Or.39 rule 1&2 CPC-Whether the petitioner has made out prima facie case and balance of convenience in his favour and against the respondents?

Or.39 rule 1&2 CPC-Whether the petitioner has made out prima facie case and balance of convenience in his favour and against the respondents?

https://freelegalconsultancy.blogspot.com/2020/09/or39-rule-1-cpc-whether-petitioner-has.html

The material in the nature of revenue records produced by the petitioner did make out his case as to possession and enjoyment and as a matter of right, on a prima facie consideration.  Therefore, in the given circumstances of the case, failure of the learned trial Judge and the learned 1st appellate Judge to address the issues in this case on the material on record in proper perspective, did affect the process of evaluation and such improper appreciation of material requires interference of this Court in its supervisory jurisdiction to set the things right and in the interests of justice. 

 The petitioner strongly relied on 

Ex.A2, an extract of adangal for fasli 1426 relatable to the year 2016-17 

Ex.A3 is that extract of 1B register, the entries of which are again relied on by the petitioner. 

The contents of Ex.A2 adangal reflect that during the above fasli, the entire extent of the suit land was recorded in the name of the petitioner as the pattadar and as the person in enjoyment of the suit land. Nature of possession of this land is described in Ex.A3, by inheritance. 

These contents fit in with the case set up by the petitioner as to his possession and enjoyment of the suit land during the above period and on account of acquiring this land from his father being the only son. Ex.A3 reflects the same situation with similar entries. Thus, Ex.A2 and Ex.A3 completely support the case of the petitioner. 

Ex.A4 is pattadar passbook said to have been issued to the petitioner by revenue authorities. 

The contents of this passbook should reflect as is found in 1-B register. 

However, the learned trial Judge choose to reject Ex.A4 on the premise that the signature appearing on the photograph pasted at page No.1 of this document of Mandal Revenue Officer is differing from the signature of Mandal Revenue Officer who subscribed his signature in the same page at the relevant column. Ex.A2 was also rejected by the learned trial judge on the ground that it pertains to the year 2016 and did not reflect the situation as on the date of filing the suit, since the suit was instituted in the year 2018. 

The learned appellate Judge in a way also concurred with the views of the learned trial Judge, in this context. 

On behalf of the respondents, 

Ex.B8 a copy of adangal for fasli 1419 was relied on in the trial Court. It was not an authenticated copy obtained from proper source viz., from the office of the concerned Tahsildar or as an authenticated extract from Mee Seva facility. It was issued by the Village Revenue Officer concerned of Pedda Harivanam village. The reason for failing to obtain an extract similar to Ex.A2 is not explained on behalf of the respondents. It was not explained in the trial Court or in the appellate Court. This Ex.B8 apparently was not countersigned by either Deputy Tahsildar or Tahsildar or Appropriate Authority competent to issue revenue extract. Its contents further reflect that an extent of Ac.4-31 cents each was in possession of Sri Shankarappa and Sri Nagappa during fasli 1419 and the patta stood in the name of Sri K.Basappa. Nature of acquisition of this land as per its entries is recorded ‘under an agreement’. Both the Courts attached any amount of importance to Ex.B8 in this context. 

In the presence of Ex.A2, which bears the signs of authenticity, it is rather ununderstandable how the trial court as well as the 1st appellate Court placed reliance on Ex.B8, which is, as such, an unauthenticated copy. 

In this context, the averments in the written statement should be taken into consideration. It is the version of the 5th respondent in the written statement that the plaintiff got mutated his name in revenue records suppressing Ex.B2-Exchange deed, taking advantage of the innocence of the respondents just before filing the suit. 

A prima facie consideration of these averments in the written statement did indicate the fact that these revenue records in relation to the suit land stood in the name of the petitioner. It is vouched by Ex.A2 and Ex.A3. 

