HON'BLE SRI JUSTICE P.S. NARAYANA C.R.P.No.4562 of 2009 Date : 13-11-2009 Between: G.Yella Reddy and others .. Petitioners And Dr.A.Thyagi and others .. Respondents HON'BLE SRI JUSTICE P.S. NARAYANA C.R.P.No.4562 of 2009 ORDER: 1. This Civil Revision Petition is coming up for admission. 2. 3rd respondent filed counter affidavit. 3. Respondents 1 and 2 also are being represented by the respective Counsel. 4. Sri Gangaiah Naidu, the learned Senior Counsel representing the Revision petitioners had taken this Court through the reasons recorded in I.A.No.1597/2008 in O.S.No.593/2008 on the file of Principal Senior Civil Judge, Kurnool and also the reasons recorded by the learned I Additional District Judge, Kurnool in C.M.A.No.18/2009 and would maintain that the appellate Court had erred in allowing the C.M.A. The learned Counsel also pointed out to the documentary evidence placed by the respective parties and would maintain that in the light of Exs.A-1, A-2, coupled with the other documents Exs.A-3, A-4 to A-13 as well, since prima facie case had been established and balance of convenience being in favour of the Revision petitioners, the appellate Court totally erred in reversing the well considered order of the Court of first instance. The learned Senior Counsel also would further maintain that even if Exs.B-1, B-4 to B-6, B- 7, B-8,B-9, -10, B-11 and B-12 to be considered, these documents being pattadar pass books, title deeds, registered wills and the death certificate and the certified copy of partition and certified copy of gift settlement deed, these may not be of any help to prove the factum of possession and hence in the light of the clear recitals made in Ex.A-1 coupled with the bunch of electricity bills Ex.A-3 and the affidavit given by 3rd defendant Ex.A-5 and further Exs.A-4, A-6 and A-7 cist receipt, till disposal of the suit, temporary injunction to be granted by allowing the present Civil Revision Petition. 5. Per contra Sri P.Veera Reddy, M/s.S.Nanda, and Sri C.B. Ram Mohan Reddy, Counsel representing the respondents 1, 2 and 3 had taken this Court through the prima facie findings which had been recorded by the appellate Court and would maintain that in the light of the convincing reasons recorded by the appellate Court, this is not a fit matter to be interfered with under Article 227 of the Constitution of India. The learned Counsel would further maintain that the suit itself was filed after a long lapse of about 15 years after the alleged agreement of sale and even if the part payments are to be considered, the suit is hopelessly barred by limitation. The learned Counsel also would maintain that the specific stand taken by the respondents in relation to Ex.A-1 also to be taken note of. The Counsel also would point out that even otherwise, Ex.A-1 is inadmissible and for considering the aspect of prima facie, this aspect also may have to be taken into consideration and apart from this aspect of the matter, in the light of the convincing and elaborate reasons recorded by the appellate Court, the Civil Revision Petition to be dismissed. The Counsel also placed reliance on certain decisions to substantiate their submissions. 6. Heard the Counsel, perused the order made in C.M.A.No.18/2009 on the file of I Additional District Judge, Kurnool which is under challenge in the present Civil Revision Petition under Article 227 of the Constitution of India and also the order made by the Court of first instance, the learned Senior Civil Judge, Kurnool in I.A.No.1597/2008 in O.S.No.593/2008. 7. The Revision petitioners filed the suit for the relief of specific performance and also filed an application I.A.No.1597/2008 praying for temporary injunction. The Court of first instance at para-4 formulated the following Points for consideration : (1) Whether the petitioners are entitled to temporary injunction as prayed for ? and (2) To what relief ? The learned Principal Senior Civil Judge, Kurnool after recording reasons from paras 5 to 19 referred to Exs.A-1 to A-13, B-1 to B-12 and ultimately came to the conclusion that the temporary injunction as prayed for to be granted till disposal of the suit. The learned Principal Senior Civil Judge, Kurnool also had relied on certain decisions while recording the prima facie findings. Aggrieved by the same, the unsuccessful respondents in the said application/defendants preferred C.M.A.No.18/2009 on the file of I Additional District Judge, Kurnool and the appellate Court after formulating the Point for consideration at para-9, recorded reasons commencing from paras 10 to 36, discussed all the documents and also relied on certain decisions and ultimately came to the conclusion that the prima facie findings recorded by the Court of first instance being unsustainable, the C.M.A. to be allowed and accordingly the order of temporary injunction granted by the Court of first instance was set-aside by allowing the C.M.A. The learned I Additional District Judge further observed that the costs would follow the result of the suit. Aggrieved by the same, the present Civil Revision Petition had been preferred. 