NAGESWARA RAO Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) THE defendant is the appellant, the plaintiff filed the suit for a perpetual injunction restraining the defendant from interfering with the plaintiff's possession cf the land bearing S.No. 203/2 measuring about acres 23.38 Gts. siiuated in Kalvakunta village. THE plaintiff has admitted that the patta of the suit land stood in the name of one Mohammed Bilal but that it was so only nominally. THE plaintiff claimed to be in possession and enjoyment of the suit land for a long time. He relied upon the relevant Pabani Patraks and the land revenue receipts for the years 1963, 1964 and 1965 in support of his claim THE defendant in his written statement contended that Mohammed Bilal was the absolute owner and pattedar of the suit land and that it was in the possession of Bilal till it was attached and custody thereof was taken by the Government on 15-4-1963. THE defendant claimed to have purchased the suit property under Ex. B-16 which is a registered sale deed dated 3-8-1965 for a consideration of Rs. 4,000. THE defendant also claimed that he was in possession of the suit land which was on the data of the sale as vacant land. It was urged that as the plaintiff had no manner of right or title or interest in the suit land no injunction would be granted.

(2.) IT was found by the trial court that the plaintiff was in exclusive possession of the suit land on the date of suit and that the Government did not deliver possession of the suit land to Mohammed Bilal after attachment had and did not dispossess the plaintiff from the suit land after the institution of the suit. On the question whether the defendant is the owner of the suit land, the trial court found that the sale in favour of the defendant was hit by Sec. 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. In that view notwithstanding Ex B. 16 sale deed it was held that the defendant was not the lawful owner of the suit property. The suit was therefore decreed by the trial court. On appeal by the defendant the lower Appellate court framed three points for decision. "(1) Whether the plaintiff was in possession of the suit land at the time of the filing of the suit ? (2) Whether the suit for mere injunction is maintainable without seeking relief for declaration of title ? (3) Whether the plaintiff is entitled to the Injunction as prayed for? The Lower Appellate Court agreeing with the finding of the trial court found on point (1) that the plaintiff was in exclusive possession of the suit land on the date of the filing of the suit On point (2) it was found that the plaintiff need not have asked for a declaration of his title and the suit for perpetual injunction was maintainable. On point (3) it was found that the defendant had unlawfully interfered with the possession of the plaintiff over the suit land as alleged in the plaint. In the course of the discussion under point (1) it was found that the sale deed Ex. B 16 executed by Mohammed Bilal in favour of the defendant on 3- 8-1965 without obtaining the necessary permission from the Tahsildar u/s 47 of the Tenancy Act was illegal and could not confer title on the defendant. The appellate Court had therefore dismissed the appeal. In this second appeal by the defendant it is contended by the learned counsel, Sri Upendialai Waghray, that tha possession of the plaintiff in the instant case is not one such as can be protected by the grant of a perpetual injunction. The learaed Counsel sought to contend that the sale deed evidenced by Ex. B. 16 could not be held to be a void transaction. The Counsel submitted that the transaction was one which can be rendered valid by recourse to proceedings u/s 50 B and in fact as on today Section 47 itself stands deleted and that there is even no need to make any application u/s 50 B of the Act. No doubt, it was stated in the defendant's evidence that Sec. 50 B proceedings were pending and that they were oaly stayed by reason of the present suit. But except for that statement there is no documentary evidence in proof of the said submission. Even otherwise having regard to the contents of Sec. 50-B I am clearly of the view that the Section could not be invoked with regard to Ex. B. 16 as it falls out side the purview of Sec. 50-B. That this is so is not seriously disputed by the learned counsel for the appellant. In fact I may mention that on the last occasion when I had nearly concluded delivering the judgment in the present case, the Counsel for the respondent had very strongly urged that thers has never been any application at all u/s 50-B filed before the Tahsildar. I have given a week's time to the Counsel for the appellant to produce a certified copy of such an application. The learned Counsel for reasons beyond his control could not produce any such certified copy before me. But the production of such a certificate would not in any way help the appellant in the present case as it is clear that Sec. 50-B is not in any way attracted to Ex. B. 16 Sale deed and there is no question of validating Ex. B. 16. The amendments made subsequently to Sec. 50-B are not retrospective and the deletion of Sec. 47 in the circumstances cannot be of any avail to the appellant. IT cannot be said that after the deletion of Sec. 47, whatever transaction was validative of Sec. 47 stands automatically valid without recourse to Sec. 50 B of the Act. I therefore find myself unable to give effect to the arguments of the learned counsel for the appellant. IT is next urged by the learned counsel for the appellant that Mohammed Bilal himself had given evidence in this case that he had sold the property to the defendant and that therefore this Court must take that statement of the vendor into consideration and hold that the defendant is the true owner. The contention is that in case Mohammed Bilal, himself was in possession without selling the property under Ex. B 16 to the defendant the plaintiff could not have obtained any injunction against him, he being the true owner. Legally the same position must obtain with regard to the defendant also is the contention of the counsel. I do not think this argument is sound. The defendant tried to resist the plaintiff's suit only on the ground of Ex. B. 16. If under Ex. B. 16 no title caa be said to be validly conveyed by virtue of the prohibition contained in Sec. 47 to the defendant. I do not think the defendant can resist the plaintiff's suit for an injunction based upon long possession. For the above reasons I am not presumed to differ from the judgments of the two Courts below. The result is the Second Appeal fails and is dismissed In the circumstances of the case, I make no orders as to costs. P.N.R. S.A. Dismissed.