High Court · 2012

the District Collector, Khammam-first respondent. The nature of Inam lands ceased and the same were classified as Rytwari lands. The first respondent did not demarcate the land in Sy.No.49. It is averred that the authorities of the Tahsildar, Khammam-second respondent had made wrong entries in the revenue records pertaining to Sy.No.49, classifying as ‘Gramasamuhi’ without there being any proceedings and without issuing any notice to the occupants including the petitioners prior to the said classification. It is averred that as per Jagir Abolition Regulation Act, 1953, Khammam Taluq was made ‘Khalsa’ and when the record of rights was prepared in 1953, the names of the petitioners were recorded as owners and occupiers of the petition schedule property and thus, they are enjoying the petition schedule property. While so, during Jamabandi, which was effected in 1956, the land in Sy.No.49 and some other survey numbers situated at Damsalapuram village were treated as ‘Daste Giridin Amal’. Aggrieved by the same, Inamdars referred the dispute to the first respondent stating that the names of the occupants should be eliminated from the occupancy column of record of rights and include their names as occupants. The first respondent vide order dated 07.01.1958, held that it was not correct to continue the names of the occupants in the village accounts when the said lands were ordered to be released from being part of Agrahar. Aggrieved by the same, the occupants including the petitioners preferred an appeal before the Board of Revenue, which in turn remanded the matter to the first respondent to conduct enquiry afresh vide order dated 06.01.1960. Thereupon, respondent, having conducted a detailed enquiry by giving opportunity to the Inamdars and the occupants passed order dated

18.12.1960, holding that the names of the occupants should be shown as occupants. Without preferring any appeal against the said order, the Inamdars filed C.R.P.No.1 of 1964 before the first respondent with the self same relief. Holding that the competent authorities have already adjudicated the said issue, the first respondent dismissed the said CRP on 09.10.1964. While the matter stood thus, the second respondent issued notice dated 10.11.1995 under Section 7 of the Land Encroachment Act, 1905 (for short ‘the Act’) to the occupants including the petitioners, of the land in Sy.No.49 and thereafter, he passed an order under Section 6 of the Act declaring them as encroachers. The appeal and the revision preferred by the occupants including the petitioners were dismissed on 27.08.2003 and 16.08.2004, respectively. It is further averred that the orders of the first respondent dated 07.01.1958 and 18.12.1960 and also the Board of Revenue dated 06.01.1964 have become final and are binding on the Mandal Revenue Officer, the Revenue Divisional Officer and the Joint Collector, Khammam. It is further averred that the Andhra Pradesh Housing Board (for short ‘the Board’)-third respondent , under the guise of the transactions entered with the second respondent, is trying to make constructions in the petition schedule property. Further, the third and fourth respondents have fabricated the records in favour of fifth respondent-M/s.Pratima Constructions, which in turn issued a paper notification on 07.11.2009 in EENADU daily newspaper offering the lands in Sy.No.49 for sale. Hence, the petitioners filed the suit for declaration of title etc., along with the I.A. for interim injunction.

5. Respondent Nos.3 and 4 filed counter denying all the allegations made in the petition. In the counter, it is stated that the suit itself is not maintainable on the ground that the petitioners and other occupants have filed W.P.No.24035 of 2005 before this Court challenging the proceedings of eviction and the same was dismissed. Aggrieved by the same, they filed W.A.No.2317 of 2005 and the same was dismissed vide judgment dated

22.06.2006, against which they preferred SLP(c) No.3022 of 2007 before the Supreme Court and the same was also dismissed vide order dated 26.02.2007. Therefore, the proceedings before the revenue authorities have become final and are binding on the occupants including the petitioners. The petitioners were never declared as owners and occupants of the petition schedule property and they were not granted Occupancy Right Certificate (O.R.C.). It is further stated that Ac.51.17 ½ gts of land situated in Sy.No.49 was allotted to the fifth respondent and it had invested huge amounts for development of township in some of the land and out of the remaining land, it sold Ac.11.00 in open auction and at this stage, the petitioners filed the present suit. It is stated that several occupants of various extents of the land in Sy.No.49 of Damsalapuram village of Khammam District filed civil suits, which are pending. Further, the petition schedule property is un- identifiable with reference to the schedule given in the petition as the boundaries mentioned are incorrect. Hence, they prayed to dismiss the I.A.