8. The principal contention of Sri Gangaiah Naidu, the learned Senior Counsel representing the Revision petitioners is that Ex.A-1 is a genuine transaction and the Revision petitioners were put into possession of these lands and they had developed these lands and hence the approach adopted by the appellate Court being unsustainable, the same to be set-aside. The learned Senior Counsel also pointed out to the specific grounds raised in this regard. 9. For the purpose of convenience, the parties would be referred to as “plaintiffs” and “defendants” hereinafter. 10. It is the case of the plaintiffs that the petition schedule property belongs to one A.Naagoji Rao and his wife M.Jayamma. The plaintiffs purchased the same under Ex.A-1 agreement of sale dd21-7- 1993 for Rs.2,50,000/- and paid the sale consideration in three instalments on 21-7-1993, 19-7-1994 and 23-7-1995 and he vendors delivered the possession of the petition schedule property on the same day i.e., 21-7-1993. The plaintiffs dug four bore wells and obtained electric service connection and paid bills and spent huge amounts to improve the petition schedule property. Having confidence in the vendors, they did not obtain regular sale deeds. After the death of vendors they approached the defendants, who are legal heirs of the vendors. The defendants failed to execute regular sale deed. The plaintiffs got issued legal notice on 30-11-2008 and filed the suit on 15-12-2008. 11. The case of the defendants is that the defendants 1 to 5 acquired the petition schedule property under Ex.B-7 and B-8 wills dated 8-2-1982 from their parents and are in possession and enjoyment of the same through the 3rd defendant. They reside away from the vendors due to employment. One T.Sunki Reddy, V.R.O. was close to their parents managing their parents’ bank accounts. Taking advantage of the old age, sickness of the parents of defendants and the entrustment of house keys to him by their parents while in hospital and the absence of the defendants in the village, the said V.R.O. managed to forge and fabricate Ex.A-1 agreement of sale and manipulated the bank accounts and got created revenue records. The defendants and their parents got the six pattadar pass books on 30-10- 1996 issued by the Tahsildar concerned. Ex.A-1 agreement of sale dated 21-7-1993 is insufficiently stamped and unregistered. The plaintiffs 1 to 4 executed a partition deed on 5-2-2008 in respect of the item Nos.I, III and IV of petition schedule property in favour of one T.Nageswara Reddy, who in turn executed a gift deed dated 8-2- 2008 in favour of his wife. The tombs of vendors are erected and still in existence and the defendants are performing yearly ceremonies to their parents in Item No.3 of petition schedule property in Nagalapuram. The defendants 1 to 5 are in continuous possession and enjoyment of the petition schedule property. The plaintiffs 1 to 4 did not come to court with clean hands. 12. The documents relied on by the respective parties are as hereunder:- For petitioners/plaintiffs : Ex.A-1 – Agreement of sale dated 21-7-1993 executed by Arepati Nagji Rao and his wife late Smt.Mungara Jayamma in favour of G.Yella Reddy and three others (subject to objection) Ex.A-2 – Registration copy of sale deed dated 28-11-1978 executed by Sarveswara Reddy and others in favour of A.Nagoji Rao Ex.A-3 – Bunch of Electricity bills Ex.A-4 – Certificate issued by Assistant Engineer, APCPDC Limited, Operations, Gudur Ex.A-5 – Affidavit given by the third d dated 28-1-1993 Ex.A-6 – Adangal Extract for the Fasli 1406 (1997) (subject to objection) Ex.A-7 Cist Receipt dated 23-6-1997 Ex.A-8 – Office copy of legal notice dated 30-11-2008 Ex.A-9 – Postal receipts Ex.A-10 – Served Postal Acknowledgements – three Ex.A-11 – Notice copy of the petitioners from the Tahsildar, Gudur dated 18-12-2008 Ex.A-12 – W.P.No.553/2009 and interim order passed by the High Court of A.P. dated 21-1-2009 Ex.A-13 – Withdrawing notice dated 29-1-2009 issued by