THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL MISCELLANEOUS APPEAL No.508 OF 2022
JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)
This Civil Miscellaneous Appeal, under Order XLIII Rule 1 and
2 of CPC, is filed by the appellants/plaintiffs, challenging the order,
dated 03.08.2022, passed in I.A.No.1403 of 2021 in O.S.No.315 of
2021 by the III Additional District Judge, Malkajgiri District at
Kukatpally, whereby, the subject I.A.No.1403 of 2021 filed by the
appellants/plaintiffs under Order XXXIX Rules 1 and 2 of CPC
seeking the relief of temporary injunction restraining the
respondent Nos.1 & 17/defendant Nos.1 & 17 from carrying out
any development work in petition schedule A and B properties, pending disposal of the suit, was dismissed.
2. We have heard the submissions of Sri Vedula Srinivas, learned senior counsel, appearing for Sri G.Kalyana Chakravarthy, learned counsel for the appellants/plaintiffs, Sri Harender Pershad, learned counsel representing Sri D.Jagan Mohan Reddy, learned counsel for respondent Nos.1 & 17/defendant Nos.1 & 17 and perused the record.
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3. For convenience of discussion, the parties are hereinafter referred to, as per their array in the subject I.A.No.1403 of 2021 before the Court below.
4. The petitioners filed the subject suit in O.S.No.315 of 2021 before the Court below against the respondents seeking declaration of title and recovery of possession in respect of suit schedule A and B properties. In the said suit, the petitioners filed the subject I.A.No.1403 of 2021 seeking temporary injunction restraining the respondent Nos.1 & 17 from carrying out any development work in the petition schedule A and B properties, pending disposal of the suit. The said application was dismissed by the Court below vide impugned order, dated 03.08.2022, which led to filing of this appeal by the petitioners.
5. Learned senior counsel appearing for the appellants/ petitioners would contend that the Court below erred in holding that the petitioners failed to establish prima facie case and that the balance of convenience is not in their favour. The entire claim of the respondent Nos.1 & 17 is based on the agreement of sale derived from the Power of Attorney holder of the husband of petitioner No.1. However, as on the date of execution of sale deed basing upon such GPA, the husband of the petitioner No.1 died and 3 Dr.SA,J & NBK,J CMA No.508 of 2022 as such, the agency came to an end. Even otherwise, said unregistered agreement of sale is not a valid document and no claim can be made basing upon the same. The suit schedule property is a joint family property and it is acquired by the family of the appellants, including the husband of appellant No.1, by virtue of succession/inheritance from their ancestors. Therefore, the husband of appellant No.1 cannot execute any document in respect of suit schedule property. The joint family of the appellants filed a partition suit in O.S.No.535 of 1996 seeking partition in respect of Acs.5.20 guntas and in the said suit, the husband of the appellant No.1 was arrayed as defendant No.5 and after his death, the appellants/petitioners were impleaded as respondent Nos.21 to 24. The said suit was decreed dividing the property into 24 equal shares and each family was awarded Acs.0- 09 guntas of land. The husband of appellant No.1 got 0.09 guntas and appellant Nos.2 to 4 got 1/6th share, i.e., 0.15 guntas by virtue of the said preliminary decree. Basing upon the said preliminary decree, final decree was passed and the same was engrossed on 11.05.2017. Pending the subject suit, basing on the GPA, a sale deed was executed, even though the executant of sale deed was one of the defendants in O.S.No.535 of 1996. Under the guise of sale deed, the respondent Nos.2 to 16 sold the property to 4 Dr.SA,J & NBK,J CMA No.508 of 2022 respondent No.1 and the respondent No.1 claims to have assigned the land to respondent No.17 for the purpose of development. The Court below erred in holding that already there is an agreement of sale-cum-GPA executed in the year 1994 by Narasimulu and his brothers. Further, the finding of the Court below that the death of husband of appellant No.1 will not invalidate the title of the respondents is erroneous. Relying on the decision of the Hon'ble Apex Court in Suraj Lamp and Industries Private Limited Vs. State of Haryana1, the learned senior counsel contended that the documents that are executed basing on a GPA are invalid and cannot be ipso facto valid transactions. The Court below ought not have recorded a finding that the transaction with the respondents is genuine and that the respondents are having valid title over the petition schedule A and B properties. The Court below further erred in not considering the fact that the appellants have obtained a decree in a partition suit and it became final and any finding contrary to the decree is illegal and arbitrary. Considering the circumstances of the case, the Court below ought to have granted temporary injunction as sought in the subject I.A.No.1403 of 2021 and ultimately prayed to set aside the order under challenge and allow the subject I.A.No.1403 of 2021 as prayed for. Learned 1 AIR 2012 SC 206 5 Dr.SA,J & NBK,J CMA No.508 of 2022 senior counsel had also placed reliance on the decision of a Full Bench of erstwhile High Court of Andhra Pradesh in B.Venkata Subbayya and others Vs. N.Srirangam and others2.
6. Per contra, the learned counsel representing the respondent Nos.1 and 17 would contend that originally, one M.Linga Rao and 16 others were absolute owners of Acs.5.20 guntas of land in Survey Nos.652, 653, 654, 655 and 678 of Kukatpally. The original vendors, including M.Linga Rao, entered into an Agreement of Sale, dated 27.12.1994, for the aforementioned Acs.5.20 guntas of land in favour of one Abdulla Bin Abood and eight others for a consideration of Rs.45,00,000/- and ever since, Abdulla Bin Abood and eight others were in absolute possession of Acs.5.20 guntas of land. Pursuant to the Agreement of Sale, dated 27.12.1994, the original vendors, including M.Linga Rao, executed an Irrevocable General Power of Attorney, dated 27.03.1995, in favour of Abdulla Bin Abood for an extent of Acs.3.27 guntas of land and the said document was validated on 31.10.1998. O.S.No.535 of 1996 was filed by one of the heirs of the original vendors, after the aforementioned Agreement of Sale, claiming that the plaintiffs therein were co-owners of Acs.0-09 guntas out 2 MANU/AP/0278/1955.