6. Respondent No.5 filed counter stating that it was the successful bidder in the auction conducted by the Board and as such, it is a bonafide purchaser by paying the total consideration of Rs.8,60,44,661/- vide letter dated 25.06.2008. Further, the occupants of the lands in Sy.No.49 were unsuccessful before this Court as well as the Supreme Court. Therefore, there is no prima facie case, balance of convenience and irreparable loss in favour of the petitioners, and that if the injunction is granted, it would suffer irreparable loss and injury.

7. During the course of hearing in I.A., no document was marked on either side. After considering the material on record, the Court below held that the petitioners have established a prima facie case and balance of convenience in their favour and accordingly, allowed the I.A though the impugned order.

8. Heard Sri J. Prabhakar, learned counsel for the appellants, Sri Vedula Venkata Ramana, learned senior counsel appearing on behalf of Sri Nagaraju Naguru, learned counsel for respondent Nos.1 and 2, learned Government Pleader for Revenue for respondent Nos.3 and 4, and Sri K. Raghavacharyulu, learned counsel appearing on behalf of Sri M.V.Rama Rao, learned counsel respondent No.5 in C.M.A.No.118 of 2012 and appellant in C.M.A.No.167 of 2012.

9. Sri J. Prabhakar, learned counsel appearing for the appellants/respondent Nos.3 and 4, contended that the Court below has committed error in granting ex parte interim injunction without issuing any notice under Section 80 CPC to respondent Nos.3 and 4, and that the suit itself is not maintainable in view of the provisions of A.P.Inams Abolition Act. He further contended that the subject lands were entered in the revenue records as ‘Gramasamuhi’ vested in the Government and no certificate of occupancy was given to the petitioners and as such they were treated as encroachers. He further contended observations of the Court below regarding the proceedings of eviction are totally misconceived as those proceedings were confirmed by the Apex Court positively. Learned counsel has relied upon the decision of the Supreme Court in M. GURUDAS v. RASARANJAN [1] wherein it was held as under: “While considering an application for injunction, it is well settled, the Courts would pass an order thereupon having regard to: (i) Prima facie case (ii) Balance of convenience (iii) Irreparable injury. A finding on ‘prima facie case’ would be a finding of fact. However, while arriving at such a finding of fact, the Court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist”. Learned counsel has further relied upon the decision of the Supreme Court in AJAY MOHAN v. H.N.RAI [2] wherein it was held as under: “So far as the order of this Court dated 02.02.2007 is concerned at the first blush, it appears that this Court could not have granted any relief to re-agitate the questions of hearing the parties and interim relief once over again. Even if that be so, the said interim relief having regard to the admitted fats was to be kept confined only for a short term, namely, till the application for amendment is considered. This court, therefore, did not grant any liberty to the plaintiffs to file a fresh application for injunction. It could not comprehend thereabout at that time. The notice of motion taken out for grant of injunction was, therefore, required to be considered on its own merit. The plaintiffs had not brought out any new circumstances warranting grant of any injunction in their favour. Only because a further prayer had been made in the suit upon amending the plaint, the same by itself did not bring about a situational change warranting application of mind afresh by the learned Judge, City Civil Court. The only argument which is available to the appellants was that the suit, by reason of amendment made in the prayer, has become maintainable. Maintainability of the suit itself does not give rise to a triable issue. The issues which arose for consideration in the suit are the ones we would have noticed hereinbefore, namely, inter lia, the validity of the agreement for sale and/or grant of possession in favour of the respondent- defendants. How, by sheer amendment of the plaint, the plaintiff could prove a prima facie case or show existence of a balance of convenience in their favour, has not been demonstrated”. Learned counsel further contended that the Government has handed over the possession of land to an extent of Acs.52.27 ½ gts in Sy.No.49 to respondent Nos.3 and 4 and as they had invested huge amounts for the development of township and also sold a portion of the said property in open auction, in which the fifth respondent was a successful bidder, the petitioners have no manner of right or title and interest over the petition schedule property.