the Tahsildar, Gudur to the petitioners. For respondents/defendants Ex.B-1 – Pattadar Pass Book of A.Uma Maheswara Rao Ex.B-2 – Title deed of A.Dharma Rakshak Ex.B-3 – Title deed of A.Deenabandu Ex.B-4 – Title deed of A.Thyagi Ex.B-5 – Title deed of A.Asha Devi Ex.B-6 – Title deed of A.Nagoji Rao Ex.B-7 – Registered Will dated 8-1-1992 Ex.B-8 – Registered Will dated 8-1-1992 Ex.B-9 – Death certificate dated 8-5-1998 Ex.B-10 – Death certificate Ex.B-11 – Certified copy of partition dated 15-2-2008 Ex.B-12 – Certified copy of gift settlement deed dated 8-2-2008 executed by T.Nageswara Reddy in favour of Sumitramma 13. Ex.A-1 is an insufficiently stamped document and unregistered as well. I n Telugu Kishan Mohan and another Vs. Smt.Boggula Padmavathi and others [1] this Court observed at paras 29, 30, 31 and 35 as hereunder:- “The recitals of the document in controversy already had been referred to supra. Since, this Court is of the opinion that the document in question is an unregistered relinquishment deed, the same is not admissible in evidence for want of registration under Section 17 of the Indian Registration Act. It is needless to say that the document is inadmissible in evidence for want of registration inasmuch as the purpose for which the document is being relied upon is the principal purpose not for any collateral purpose. The question of sending such document to the Revenue Divisional Officer, Nandyal for levying of stamp duty and penalty also may not arise. The question of sending such document to the Director of Forensic Science Laboratory, Hyderabad for the purpose of comparison also would not arise. However, the pf appears to have filed an application I.A.No.78 of 2008 under Order 13 Rules 3 and 6 of the Code praying for rejection of relinquishment deed dated 12-2-2008. The said application was allowed. Order 13 of the Code deals with production, impounding and return of documents. Order 13 Rule 3 of the Code dealing with rejection of irrelevant and inadmissible documents specifies that the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible recording the grounds of such rejection. It is not only the power of the Court but it is the duty of the Court to reject the document if it is satisfied that the same is irrelevant or inadmissible in evidence. Order 13 Rule 6 of the Code dealing with endorsement on document rejected as inadmissible in evidence, reads as hereunder:- “Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in Clauses (a), (b) and (c) of Rule 4, sub-rule (1) together with a statement of its having been rejected and endorsement shall be signed or initialled by the Judge”. In the light of the clear language of Order 13 Rules 3 and 6 of the Code referred to supra, the order made by the learned Judge allowing the application I.A.No.78 of 2008 also cannot be found fault.” In the said decision (1) supra, the following decisions had been referred to : Surajmal Vs. Motiram and others [2], T.Arthi Vs. K.Anand Reddy and others [3], Sanjeeva Reddi Vs. Johan Putra Reddi [4], Shaik Khadaru Masthan Vs. Sayyed Fathimun Bee [5], Dina Ji and others Vs. Daddi and others [6], A.C. Lakshmipathy and another Vs. A.M. Chakrapani Reddiar and others [7], Javer Chand and others Vs. Pukhraj Surana [8], J.J. Lal Pvt. and others Vs. M.R. Murali and another [9], Vajrala Ramesh and another Vs. Vajrala Narayana Setty and another [10], Gopal Das and another Vs. Sri Thakurji and others [11], Sait Tarajee Khimchand and others Vs. Yelamarti Satyam and others [12] and Nori Srirama Sastri Vs. Nori Lakshmidevamma and others [13]. 14. Reliance also was placed on Avinash Kumar Chauhan Vs. Vijay Krishna Mishra [14] wherein the Apex Court at para-22, 23 and 24 observed : “We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The Court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court, therefore, was empowered to pass an order in terms of Section 35 of the Act. The contention of the learned Counsel for the appellant that the document was admissible for collateral purpose, in our opinion, is not correct. In Bondar Singh Vs. Nihal Singh (2003) 4 S.C.C. 161 this Court was not concerned with the provisions of the Act. Only interpretation of the provisions of the Registration Act, 1908 was in question. It was opined at para- 5 : “The main question, as we have already noted, is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor-in- interest of the plaintiffs, is an admitted document in the sense its execution is not in dispute. The only defence set up against the said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of the plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorised. In the present case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible (See: Pandey Oraon Vs. Ram Chander Sahu – 1992 Supp.