THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
Civil Revision Petition No.972 of 2021
ORDER :
This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order dt.30.04.2021 passed in Interlocutory Application No.83 of 2021 passed in O.S.No.516 of 2020 on the file of III Junior Civil Judge, City Civil Court, Hyderabad.
2. The petitioner herein is plaintiff in the above suit. The case of the petitioner/plaintiff
3. He filed the said suit for declaration of his title to the plaint schedule property and for a perpetual injunction restraining respondents from interfering or dispossessing him from the subject property. He alleged that he is in possession of the suit schedule property where he was running a shop by name Haryana Handloom Shop since 1966 through his father, that his father expired, that thereafter, he was enjoying the property by paying necessary taxes.
4. He contended that there was entry in the Town Survey Land Records in respect of the subject property as G - Abadi; that he was also issued a notice under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 by the 5th respondent and that he had also filed an application for regularization of his occupation before the ::2:: MSR,J crp_972_2021 State Government. He contended that his father and himself had been in possession for more than 50 years and he has acquired title to the plaint schedule property through adverse possession.
5. According to him, Kishore Lal Yadav (the deceased - 1st defendant) had filed R.C.No.281 of 2013 before the III Additional Rent Controller, City Small Causes Court, Hyderabad for his eviction; that he had filed a counter in the said case stating that the property did not belong to the Kishore Lal Yadav (deceased-1st defendant) as his vendor Late Ajay Kumar had no title to convey because it was Government land; that the said R.C. was allowed by III Additional Rent Controller on 21.08.2019; that Kishore Lal Yadav died in the mean time; and petitioner had preferred a Rent Appeal R.A.No.111 of 2019, and the Additional Chief Judge, City Small Causes Court, Hyderabad on 22.01.2019 had ordered stay of eviction of petitioner until further orders, and that the said appeal is pending. He also stated that he had issued notice under Section 80 of the C.P.C. since there was a threat of dispossession.
6. In the suit, the petitioner impleaded the legal representatives of Kishore Lal Yadav as defendant nos.1 and 2; the Collector, Hyderabad District; Revenue Divisional Officer, Nampally; and the Tahsildar, Nampally as defendant nos.3 to 5 in the suit.
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IA No.83 of 2021
7. After the suit was filed, the structure in the suit schedule property was destroyed in a fire mishap which allegedly occurred on 06.02.2021 and the petitioner then filed Interlocutory Application No.83 of 2021 seeking permission of Court below to raise a temporary structure in the suit schedule property, pending disposal of the suit.
8. He contended that all the goods in the shop worth Rs.5 lakhs were destroyed and he had also suffered a loss of Rs.25 lakhs on account of the said fire accident and a case was registered with the Police Station, Sultan Bazar, Hyderabad, and investigation is in progress in F.I.R.No.38 of 2021.
9. He also alleged that his family consists of a widowed mother who is a Senior Citizen, and a divorced sister and a mentally retarded brother, apart from petitioner's own wife and minor children; that the source of income for their survival was the said shop; taking advantage of the destruction of the shop, the State Government put up a board on 08.02.2021 showing that the property belongs to the Government; that for the survival of petitioner and his family members, he may be permitted to raise a temporary structure on the property to run a business as defendants / respondents were obstructing him from raising any temporary structure therein.
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The counter of respondents 1 and 2
10. Counter-affidavit was filed by respondent nos.1 and 2 disputing the contentions of petitioner and stating that the petitioner was only a tenant of Late Kishore Lal Yadav; that though the Revenue Department issued a notice under Section 7 of the Andhra Pradesh Land Encroachment Act, the said Kishore Lal Yadav filed objections thereto and also filed a Writ Petition No.32072 of 2013; that petitioner and his father, having admitted landlord and tenant relationship and had paid rents, cannot now set up a plea of adverse possession. He admitted about filing of R.C.No.281 of 2013 and the stay granted in favour of petitioner in R.A.No.111 of 2019 against the judgment in the R.C. by the Additional Chief Judge, City Small Causes Court, Hyderabad.
11. It was denied that any business was being carried on in the suit schedule property and it is denied that it was the only source of income for petitioner's family, though the fire accident was admitted. They disputed the title of the State Government and opposed grant of any permission to petitioner to construct temporary structure and commence his business.
