CRP/1727/2024 of MOMIN MAHABOOB LIYAKATH ALI Vs MOMIN MOHAMMAD RAFIQ on 31 December 2024

ORDER:

This Civil Revision Petition is filed by the petitioner against the Order,dated 14.03,2024 passed in C.M.A No.8 of 2023on the file of Principal DistrictJudge, Kurnool confirming the order dated 29.09.2022passedinI.A No.19 of2022in O.S No.3 of 2018on the file of Senior Civil Judge, Atmakur, KurnoolDistrict (for short “the trial Court").

2. The parties hereinafter referred to as arrayed before the trial Court forthe sake of convenience.

3. The petitioner herein is the plaintiff before the trial Court.The petitionand respondent No.1are no other than the siblingsandchildrenofLateM.Ahmed Hussain.The petitioner has preferred civil suit in O.S No.3 of 2018before the trial Court seeking for cancellation of registered settlement deed dated01.11.2014 said to have bene executed by the father of the petitioner in favour ofrespondent No.1 in respect of the plaint schedule priority as null and void and forgrant of permanent injunction.The petitioner filed Interlocutory Application videI.A No.19 of 2022 in O.S No.3 of 2018 under Order XXXIX Rules1 and 2 of CPCseeking temporary injunction against the respondent No.2 andhis henchmenfrom entering into the petition scheduleproperty without due process of law tilldisposal of the main suit.

4. Brief facts of thecaseare that the Petitioner and other legal heirs ofLate Momin Ahmed Hussain are in possession and enjoyment of the petitionschedule property. Karnataka Bank Limited, Anantapur got the schedule propertyauctioned under the provisions of SARFAESI ACT through its authorized officer,basing on symbolic possession, without physical andactualpossessionandindeed, the schedule property being used as auto parking stand by Shaik Bashaof Amalapuram Village, Atmakur Mandal and other auto drivers by payingmonthly rents to the petitioner and the schedule property is used as an autostand since thirty years. One tenant by name N.Anjaneyulu is using a corner ofthe schedule property for keeping centering polls depot. During the lifetime ofM.Ahmed Hussain, one tourist lodge represented by its Proprietor B.Gouse Azam has been using the part of petition schedule property for parking his customers’vehicles on payment of rent to the petitioner.

While the matter stood thus, the Respondent No.2 v\/hois acollusiveauction purchaser threatened the tenants on 02.1.2022 that he would bring JCBvehicle and dismantle the shed situatedin the schedule property andalsooverthrew the autos parked therein. Karnataka Bank Limited, Anantapur took theschedule property as security without proper enquiry about the right and title ofRespondent No.1 and granted loan in collusion with Respondent No.1 who is theprincipal borrowerfor extraneous consideration and without lookinginto thevalidity of the settlement deed dated 01.11.2014 which standsin the name ofRespondent No.1. The title of Respondent No.1is under challengein the civilsuit. As Respondent No.2 is about to enter into the schedule property unlaviTully,without due process of law. Respondent No.2 with the help of local police, tried totrespass into the schedule property. Respondent No.2 highhandedly removedtheboard on 12.01.2022, however, the petitioner’s people re-fixedit immediately.Petitioner gave intimation to the Superintendent of Police, Kurnool on 11.01.2022inperson and by registered post regarding the highhandedness of the collusiveauction purchaser/R2 and the petitioner alsogaverepresentationtothe SubInspector of Police by registered post. Hence, the petition.

5. The 1^‘ respondent remained ex parte before the trial Court.The 2"'^respondent has filedits counter before the trial Court denying the allegationsmade in the petition.The sum and substance of the2respondentisthatRespondent No.1 and anotherperson M/s. Raakin Motors, Represented by itsPartners, executeda registered mortgage deedinrespectofthepetition schedule property in favour of Karnataka Bank Limited, Anantapur Branch andavailed loan of Rs. 1,20,00,000/-. Subsequently, the[loan][ was][ classified][ as][ NPA.]The bank authorities got issued a demand notice under Section 13(2) read withSection 13 (3) of The Securitization and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002 (SARFAESI Act). The demand noticewas served to Respondent No.1. The authorized officer of Karnataka Bank tookpossession of the schedule property as per Section 13 (4) of SARFAESI ACTand possession was also taken by the authorized officer by issuing possessionnotice to Respondent No.1 on 28.11.2017 and possession publication was alsogot issuedin two newspapers on01.12.2017. On15.09.2021,auctionwasconducted and Respondent No.2 participatedin the auction[and][ declared]ashighest bidder and he purchased the schedule property in the open auction forRs.1,53,30,000/-. The authorized officer executed a registered sale certificate on31.12.2021 and delivered possession to Respondent No.2[and][ from][ the][ date][ of]delivery of possession. Respondent No.2 has been in physical possession andenjoyment over the schedule property.

