ORDER
1. The revision petitioner assails the order dated 18-9-2000 passed by the learned II Additional Judge, City Civil Court, Hyderabad in CMA No.158 of 2000.
2. The respondent herein filed the suit OS No.1207 of 2000 on the file of the IX Junior Civil Judge, City Civil Court, Hyderabad against the petitioner for perpetual injunction in respect of Ac.4-10 guntas of land with structures thereon, more fully described in the schedule annexed to the plaint and the concomitant petition in IANo.118 of 2000 seeking ad interim injunction pending disposal of the suit. After having heard both sides, the learned IX Junior Civil Judge by his order dated 11-4-2000 dismissed the petition. Having been aggrieved by the same, the respondent preferred an appeal in CMA No. 158 of 2000. Having heard either side the learned II Additional Chief Judge, City Civil Court, Hyderabad granted injunction by allowing the appeal. The petitioner who is the respondent in both the interlocutory application as well as the appeal is now assailing the Said order passed by the appellate Court.
3. The facts lie in a narrow compass: The respondent is the son of late Nawab Muazzam Jahi Bahadur, the second son of late Mir Osman Ali Khan, HEH the Nizam-VII. Late Mir Osman Ali Khan created a trust known as ‘Muazzam Jahi Trust’ for the benefit of his second son under a trust deed dated 8-10-1849. The trustees appointed under the trust deed purchased the property known as “Mount Pleasant” a building with its appurtenant land admeasuring Ac.24-10 guntas under a sale deed dated 1-5-1954. Later the trustees leased out the main building ‘Mount Pleasant’ to the petitioner for the purpose of forming an Education Society. Some time thereafter the trustees agreed to sell the building along with 14 acres of open land around it. There has been no written agreement of sale and no sale deed has yet been executed pursuant thereto. The petitioner has been running Engineering College in the main building ‘Mount Pleasant’.
4. It is the case of the respondent that he was recognised as the sole legal heir, and that after the death of his father on 14-9-1987 the trustees by a resolution dated 5-1-1995 handed over the property to him, and that he used to request the petitioner to raise a compound wall enclosing the main building and 14 acres of open land around it separating the western portion of 6 acres and eastern portion of Ac.4-10 guntas but the petitioner used to postpone the same and that when he got issued a notice to the petitioner requesting inter alia to raise a compound wall, the petitioner sent reply admitting the respondent’s right, possession and occupation over the suit property and the western portion of Ac.6-00, of course denying the allegation of interference and that the petitioner constructed a compound wall separating the western portion of Ac.6-00 but deliberately failed to put up the compound wall separating the eastern portion of Ac.4-10 guntas, and that when the respondent took upon himself to put the barbed wire fencing at his cost and entrusted the work to one M.S. Khan the petitioner prevented the labourers from taking up the work.
5. It is the stand of the petitioner that the Society has come into possession of the entire extent of Ac.24-10 guntas of land with the building ‘Mount Pleasant’ as a lessee under the trustees which is covered by a compound wall all around and has been running several educational institutions therein under the name of Sultan-ul-Uloom Education Society including the college of Engineering. There has been an agreement of sale in respect of the said land in favour of the petitioner by the trustees and the petitioner has been in possession of the entire land as an agreement holder thereof since then and therefore the respondent has never been in possession of the entire property or a part of it at any point of time. Since there had been litigation pending in respect of Ac.6-00 of land situate on the western side of the building ‘Mount Pleasant’ between the trustees and Smt. Fathima Fouzia, the petitioner constructed a compound wall between the Ac.6-00 of land and the rest of the land. However, the petitioner society alone continues to be in possession of the said Ac.6-00 of land also.
6. At the time of enquiry, Exs.P1 to P3 were got marked on the side of the respondent in support of his plea but no evidence was adduced on the side of the petitioner herein. The documents being the letter dated 5-1-1995 under which the possession was said to have been delivered to the respondent and the two exchanged legal notices. After considering those documents and having heard on either side the learned IX Junior Civil Judge was of the view that the respondent failed miserably to make out a prima facie case and as the petitioner society has been running educational institution by using the open land for the purpose of playing cricket etc., games, refused to grant injunction. At the time of hearing the appeal, Ex.P4 came to be marked on the side of the respondent appellant. The appellate Court considering Ex.P4 came to an altogether different conclusion that what had been leased out to the petitioner was only the building ‘Mount Pleasant’ with appurtenant land admeasuring 1000 square meters and 14 acres of open land but not the disputed land admeasuring Ac.4-10 guntas. The learned Judge considering the reply notice given by the petitioner has come to a conclusion that there has been an admission on the part of the petitioner about the possession of the respondent over the disputed property. Therefore, the appeal was allowed.