The stand of the 5th respondent
12. The 5th respondent filed a counter on behalf of respondent nos.3 and 4 disputing the possession of petitioner over the suit schedule property and contending that the subject land is Government land and ::5:: MSR,J crp_972_2021 only the State is the title-holder, and not the petitioner or defendant nos.1 and 2. They alleged that petitioner, under the guise of certain documents, tried to encroach the suit schedule property for which notice was given under Section 7 of the AP Land Encroachment Act, 1905 on 20.05.2011; that petitioner replied to the notice on 23.05.2011, and thereafter applied for regularization under G.O.Ms.No.166 dt.16.02.2008, and that the same is pending. They also disputed the claim of defendant nos.1 and 2 and denied that petitioners suffered loss on account of fire accident. The order of the Court below
13. Before the Court below, the petitioner filed Exs.P.1 to P.24 while the respondents filed Exs.R.1 and R.2.
14. By order dt.30.04.2021, the Court below dismissed Interlocutory Application No.83 of 2021 in O.S.No.516 of 2020.
15. After noting the contentions of parties and referring to the exhibits filed by them, it observed that petitioner has set up title to the suit schedule property which is disputed by the State Government and respondent nos.1 and 2, but observed that if petitioner is permitted to raise any temporary structure in the suit schedule property it would amount to decreeing the suit; and no interim relief can be granted which would amount to decreeing the suit.
16. It observed that title to the property itself is in question; that even to erect a temporary structure, permission by the Greater ::6:: MSR,J crp_972_2021 Hyderabad Municipal Corporation under Section 428 of the Greater Hyderabad Municipal Corporation Act, 1955 is necessary, but there is no whisper with regard to petitioner approaching the Municipal offices for granting such permission; that the Court cannot go into the merits of the case at this point of time, and there are trible issues to be decided; and if permission, as sought by petitioner to raise temporary structure is granted, it would amount to a pre-trial decree and it would not be in the ends of justice to grant permission to make temporary structure by exercising inherent powers.
The present CRP
17. Challenging the same, the present Civil Revision Petition is filed.
18. Sri Kiran Palakurthi, counsel for petitioner, contended that the Court below erred in refusing to grant relief in Interlocutory Application No.83 of 2021 in O.S.No.516 of 2020 and permit the petitioner to put up a temporary structure for doing business having regard to the fact that the shop where the petitioner was doing handloom business was destroyed in a fire accident on 06.02.2021 thereby causing huge loss to petitioner. He again reiterated that if petitioner is not allowed to erect a temporary structure in the suit schedule property, grave prejudice would be caused to petitioners since their source of livelihood had been destroyed in the fire accident.
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19. On the other hand, the learned Additional Government Pleader for Appeals and Arbitration, appearing for respondent nos.3 to 5 refuted the said contentions and supported the order passed by the Court below.
Consideration by the Court
20. I have noted the contentions of both sides.
21. Admittedly, there is a serious dispute about title to the property among petitioner, respondent nos.1 and 2 and also respondent nos.3 to
5. The relief sought by petitioner is in the nature of an interim mandatory injunction.
22. In Dorab Cawasji Warden vs Coomi Sarob Warden1, the principles governing grant of such interim mandatory injunctions have been set out. The Supreme Court held as follows :
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
1
(1990) 2 S.C.C. 117
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(1) The plaintiff has a strong case for trial. That is, it
shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."
23. In Deoraj v. State of Maharashtra2 also the Supreme Court reiterated the same principles in the following terms:
"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case
-- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously 2 (2004) 4 SCC 697, at page 703 ::9:: MSR,J crp_972_2021 such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.
24. Thus, one of the elementary principles of granting relief of this nature is that the plaintiff has a strong case for trial and it should be on a higher standard than a prima facie case that is normally required for a prohibitory injunction.
25. In the instant case, the claim for title of petitioner is not supported by any document and though it is pleaded that petitioner and his family acquired title by adverse possession by being in possession for 50 years, the matter requires to be examined with reference to evidence on record as to whether such a plea is valid or not. Therefore, it cannot be said that the petitioner has been able to show a strong case of a very high standard than a prima facie case.
26. Also, since the very suit is for declaration of title and for a prohibitory injunction, relief of the nature sought by petitioner would practically amount to decreeing the suit at an interlocutory stage when there are serious contested issues to be gone into.
27. In this view of the matter, I do not find that it is a fit case to interfere with the order dt.30.04.2021 passed in Interlocutory Application No.83 of 2021 passed in O.S.No.516 of 2020 on the file of III Junior Civil Judge, City Civil Court, Hyderabad in exercise of ::10:: MSR,J crp_972_2021 jurisdiction conferred on this Court under Article 227 of the Constitution of India.
28. Therefore, the Revision fails and it is accordingly dismissed. No order as to costs.
29. As a sequel, miscellaneous petitions pending if any in this Civil Revision Petition, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date: 30.07.2021 Ndr