It is further stated that, on 16.09.2021, Respondent[No.2][ and Karnataka]Bank Officials received a legal notice from the petitioner's counsel, they alsoreceived notice from the Debts Recovery Tribunal, Hyderabad challenging thesale. The Debts Recovery Tribunal did not grant any stay. Respondent No.2 paidthe entire sale consideration and bank authorities executed a registered salecertificate and delivered possession of the same. Thus, Respondent No.2is abonafide purchaser.Itis stated that thesuitisnot maintainableinviewofproceedings pending under SARFAESI act,as cu the question of trespassing

into schedule open site by taking police assistance does not arise. The schedulepropertyis an open site and bank took possession long backitself andthepetitioner created somephotos andfiledafalsesuitwithcollusionof1®‘respondent.Therefore,in view of the above reasons, prayed to dismiss thepetition.After careful consideration of material on record and on considering thedocuments produced by both the parties, the I.A No. 19 of 2022 was dismissed bythe trial Court. Aggrieved by the same, the petitioner herein preferred CMA No.8of 2023 before the Principal District Judge, Kurnool (for short “the lower Court”).

6. The lower Court, after hearing the arguments of both the appellantaswell as 2respondent s counsels, made the following points for determination;

1. Whether the petitioner has established the three salutary principlesof temporaryinjunction?'injunction?'

2. Whether the order passed by the Trial Court needs any interference?

7. The Lower Court after hearing the arguments of both the counsels andafter careful consideration of material on record, has dismissed the CMA byholding that, in the absence of sufficient documents to establish he possession ofthe petitioner in respect of the schedule property as on the date of filing of the suitwithout any hesitation and also held that the petitioner failedto establishhispossession over the schedule property as on the date of filing of the suit and thatEx.P1 to Ex.P7 documents are not sufficient to prove possession of the petitionerin respect of the schedule priority,Further heldthat, the contentionof thepetitioner is that, it is only a symbolic possession to 2"'* respondent and thesaidaspect is also to be considered by the trial Court.Therefore, the lower Courtfound any legal grounds to interfere with the well-reasoned order of thetrial Court, has dismissed the CMA.Aggrieved by the same, thepresentCivilRevision Petition came to be filed.

8. This Court vide order dated 09.08.2024, while issuing[notice][ before]admission, has granted stay of all further proceedings[in][ O.S][ No.][ of][ 2018][ on][ the]file of the Senior Civil Judge, Atmakur, Kurnool District.

9. Heard Smt. K. Pallavi, learned counsel appearing for the petitioner andSri J. Janaki rami Reddy, learned counsel appearing for the respondents.

10. On hearing, learned counsel for the petitioner while reiterating thecontents made in the petition, submits that the order of the lower court is illegaland contrary.He submits that the Courts below ought to have accepted theevidenceof PW.1to PW.4inthesuit, whichcinchingprovethephysicalpossession of the schedule property by the petitioner and his tenants, whoare inoccupation of the schedule property from past 30 years and they are paying rentsto the petitioner till date.She further submits that the Courts below drasticallyerred in coming to conclusion that ExPIis a genuine one anditis the settledstandof thepetitioner that Ex.PIisa void document obtainedby therespondent by taking advantage of theill health of Late M.Ahammed Hussain,when it is the case of the petitioner that his late father used to sign in telugu.Butnever put Left Hand Thumb impression and he was unable to move out of thehouse, without the assistance of the others.Further, both the courts ought tohave taken into consideration the crucial fact that the last line of ExPIis in handwriting, whereas the entire Ex.P1is typed one thatitself shows that Ex.P1iscontents made in the petition, submits that the order of the lower court is illegaland contrary.He submits that the Courts below ought to have accepted theevidenceof PW.1to PW.4inthesuit, whichcinchingprovethephysicalpossession of the schedule property by the petitioner and his tenants, whoare inoccupation of the schedule property from past 30 years and they are paying rentsto the petitioner till date.She further submits that the Courts below drasticallyerred in coming to conclusion that ExPIis a genuine one anditis the settledstandof thepetitioner that Ex.PIisa void document obtainedby therespondent by taking advantage of theill health of Late M.Ahammed Hussain,when it is the case of the petitioner that his late father used to sign in telugu.Butnever put Left Hand Thumb impression and he was unable to move out of thehouse, without the assistance of the others.Further, both the courts ought tohave taken into consideration the crucial fact that the last line of ExPIis in handwriting, whereas the entire Ex.P1is typed one thatitself shows that Ex.P1isconcocted.She further submits that the Court below erredin believing[the]