7. The petitioner seeks to file certain documents as additional evidence along with the revision petition. The respondent who has filed the vacate stay petition has also sought to file certain documents so as to further strengthen his case. While it is the case of the petitioner that it has been in possession of the entire land which is admittedly surrounded by a compound wall all around admeasuring Ac.24-10 guntas initially as a lessee and later as purchaser under an agreement of sale, it is the specific case of the respondent that what has been agreed to be sold is only the building ‘Mount Pleasant’ with its appurtenant site admeasuring thousand square meters and open site admeasuring 14 acres leaving 6 acres of disputed land on the western side and A.4-10 guntas of open site with buildings thereon on eastern side. The site of Ac.4-10 guntas with the buildings thereon situate on the eastern side of the main building ‘Mount Pleasant’ is now the subject-matter of dispute between the parties inter se. In fact the western portion admeasuring 6 acres has also been the subject-matter of dispute between Smt. Fathima Fouzia and trustees. Going by arithmetical calculations, it is sought to be shown before me by the learned Counsel for the respondent that the disputed property admeasuring Ac.4-10 guntas has not been the subject matter of sale between the trustees and the petitioner inter se and as the respondent is admittedly the owner of the property and as trustees delivered the property to him, the title and possession vest with the respondent. In fact, the lower appellate Court also proceeded on the same lines and has ultimately come to the conclusion after having perused the Exs.P1 to P4 that the disputed property admeasuring Ac.4-10 cents has not been included in the earlier lease and the subsequent agreement of sale. Thus, the appellate Court has come to the conclusion that the respondent has been in possession of the disputed land and the petitioner failed to show his possession over the entire extent of Ac.24-10 guntas. It may be mentioned here that the IX Junior Civil Judge in his order was of the view that Ex.P1 document alone is not sufficient to show the possession of the respondent over the disputed property and he having approached the Court for an equitable relief of injunction should show prima facie case and as he miserably failed to show prima facie case refused to grant injunction. Ex.P1 is a letter dated 5-1-1995 addressed by the trustees to the respondent informing the respondent inter alia that he was entitled to deal with the immovable property of Prince Muazzam Jah Trust except the main building Mount Pleasant with its appurtenant land admeasuring 1000 square meters and 14 acres of open land only which property was covered by an agreement of sale. This correspondence between the Secretary of the trust and the respondent will not bind the petitioner society if the petitioner society is able to show that the subject-matter of agreement of sale in between the society and the trustees covers the entire property. In this connection the petitioner seeks to rely upon some correspondence between the society and the trustees, inasmuch as there is no written agreement of sale as such in between the parties. The correspondence includes the letters dated 14-3-1985, 16-1-1988 and 11-4-1989. These documents certainly throw light on the contentious issue between the parties as to what is the subject-matter of agreement of sale between them. Unfortunately, no documents have been filed on the side of the petitioner either before the lower Court or before the appellate Court.
8. As regards the factum of possession, no evidence has been adduced on either, side with reference to which the point which is very much germane for consideration in an application of this sort could be effectively decided. Sri K. Prathap Reddy, learned senior Counsel contends that the title obviously vests with the respondent till it is shown that the disputed property has been the subject-matter of an agreement of sale and once there is no doubt about the title possession follows the title. It is no doubt true that there is a presumption under law that possession follows title. However, the said presumption can be invoked when the property is such that no effective possession can be shown on either side. Now several documents showing the payment of tax to the corporation, approved site plans for the purpose of constructing a building, photos showing the use of the land by the students of the colleges being run by the society by means of an additional evidence. On the side of the respondent as aforesaid certain documents have also been sought to be filed along with the vacate stay petition which include original trust deed and the original sale deed under which the whole property was purchased by the trustees, original lease deed and the letter dated 10-1-1981 addressed by the Secretary of the society to the Additional Secretary of the trust among other documents. The endeavour as aforesaid on the side of the respondent is to show by arithmetical calculations that what was agreed to be sold was only main building ‘Mount Pleasant’ with its appurtenant site admeasuring thousand square meters and the vacant land of 14 acres excluding six acres on the western side and Ac.4-10 guntas on the eastern side. In some of the letters the schedule of the property sought to be sold pursuant to the agreement between the parties inter se has been given.