However, the learned trial Judge accepted such version of the respondents and to hold that they are not educated and are not aware of maintenance of revenue records up date. Further observation of the learned trial Judge in his order is that after purchasing the property they could not get the entries in revenue record updated appropriately and which fact could not be ruled out. When the version of the 5th respondent in the written statement and observations so recorded by the learned trial Judge are considered, it presents an unexplainable situation for the respondents with reference to the entries in Ex.B8 adangal. 

When on their own showing, revenue records did not reflect entries in their favour, producing Ex.B8 of such nature, itself is bound to speak of its nature and as the one which was obtained to suit their claim. On this ground Ex.B8 has to be rejected. For the same reasons, Ex.B5 alleged extract of 1-B register issued by VRO concerned, stands rejected. 

Ex.B4 is stated to be a Rythwari Passbook issued in favour of the father of the 5th respondent. It is an old pattadar passbook and of course bears an entry relating to the suit land. In the written statement, it is clearly stated by the 5th respondent that this old Rythwari passbook is now banned after enactment of Andhra Pradesh (Rights in Land) and Pattadar Passbooks Act, 1971. Of course, a rider is attached in describing this pattadar passbook stating that it is nothing but 10(1) Account/record of rights. When according to the 5th respondent, this Ex.B4-pattadar passbook is no more in existence and a banned substance, it is rather strange that he tried to rely on the same and the learned trial Judge quietly accepted it, confirmed by the learned appellate Judge

Ex.B9 is the sale agreement dated 11.02.1986, under which according to the version of the respondents, father of the 5th respondent Sri Shankarappa had purchased the suit land from one Sri H.K.Parameshwara Achari. Neither there is any pleading nor any clarification given out before the learned trial Judge or 1st appellate court as to the relationship between Sri H.K.Parameshwara Achari and Sri Kammara Basappa, who held this property originally, which was sold under original of Ex.A1 to the father of the petitioner.

The description of Sri Sri H.K.Parameshwara Achari in Ex.B9 is that he was son of Sri Kamsala Basappa. Nonetheless, to consider this document clarification should have been brought out and the pleading set by the respondents either in the counter filed before the trial Court or in the written statement did not offer any clarification in this respect. 

When thus being the background to consider this entire matter,which reflected the situation on the date of filing the suit, when the material produced by the petitioner stands more for acceptance than the material placed by the respondents, it is rather unthinkable as to how either the trial Court or the 1st appellate Court, had drawn conclusions against the petitioner refusing to grant relief in his favour, as sought

 There appear no certain circumstances as to why the land purchased almost fortnight earlier under the original of Ex.A1 was sought to be exchanged by the father of the petitioner from Sri Kammara Basappa from whom he had purchased this land as per Ex.B2. 

Nonetheless, having regard to the nature of the suit being for bare injunction and the stage at which this matter now is considered, it is rather an unnecessary enquiry as to what would have transpired about 60 years ago when this exchange transaction took place. It can be relegated to the stage of the trial. 

The material in the nature of revenue records produced by the petitioner did make out his case as to possession and enjoyment and as a matter of right, on a prima facie consideration. 

 Therefore, in the given circumstances of the case, failure of the learned trial Judge and the learned 1st appellate Judge to address the issues in this case on the material on record in proper perspective, did affect the process of evaluation and such improper appreciation of material requires interference of this Court in its supervisory jurisdiction to set the things right and in the interests of justice. 

 Thus, the petitioner made out prima facie case in his favour basing on the material produced by him in comparison to the respondents. Balance of convenience also weighs in his favour than the respondents in the circumstances. Thus, this point is held. POINT No.2:- 29. In view of the findings on point No.1 in as much as prima facie case and balance of convenience stood in favour of the petitioner, in the MVR,J CRP.No.947 of 2020 10 event of refusal to grant temporary injunction, he would suffer irreparable loss and injury. Status of the property as claimed by the petitioner should be maintained during trial. However, ultimate result in the suit shall be based on the material and evidence to be produced by the parties in a full-dressed trial. Thus, this point is held in favour of the petitioner and against the respondents. POINT No.3:- 30. In view of the findings on points 1 and 2,