summonsofthe2ndrespondentandthe paperversionof theaspectofpossession. She submits that the Court below failed to consider the fact that 2ndrespondent could not file any documentary proof of mutation of the name ofrespondent in respect of Ex.P1 to accept he genuineness of the Ex.P1, whereasit is the settled stand of the petitioner that no possessionis given to the1®'respondent under ExP1 nor to the Bank in question, who has granted a hugeloan to the 1respondent by creating mortgage of the schedule property, withoutconsidering the title of Ex.P1 and also without proper enquiry.He further submitsthat the Court below failed to accept the contention of the appellant andhiswitnesses and more particularly Ex.P1, whichis photo depicting the scheduleproperty and the possession of the appellant. Therefore, learned counsel for thepetition requests this Court to allow the present revision petition.

11. Per contra, learned counsel for the respondents submits that the 2ndrespondent has filed counter and in the counter he stated that revision petitionerand the 1®‘ respondent are own brothers and the 1^* respondent availed bank loanfor a sum of Rs.1,20,00,000/- and failed to pay the bank loan and was classifiedas NPA and bank has taken legal steps and conducted public auction as per dueprocedure of law.He further submits that revision petitioner and 1®* respondentcolluded each other and blackmail the 2"'' respondent and filed a civil suit for thepurpose of wrongful gain though the 2"'* respondent contesting before the specialCourt DRT under Securitization Act, but failed to add bankas a necessary partybefore thecivil court.he submits that the revision petitioner relying onthedeposition copies Ex.P1 to ExP4 before this Court without any cross examinationby the 2respondent as he was not added as a party at that time and evidence of PW.1 and PW.4 is recalled for cross examination of 2"*^ respondent, hence therevision petitioner himself not marked depositions of PW.1to PW.4 before thetrial Court as well appellate court. He submits that the revision petitioner seekinginjunction against the 2"'^ respondent only and moreoverrespondent not filedany counter before the trial Court, butrespondent added as a party to delaythe proceedings before this Court. Therefore, in view of the above circumstances,prayed to dismiss the revision petition.

12. On perusing the material available on record and on considering thesubmission of both the learned counsels, this Court observed that,it is no doubttrue that there is a photo attached to the sale certificate which contains someautos as contended by the petitioner’s counsel but the said photo is not sufficientto prove that the autos belongto the tenants of thepetitioner.It requiresevidence to prove that there are some tenants in the schedule priority under thecontrol of the petitioner and the tenants are paying rents not only t the petitionerbut also to the other legal heirs of Late M. Ahmed Hussain.These are all thefacts to be established by the petitioner during the course of trial before the trialCourt. To substantiate his evidence, the petitioner has not produced any materialand in the absence of sufficient documents in respect of the schedule property ason the date of filing of the suit, this Court feels that the Courts below have rightlydismissed the application and CMA, warrant no inference.Finding no merit in theinstant civil revision petition and devoid of merits and the sameis liable to bedismissed.

V

13. Accordingly, the Civil Revision Petition is dismissed. There shall be noordei as to costs. As a sequel, all the pending miscellaneous applications shallstand closed.

14. It is made clear that the interim order granted by this Court vide orderdated 9.8.2024 is hereby vacated.

SD/- K KASIRAO ACHARIASSISTANT REGISTRAR

//TRUE COPY//

SECTTON OFFICER

One Fair Copy to the HON’BLE DR JUSTICE K.MANMADHA RAO(For his Lordship’s kind perusal)

To,

1. The Principal District Judge, Kurnool, Kurnool District.

2. The Civil Judge (Senior Division), Atmakur, Kurnool[District.]

3. One CC to Smt. K. Paliavi, Advocate [OPUC]

4. One CC to Sri J. Janaki Rami Reddy, Advocate [OPUC]

5. Nine (09) L.R. Copies.

6. The Under Secretary, Unionof India,Ministryof Law,Justiceand Company Affairs, New Delhi.

7. The Secretary, Andhra PradeshHigh Court Advocates’AssociationLibrary, High Court Buildings, Amaravarthi.Library, High Court Buildings, Amaravarthi.

8. Three CD Copies

BSV

sree

HIGH COURT

DATED:31/12/2024

ORDER

CRP.No.1727 of 2024

DISMISSING THE C.R.P.WITHOUT COSTS

•^sovmiX0 7 FEB 2025^. Current section ^9Co//