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2010 Supreme(AP) 622

2011 (2) ALT 268 (D.B.)
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
B. PRAKASH RAO and R. KANTHA RAO, JJ.
Durga Matha House Building Constructions Co-operative Housing Society Ltd., and another
v.
Sada Yellaiah and others
A.S.Nos.719, 723 and 725 of 2005
Decided on : 16-7-2010.

Advocates Appeared:
Mr. AK. Narasimha Rao, Counsel for the Appellants in A.S. 719 of 2005.
Mr. P. Suresh, Counsel for the Appellant in A.S. 723 of 2005.
Mr. A Ramakrishna Rao, Counsel for the Appellant in A.S. 725 of 2005.
Mr. Venkateshwar Varnasi, Counsel for Respondent Nos. 1,2,5,5, 7 and 11.
M/s. B. Vijaya Bhaskar, Harender Pershad, P. Subhashan Reddy, T.V. Ramana Rao, Y. Ashok Raj and S. Sriram, Counsel for Respondent respectively Nos 4, 6, 8, 9 and 10, 12 and 13 and 16. None appeared for Respondent Nos.3, 14 and 17.

Headnote:a) SPECIFIC RELIEF ACT, 1963, Section 38 – Injunction suits filed by the assignees of Decree holders in a preliminary decree in a suit for partition without disclosing assignment of a part of the land to the tenants of the predecessors held not maintainable because notwithstanding preliminary decree having been passed, suit is presumed to be pending till the final decree is passed and hence the assignees does not obtain a title better than assignors. (Paras 19, 20 and 22)

       b) REGISTRATION ACT, 1908, Section 17 - Evidentiary Value of Unregistered Deeds - Civil Procedure Code, 1908, Order XXI Rule 16 :- Assignment deeds in respect of lands which are subject matter of a preliminary decree cannot be recognized by courts since they are hit by Section 17 of Registration Act. They may be recognized for the limited purpose of execution only. No suits on the bsis of such assignments can be entertained. (Paras 26 and 29)

       c) TRANSFER OF PROPERTY ACT, 1882, Section 54 :- Land Grabbing court held that the defendants or their ancestors were the tenant of the land question for a long time and the same was upheld by the High Court in appeal. On the other hand the plaintiff only relied on sale deeds from the assignees of a land whose claim itself is not established. Suit for injunction dismissed. (Paras 34, 35, 37, 40 and 41)

JUDGMENT

Per B. Prakash Rao, J.

The plaintiffs in the Court below are the respondents herein, who filed against the decrees and common judgment delivered in the suits, namely O.s.Nos.109 of 2002, 178 of 2003 and 179 of 2003 on the file of learned V Addl. District Judge, Ranga Reddy District, dismissing the suits.

2. A.S.No.719 of 2005 was filed by the plaintiffs in O.s.No.109 of 2002 while A.s.No.72S of 2005 was filed by the plaintiffs in O.s.No.178 of 2003, wherein the appellant No.1/Plaintiff No.1 is a society common, along with other parties. Whereas, the appellant in A.s.No.723 of 2005 is the plaintiff in O.s.No.179 of 2003, which is an employees cooperative building society.

3. For convenience sake, the parties referred to as per their array and ranks in the suits. The defendants in all the three suits are common.

4. The case as set up in the plaint and the defence raised in all the three suits is akin excepting the extents of property involved in the suits. While an extent of ac.16-00 Gts., of land is the suit property in O.S.No.109 of 2002, an extent of Ac.50-00 gts., is involved in O.S.No.178 of 2003 and a separate and distinct extent of ac.65-00 gts., is involved in O.S.No.179 of 2003. All the extents involved in the three suits are comprised in Sy.No.163 of Hydernagar village.

5. The case of the plaintiffs in all the suits is as follows:-

Sy.No.163 of Hydernagar village is vast in extent. One Dilawarunnisa Begum filed C.S.No.14 of 1958 on the file of this Court for partition of huge extent of properties including the suit Survey Number, which was shown as item 38 of Schedule-IV in the said plaint. The Government of Andhra Pradesh represented by its Chief Secretary was Defendant No.53 and Jagir Administrator was Defendant No.43 in the said suit. Most of the defendants in the said suit have filed compromise memos and this Court passed preliminary decree on 28-06-1963 on the strength of compromise entered into between the parties thereto. The Government of Andhra Pradesh and Jagir Administrator did seriously contest the matter and exhibited volte face to the passing of preliminary decree. Nonetheless, at a subsequent stage, the Government of Andhra Pradesh filed a petition in LA.No.44/1982 before this Court to delete the suit Survey Number herein and two other survey numbers from the said compromise and the said petition was dismissed on 18-12-1982. The Government of Andhra Pradesh having slept over its rights almost for four decades have filed an appeal against the said preliminary decree and this Court dismissed the petition filed by it to condone the delay of about 38 years in filing the appeal. The said order was confirmed by the Hon'ble Supreme Court in S.L.P, which was rejected.

6. While the things stood thus, the decree holders in the said suit assigned their rights in an extent of Ac.131-00 gts., i.e., Ac.50-00 gts., each, under the assignment deeds Exs.A.2, dt.18-4-1987 and Ex.A.48, dt.16-4-1987 and an extent of Ac.15-00 gts under Ex.A-32 dt.22-5-1987 and an extent of ac.16-00 gts under Ex.A.49, dt.22-5-1989. According to the plaintiffs, this Court recognized the said assignments. The possession of the suit property was delivered to the plaintiffs herein, but the Government had failed to mutate the names of the plaintiffs in the revenue records. Then the plaintiffs herein filed W.P.No.389 of 2000 on the file of this Court and inspite of orders of this Court, dt. 04-08-2000 directing the revenue officials to record the names of the plaintiffs, they failed to do so. Whereupon the plaintiffs filed contempt application and it was then that the names of the plaintiffs were recorded in the pahanies. Thus, the plaintiffs are in legal possession of the suit land in their own right as owners thereof and the defendants have been interfering with their possession. Therefore, the plaintiffs filed these three suits for injunction.

7. It may be stated here that only Defendants 4, 8, 9, 10, 15 and 16 have contested the suits and the






























































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