10. Sri K. Raghavacharyulu, learned counsel appearing on behalf of Sri M.V.Rama Rao, learned counsel for the fifth respondent i.e., the appellant in CMA No.167 of 2012, contended that the fifth respondent had purchased a portion of the property in dispute the auction conducted by the Board, for valid consideration. He further contended that the present suit is not maintainable and it is barred by the doctrine of resjudicata in view of dismissal of I.A.No.2146 of 2007 in O.S.No.90 of 2008 filed for temporary injunction in respect of the property in Sy.No.49 by the wife of respondent No.1 and also the appeal being C.M.A.No.393 of 2008 filed by her. With regard to maintainability of the suit, he relied upon various decisions of the Supreme Court in M. NAGABHUSHANA v. STATE OF KARNATAKA [3] ; KHATRI HOTELS (P) LIMITED v. UNION OF [4] INDIA ; ODURU CHENCHU LAKSHMAMMA v. DUVVURU SUBRAHMANYA [5] REDDY ; LOKRAJ v. V. KISHAN LAL [6] ; AND AJAY MOHAN’ case (2 supra). Learned counsel further contended that the Court below ought not to have granted temporary injunction in favour of the petitioners without there being any material documents as regards their possession as on the date of filing of the suit. In support of his contention, he relied upon the decisions of the Supreme Court in AGRICULTURE PRODUCT MARKET COMMITTEE-GONDAL v. V. GIRDHARBHAI RAMJIBHAI CHHANIYARA [7] ; KISHORSINH RATANSINH JADEJA v. MARUTI CORPORATION [8] ; SEEMA ARSHAD ZAHEER v. MUNICIPAL CORPORATION OF GREATER MUMBAI [9] ; BRUCE v. SILVA RAJ [10] ; GUJARAT BOTTLING COMPANY LTD., v. COCA COLA COMPANY [11] ; and DALPAT KUMAR v. PRAHLAD SINGH [12] .

11. On the other hand, Sri Vedula Venkata Ramana, learned senior counsel appearing on behalf of Sri Nagaraju Naguru, learned counsel for the petitioners/respondent Nos.1 and 2, contended that the property in dispute is ‘Inam land’ and does not belong to ‘Gramasamuhi’, and that the names of the petitioners were entered in the revenue records prior to 1953 and since then they are in un-interrupted possession of the petition schedule property. He relied upon the observations made by the third respondent in C.R.P.No.1/1964 dated 09.10.1964 and also the pahanies, receipts and the revenue proceedings. He further contended that the proceedings under the Act are not bar of jurisdiction of suit for declaration of title and he relied upon Section 14 of the Act, which reads as under: “14. Bar of jurisdiction of Civil Courts:-No decision made or order passed or proceeding taken by any officer or authority or the State Government under this Act, not being a decision, order or proceeding affecting the title to the land of a person, shall be called in question before a civil Court in any suit, application or other proceeding and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by such officer or authority or State Government in pursuance of any power conferred by or under this Act”. Learned counsel further contended that the petitioners had perfected their title over the petition schedule property by way of adverse possession and as the relief sought for by the petitioners is only not to create any third party interest and not to change the physical features of the lands, the Court below by giving cogent reasons has granted injunction by the order impugned, which needs no interference by this Court. In support of his contentions, the learned counsel relied upon the decisions of the Supreme Court in MAHARWAL KHEWAJI TRUST (REGD.) FARIDKOT v. BALDEV DASS [13] ; MYSORE STATE ROAD TRANSPORT CORPORATION v. MIRJA KHASIM ALI BEG [14] ; and GOVERNMENT OF ANDHRA PARADESH v. THUMMALA KRISHNA RAO [15] ..

