HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.M.A.No.682 of 2014 Date : 1-8-2014 Between :
Karnam Narsimhulu and another .. Appellants And Chakali Jangaiah and others .. Respondents Counsel for appellants : Sri K. Goverdhan Reddy Counsel for respondents : Sri K. Govind The Court made the following:
JUDGMENT:
At the interlocutory stage, the Civil Miscellaneous Appeal is heard and being disposed of with the consent of the learned Counsel for the parties.
The appellants filed O.S.No.84/2013 on the file of the learned Principal District Judge, Mahabubnagar, for permanent injunction restraining the respondents from interfering with their possession of the suit schedule property. They have also filed I.A.No.1464 of 2013 in the said suit for temporary injunction against the respondents in respect of the suit property. It is the pleaded case of the appellants that respondent No.1 was the owner of the suit schedule property; that he has filed O.S.No.116/1987 on the file of the learned district Munsif, Shadnagar, for declaration of his title and permanent injunction in respect of the suit property against respondent Nos.2 to 5; that by Judgment and decree dated 4-10-1996 the said Court has decreed the suit; and that feeling aggrieved by the said Judgment and decree respondent Nos.2 to 5 have filed A.S.No.60/1996 on the file of the learned V Additional District Judge, Mahabubnagar, which was dismissed by Judgment and decree dated 31-3-2004. During the pendency of the said appeal, the appellants have purchased the suit schedule property from respondent No.1 under registered sale deed dated 12-6-2002. The appellants pleaded that in pursuance of the said sale deed, they have been in possession and enjoyment of the property. It is also their pleaded case that in S.A.No.862 of 2004 filed by respondent Nos.2 to 5, respondent No.1 has fraudulently entered into a compromise with the other respondents and got a compromise award passed before the Lok Adalath of this Court on 3-2-2011, as per which respondent No.1 has agreed to handover the possession of the property to respondent Nos.2 to 5. The appellants have thus pleaded that being bonafide purchasers for valuable consideration, they are in physical possession of the property.
Respondent Nos.2 to 5 have contested the I.A. by filing a counter-affidavit. They have asserted that in pursuance of the award of compromise they are in physical possession of the property.
In support of their plea, the appellants have filed Exs.A-1 to A-17 and Exs.B-1 to B-4. On a consideration of the oral and documentary evidence, the lower Court has dismissed the I.A.
At the hearing, the learned Counsel for the parties addressed their submissions on the issue of title to the property, besides the aspect of possession.
In my opinion, in a suit for permanent injunction, the Court is mainly concerned with physical possession of the property while in appropriate cases, a finding on title can be rendered as an ancillary or incidental issue. A perusal of the record shows that the appellants have filed Ex.A-6-pattadar passbook standing in the name of appellant No.2 and Exs.A-8 to A-15-certified copies of pahanies for the years 2005-06 to 2012-13. Respondent Nos.2 to 5 have not filed any shred of evidence to show that for at least 12 years prior to the filing of the suit, they or their predecessors-in-interest have been in possession of the suit property. The lower Court has brushed aside the overwhelming documentary evidence produced by the appellants showing their possession on the reasoning that the revenue record was based on the registered sale deed and that therefore the same cannot be relied upon for determining the aspect of possession. Such a reasoning cannot be sustained because the predominant issue for adjudication in an application for injunction is physical possession with respect to the property. The issue whether the appellants are bonafide purchasers of the suit schedule property for valuable consideration and whether the purchase made by them is hit by the doctrine of lis pendens, may be relevant in the main suit. In my opinion, the lower Court has committed a serious error in not giving due weight to Exs.A-6 and Exs.A-8 to A-15 and consequently failing to protect the physical possession of the appellants pending the suit.
For the above mentioned reasons, the order of the lower Court is set-aside. I.A.No.1464 of 2013 is allowed.
The Civil Miscellaneous Appeal is accordingly allowed. The lower Court is directed to dispose of the suit within a period of six months from the date of receipt of this order.
As a sequel to the disposal of the Civil Miscellaneous Appeal, CMAMP No.1011 of 2014 filed for interim relief is disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 1-8-2014 AM