(2) SCC 77, Amrendra Pratap Singh Vs. Tej Bahadur Prajapati (2004) 10 SCC 65). The Registration Act, 1908 provides for such contingency in terms of the proviso appended to Section 49 thereof, which reads as under:- 49. Effect of non-registration of documents required to be registered. – No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall – (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument”. 15. Further, strong reliance was placed on Mandali Ranganna and others Vs. T.Ramachandra and others [15] wherein the Apex Court at para-18 observed : “While considering an application for grant of injunction the Court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The Courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the Courts is imperative. Contentions raised by the parties must be determined objectively”. 16. This Court is not inclined to express any opinion relating to genuineness or otherwise of Ex.A-1 at this stage since the suit is pending disposal. But however, the fact that the suit had been instituted after a long lapse of 15 years for the relief of specific performance of agreements, is not in serious controversy. The specific plea taken by the defendants is that Ex.A-1 is a forged or a fabricated document and the fact that Ex.A-1 is insufficiently stamped and an unregistered document also is not in serious controversy. Further, even the other documents placed before this Court cannot be taken as well substantiating the stand taken by the Revision petitioners that in pursuance of Ex.A-1 the Revision petitioners have been in possession and enjoyment of these properties till the date of institution of the suit. By the stray documents placed before this Court like Ex.A-3, Ex.A-7, it cannot be said that the Revision petitioners are able to make out a strong prima facie case. This Court is not expressing this opinion in relation Ex.A-1 for limited purpose of deciding whether on the strength of such document, can it be said that a strong prima facie case had been made out by the Revision petitioners/plaintiffs and whether on the strength of such documents, the Revision petitioners/plaintiffs would be entitled to temporary injunction as prayed for during the pendency of the suit. This Court may have to necessarily say that it cannot be said that in the light of these documents, the petitioners are able to make out a strong prima facie case. 17. This Court also had carefully considered Exs.A-2, A-4, A-5, A-6, A-8, A-9, A-10, A-11, A-12 and A-13 as well. It is true that Ex.B-1 is pattadar pass book. Exs.B-2 to B-6 are title deeds. Exs.B-7 and B-8 are registered wills, Exs.B-9 and B-10 are death certificates and Exs.B-11 and B-12 are certified copies of partition and gift settlement deed. It is no doubt true that certain observations had been made by the appellate Court doubting a particular stand taken even by the respondents as well. It is needless to say that these aspects may have to be thoroughly gone into at the appropriate stage of final disposal of the suit. Certain findings had been recorded by the appellate Court relating to the tombs as well. May be this is only a probable circumstance which weighed with the appellate Court while reversing the order made by the Court of first instance. 18. On a thorough examination of all the facts and circumstances, this Court is satisfied that this is not a fit matter to be interfered with under Article 227 of the Constitution of India and accordingly the Civil Revision Petition shall stand dismissed at the stage of admission. However, it is made clear that since the findings, if any, recorded by this Court being only prima facie case findings for the disposal of the Civil Revision Petition, the suit to be disposed of by the learned Principal Senior Civil Judge, Kurnool, not being influenced by any of the observations made herein. No costs. _____________________ Justice P.S. Narayana Date : -11-2009 AM [1] 2009(5) ALT 132 [2] 2002(6) ALT 552 [3] 2006(5) ALT 42 [4] 1972(1) ALT 232 = AIR 1972 A.P. 373 [5] 2007(6) ALT 220 [6] AIR 1990 S.C. 1153 [7] AIR 2001 Madras 135 [8] AIR 1961 S.C. 1655 (V 48 C 312) [9] AIR 2002 S.C. 1061 = 2002(2) ALT 242 (DNSC) [10] 2005(3) ALT 1 [11] AIR (30) 1943 Privy Council 83 [12] AIR 1971 S.C. 1865 [13] AIR 1957 A.P. 60 [14] (2002) 2 S.C.C. 532 [15] AIR 2008 S.C. 2291