THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.139 OF 2022
JUDGMENT: (Per Hon'ble Dr.SA,J)
This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of
C.P.C., is filed by the appellant/defendant No.1, aggrieved by the
order and decree, dated 16.11.2021, passed in I.A.No.609 of 2021
in O.S.No.203 of 2021, by the learned XXV Additional Chief Judge,
City Civil Court, Hyderabad, whereby the subject Interlocutory
Application filed by the respondent No.1/plaintiff, under Order
XXXIX Rules 1 and 2 read with Section 151 of C.P.C., seeking to grant temporary injunction restraining the appellant/defendant No.1 and respondent Nos.2 and 3/defendant Nos.2 and 3, their henchmen, agents etc., from alienating, transferring, selling or creating third party interest in and over the suit schedule properties, pending disposal of the Suit, was allowed.
2. Heard Sri Vinod Kumar Deshpande, learned Senior Counsel representing Sri Sharad Sanghi, learned counsel for the appellant/defendant No.1; Sri V. Seetharama Avadhani, learned counsel for respondent No.1/plaintiff, and perused the record. 2
Dr.SA,J & NBK,J CMA.No.139 of 2022
3. In spite of service of notice, there is no representation for respondent Nos.2 and 3/defendant Nos.2 and 3.
4. After hearing the learned counsel for both the parties, to safeguard the interest of the respondent No.1/plaintiff, this Court was pleased to pass an order on 19.12.2022, which reads as follows:
"Heard. Perused the record.
The Court below vide impugned order dated 16.11.2021, passed in I.A.No.609 of 2021 in O.S.No.203 of 2021, was pleased to restrain the appellant/defendant 1 and respondents/defendants 2 and 3, by way of temporary injunction from alienating, transferring, selling or creating third party interest over the suit schedule property admeasuring an extent of 2469 sq.mts, Plot No.270, Road No.10, Jubilee Hills, Hyderabad.
It is submitted on behalf of the appellant/defendant No.1 that only an extent of 1000 sq.mts of land is open for partition in the suit schedule subject property and the rest of the land exclusively belongs to appellant/defendant No.1.
Sri K.V.Bhanu Prasad, learned counsel representing for Sri V.Seetharama Avadhani, learned counsel for the respondent/plaintiff No.1, would contend that the entire land is open for partition. But the material placed on record reveals something otherwise than the submissions made by the learned counsel for the respondent/plaintiff No.1. It is also expressed that the Development Agreement, dated 23.04.2021 needs to be registered.3
Dr.SA,J & NBK,J CMA.No.139 of 2022 It is made out from the record that the respondent/plaintiff No.1 has joint interest along with other parties in respect of an extent of 1000 sq.mts of land, which is part and parcel of the suit schedule property. Compromise proposals have also been made in between the parties. An affidavit is filed before this Court that the appellant/defendant No.1 would not alienate the joint property of the parties i.e., an extent of 1000 sq.mts.
In view of these circumstances, appellant/defendant No.1 is permitted to register the Development Agreement, dated 23.04.2021, or a fresh Development Agreement incorporating the same terms and conditions, as mentioned in the Development Agreement, dated 23.04.2021.
The appellant/defendant No.1 intends to get the Development Agreement registered within a week.
The registration of the Development Agreement shall not cause any prejudice to any of the parties.
Post on 27.12.2022."
5. In terms of the said order, dated 19.12.2022, a Development Agreement-cum-Irrevocable General Power of Attorney, dated 24.12.2022, was registered in the office of the Joint Sub-Registrar, Banjarahills (R.O.), vide document No.8481/2022. The registration of the said document has been conceded by both the parties on record.
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Dr.SA,J & NBK,J CMA.No.139 of 2022
6. The appellant/defendant No.1 filed an Affidavit, dated 05.12.2022, before this Court. Paragraph No.8 of the said affidavit reads as follows:
"It is respectfully submitted that the Petitioner undertakes not to alienate an extent of 15500 Sq. Ft, which is 40% of my total share out of the proposed constructed area, corresponding to the entire exempted retainable area 1000 Sq. Mtrs., in favour of any third party during the pendency of the present suit."
7. It is culled out from the record that the respondent No.1/plaintiff has got interest in an extent of 1,000 Square Meters of land covered by the suit schedule property. The developed constructed area in relation to 1,000 Square Meters of land is coming to 15,500 Square Feet. The undertaking reflects that the appellant/defendant No.1 would not alienate the said extent of 15,500 Square Feet of land, which is 40% of the total area i.e., equivalent to retainable area of 1,000 Square Meters. It is already indicated that the said undertaking would safeguard the interest of the respondent No.1/plaintiff.
8. In view of these circumstances, the appellant/defendant No.1 shall not alienate the extent of 15,500 Square Feet of the 5 Dr.SA,J & NBK,J CMA.No.139 of 2022 subject land, which is 40% of the total share out of the proposed constructed area, corresponding to retainable area of 1,000 Square Meters of land, in favour of the third parties during the pendency of the subject Suit. In relation to rest of the area, there is no impediment to the appellant/defendant No.1 to alienate the same to third parties.
9. With the aforementioned observations and directions, this appeal is disposed of, without prejudice to the rights of the parties in final determination of the subject Suit.
Miscellaneous Petitions, if any, pending in this appeal, shall stand closed. No order as to costs.
______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J Date: 27.12.2022 DSU/MD