entries in the revenue records and payment of land revenue may afford prima facie proof of possession, the fact that there was absolutely no documentary evidence to show the present possession of the defendants over the suit land also appeared to have influenced the findings of the Courts below. Though the plaintiff could not have succeeded on the weakness of the defendants alone, taking the weakness of the defendants also as one of the circumstances that probablises the acceptability of the plaintiff’s version cannot be considered wrong and hence, the conclusions of fact by the Courts below about the possession and enjoyment of the plaintiff by the date of the suit entitling him to permanent injunction cannot be considered to involve any substantial question of law on its own. However, it is to be clarified that what has been decided in this suit is only the question of possession and enjoyment of the suit property by the date of the suit and as such possession and enjoyment probablised to be with the plaintiff was not shown to be illegal or unlawful in any manner in the absence of the Courts below going into the question of the truth, legality and validity of Ex.A.1-sale deed, that could have safely formed the basis for grant of permanent injunction. Any defect in the title of the plaintiff need not have been presumed without going into the aspects relating to the due execution of Ex.A.1 and any fraud in the execution of Ex.A.1 could not have been a matter of surmise and conjecture in the present suit. However, it has to be noted and clarified that the right of the plaintiff or the defendants to seek declaration of title in respect of the suit land on the basis of Ex.A.1-registered sale deed or Ex.B.1-Will deed remained unadjudicated in the present suit. The right of the defendants, if they succeed in any appropriate proceedings, to have their title declared in respect of the suit property, to further seek recovery of possession also was not the subject matter of adjudication in this suit or the First Appeal. The proceeding before the joint Collector, which is stated to be pending, should also be determined on its own merits in accordance with law on the material to be placed before him by the parties without reference to the judgments of the trial Court and the First Appellate Court in this litigation as the adjudication by the trial and First Appellate Courts is purely confined to the question of possession and enjoyment of the suit property as on the date of the suit, which was determined with reference to the entries in the revenue records during the relevant time, which were obviously based on the title claimed by the plaintiff under Ex.A.1-registered sale deed. Therefore, while the defendants should fail in the second appeal also, their rights to take recourse to appropriate legal proceedings permitted by law in respect of the suit property and the determination of the proceedings before the Joint Collector independent of the result of this suit and the appeal therefrom, should remain safeguarded by the above clarification. Subject to the above clarification, the Second Appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-11-2011 Ksn