9. It is settled law that boundaries would prevail over extents. Either the number covering the land or the extent of the land given in the document is only criterion. When there is difference between them and the boundaries mentioned in documents the description of the property as given in the schedule with reference to the boundaries will always prevail than the number covering the property or the extent of the property given in the document. It seems the western portion of Ac.6.00 has also been included subsequently in the agreement of sale. Since there is no written agreement of sale between the parties it is expedient in the interest of justice to consider the letter correspondence between the petitioner society and the trustees some of which are now sought to be filed on the side of the petitioner and some on the side of the respondent. While exercising revisional jurisdiction, it is not expected of to reappraise the entire evidence perusing all the documents which are now sought to be filed by means of additional evidence on either side, since this Court is expected to see as to whether the Court below has exercised its jurisdiction properly and whether the impugned order suffers from any illegality or material irregularity or whether it would occasion any failure of justice. As afore discussed the very premise on which the lower appellate Court proceeded is not correct since the respondent is seeking injunction on the basis of his possession.
10. What is very much germane for consideration is possession over the disputed property by either of the parties to the litigation. In fact the Apex Court in Dalpat Kumar v. Prahlad Singh, , held as follows:
“The existence of prima facie right and infraction of the enjoyment of the right is a condition for the grant of injunction and that prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial and only prima facie case is substantial question raised bonafide which needs investigation and a decision on merits.”
In Gujarat Bottling Company Limited v. Coca Cola Company, , the Apex Court observed thus:
“The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests – (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies. In order to protect the defendant while granting an interlocutory injunction in his favour the Court requires the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial.”
11. Following the said judgment and The American Cyanamid Company v. Ethicon Limited, 1975 (1) All.ER 504, the Apex Court very recently in Colgate Palmolive (India) Limited v. Hindustan Lever Limited, , laid down certain specific considerations in the matter of grant of interlocutory injunctions thus:
“The basic being non-expression of opinion as to the merits of the matter by the Court, the other considerations are (i) extent of damages being an adequate remedy; (ii) protect the plaintiff’s interest for violation of his rights though however, having regard to the injury that may be suffered by defendants by reason therefor; (iii) the Court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others; (iv) no fixed rules of notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case-the relief being kept flexible, (v) the issue is to be looked at from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case; (vi) whether the grant or refusal of injunction will adversely affect the interest of the general public which can or cannot be compensated otherwise.”
12. Either the first Court or the lower appellate Court has not considered it fit to impose any conditions while granting injunction or refusing to grant injunction. The Apex Court in Mahadeo Savalaram Shelka v. Pune Municipal Corporation, , held as follows:
“That while exercising discretionary power the Court should also adopt the procedure of calling upon the plaintiff to file a bond to the satisfaction of the Court that in the event of his failing in the suit to obtain the relief asked for, he would adequately compensate the defendant for the loss ensued due to the order of injunction granted in favour of the plaintiff.”
This Court in Saraswathi v. Veerabhadra Rao, 1985 (1) APLJ 277, expressed that it is within the power of the Court to impose terms while granting injunction or refusing to grant injunction for the purpose of effecting justice in between the parties. The guidelines given in these judgments have been totally lost sight of by both the Courts below. Furthermore, it is not expedient to express any opinion on merits. The Court should proceed only on prima facie consideration of the evidence.
13. Having regard to the fact that important evidence which might shed light on the merits of the case has not been produced and the parties now seek to file certain documents by means of additional evidence before this Court and having regard to the legal position as discussed supra, and as this Court while exercising its revisional jurisdiction is not expected to appraise the evidence afresh it is expedient to remand the matter back to the lower Court for fresh consideration in the light of the observations made by this Court in the order supra.
14. Revision petition is therefore allowed and the impugned order is set aside and the matter is remitted back to the Court of the IX Junior Civil Judge to have a fresh look at the matter and adjudicate the same in the light of the observations made by this Court in this order as expeditiously as possible preferably within a period of two months from the date of receipt of a copy of this order. In the circumstances, the costs should abide the result.