12. In view of the rival contentions, the point arises for consideration is whether the impugned order is sustainable?

13. We have perused the material on record. The proceedings of the Mandal Revenue Officer, Khammam, appeal before the Revenue Divisional Officer, Khammam and revision before the Commissioner of Appeals, dated 24.09.1998, 16.08.2004 and

30.09.2005, respectively, would show that regarding Sy.No.49 admeasuring Ac.65.29 gts, there were no specific occupants at that time and as such the land was treated as ‘Gramasamohi’, and the same was entered in the pattedar column of pahani and the Commissioner of Land Revenue had clarified ‘Gramasamohi’ lands are Government lands, reserved communal purpose. Challenging the said proceedings, petitioners and others filed W.P.No.24035 of 2005 and the same was dismissed by this Court vide order dated 10.11.2005, against which, they filed W.A.No.2317 of 2005 and the same was also dismissed vide judgment dated 22.06.2006, wherein a Division Bench of this Court held that in the orders passed by the District Collector, Khammam dated 18.12.1960 and 09.10.1964 C.R.P.No.1 of 1964, which were strongly relied upon by the petitioners, there was no mention of specific occupant of Sy.No.49, and that no patta was granted in their favour or in favour of their predecessors at any time in respect of the subject land and thus they failed to establish that they were in possession and enjoyment of the subject land since 1953 as claimed by them as title holders. It also further held that the subject land is found to be ‘Gramasamohi’, reserved for communal purpose and vested in the Government and as such, the petitioners and others, who were found to be not landless poor, but ineligible encroachers, were rightly ordered to be evicted by the revenue proceedings. The said judgment was upheld by the Supreme Court in SLP preferred by the petitioners and others.

14. In the instant case, the petitioners are claiming title in respect of the land to an extent of Ac.2.00 each in Sy.No.49. When once the lands situated in Sy.No.49 were held as ‘Gramasamohi’ vested in the Government and the petitioners and others were treated as encroachers, which decision had attained finality, granting of temporary injunction in respect of the same lands in the same survey number by the Court below basing on the unmarked pahanies and receipts, which were prior to the orders of eviction, is unsustainable. Further, after confirmation of the orders of eviction by the Apex Court, the Government allotted the land admeasuring Ac.51.17 ½ in Sy.No.49 to the fifth respondent i.e., the appellant in C.M.A.No.167 of 2012, and the fifth respondent had raised a township by investing huge amounts and the construction is in progress.

15. It appears that prior to the present suit, the wife of the first petitioner by name Gade Janakamma, filed O.S.No.838 of 2007, which was renumbered as O.S.No.90 of 2008, as in forma pauperis for declaration of title in respect of the land to an extent of Ac.7.00 gts situated in Sy.No.49 of Damsalapuram village. Along with the said suit, she filed I.A.No.2146 of 2007 for grant of temporary injunction and the same was dismissed vide order dated 26.04.2008, against which she filed C.M.A.No.393 of 2008, which was also dismissed by a Division Bench of this Court.

16. In view of the aforesaid concurrent findings of this Court as well as the Apex Court, we are of the view that the Court below has not gone through the earlier proceedings, and simply allowed the I.A. granting temporary injunction. Therefore, for the foregoing reasons, the impugned order is not sustainable and it is liable to be set aside.

17. Accordingly, both the Civil Miscellaneous Appeals are allowed setting aside the order impugned dated 19.01.2012 in I.A.No.1186 of 2011 in O.S.No.63 of 2011. Consequently, I.A.No.1186 of 2011 in O.S.No.63 of 2011 stands dismissed. No costs. ______________________ GHULAM MOHAMMED, J __________________ K.S.APPA RAO, J Date:20.03.2012 [1] [2] [3] (2006) 8 SCC 367 (2008) 2 SCC 507 (2011) 3 SCC 408 [4] [5] [6] [7] [8] [9] (2011) 9 SCC 126 (1980) 3 SCC 130 (1995) 3 SCC 291 (1997) 5 SCC 468 (2009) 11 SCC 229 (2006) 5 SCC 282 [10] [11] [12] [13] [14] [15] 1987 (Supp) SCC 161 (1995) 5 SCC 545 (1992) 1 SCC 719 (2004) 8 SCC 488 AIR 1977 SC 747 AIR 1982 SC 1081