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of the aforementioned Acs.5.20 guntas. The appellants herein
were arrayed as defendant Nos.21, 22, 23 and 24 in the said O.S.No.535 of 1996 and they were having full knowledge of the possession of Abdulla Bin Abood and eight others as well as the execution of the aforementioned Agreement of Sale and General Power of Attorney. In view of the fact that Abdulla Bin Abood, being a party to the said suit and the appellants herein also being parties to the suit, they did not take steps to challenge the General Power of Attorney and Agreement of Sale. M.Linga Rao passed away on 04.01.2002. Abdulla Bin Abood has sold Acs.3.35 guntas (out of Acs.3.37 guntas) to Respondent Nos.2 to 16 herein vide registered sale deed, dated 12.05.2003 and ever since, respondent Nos.2 to 16 have been in absolute possession of the aforementioned Acs.3.35 guntas. Respondent Nos.2 to 16 further sold the aforementioned Acs.3.35 guntas to the respondent No.1 herein vide registered Agreement of Sale-cum-Irrevocable General Power of Attorney, dated 28.07.2005 and ever since, respondent No.1 herein has been in absolute possession of the same. Further, the appellants, after a long gap of 28 years and after coming to know about the Agreement of Sale and General Power of Attorney as well as subsequent transactions and being well aware of the long standing absolute possession of respondents, filed the subject 7 Dr.SA,J & NBK,J CMA No.508 of 2022 suit O.S.No.315 of 2021 seeking declaration of title and recovery of possession. Respondent No.17 entered into a Development Agreement, dated 24.05.2019 with respondent No.1 and having obtained requisite building permission for construction of residential flats, commenced the construction and the construction is in full swing and as such, if any injunction is granted in favour of the petitioners, the respondents would be put to grave and irreparable loss, which cannot be compensated by any other means. The balance of convenience is not in favour of the appellants. Respondent No.17 is developing an extent of 6,667.77 square metres out of the subject land and obtained construction permission from GHMC and according to the sanctioned plan, GHMC has permitted construction of three blocks consisting of 2 cellar + stilt + 15 upper floors in Block-1(A), 1 Stilt + 15 upper floors in Block-1(B), 1 Stilt + 15 upper floors in Block-1(C) and 1 Ground + 5 upper floors in amenities block. Further, the subject suit filed by the appellants is liable to be dismissed for non joinder of necessary parties, as the appellants failed to make the GPA holder (Abdulla Bin Abood) as well as the joint sharers of Lot No.4 and 7, who were allotted shares in the partition suit along with the appellants herein as parties to the suit. Under these circumstances, the Court below rightly dismissed the subject 8 Dr.SA,J & NBK,J CMA No.508 of 2022 I.A.No.1403 of 2021. The appeal is devoid of merit and is liable to be dismissed and ultimately prayed to dismiss the appeal.
7. In view of the above rival submissions, the points that arise for determination in this appeal are as follows:
1. Whether the appellants/plaintiffs have made out a prima facie case to grant interim injunction in their favour?
2. Whether the balance of convenience is in favour of the appellants/plaintiffs to grant the relief sought in the subject I.A.No.1403 of 2021 in O.S.No.315 of 2021?
3. Whether irreparable injury would be caused to the appellants/plaintiffs in the event of refusal to grant temporary injunction?
4. Whether the order and decretal order of the Court below impugned in this appeal are liable to be set aside?
5. To what relief?
POINTS:
8. Ordinarily, the three main principles which govern the grant or refusal of injunction are (a) prima facie case; (b) balance of convenience; and, (c) irreparable injury. In grant and refusal of injunction, pleadings and documents play vital role. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis, the Court must adjudge the existence or 9 Dr.SA,J & NBK,J CMA No.508 of 2022 otherwise of a prima facie case. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the plaintiffs, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. Only on weighing competing possibilities or probabilities of likelihood of injury, an injunction would be granted. The Court should not interfere only because the property is a very valuable one. In dealing with such matters, the Court must make all endeavours to protect the interest of the parties by balancing the conveniences and inconveniences. In addition to the basic principles, temporary injunction, being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff's conduct is free from blame and he approaches the Court with clean hands.
9. In the instant case, the appellants/plaintiffs, to substantiate their contentions, placed reliance on Exs.P1 to 13 and the respondents/defendants placed reliance on Exs.R1 to R34. Ex.P1 is the certified copy of plaint in O.S.No.535/1996, which was filed by M.Ranga Rao for seeking partition of Acs.5.20 in Survey Nos.652 to 655 and 678. In the said suit, defendant No.5 is none other than the husband of petitioner No.1 herein. Ex.P2 is the 10 Dr.SA,J & NBK,J CMA No.508 of 2022 pahani to show the existence of Acs.5.20 guntas. Ex.P3 is the preliminary decree and judgment in O.S.No.535/1996. A perusal of the said document show that defendant No.5 filed written statement in the said suit admitting about execution of Agreement of Sale in the year 1994 and Power of Attorney in the year 1995 (Exs.R34 and R33 respectively). However, a perusal of Ex.P3- decree and judgment in O.S.No.535/1996 shows that there was no discussion about those documents and also about the rights of the defendant Nos.17 to 19, even though there was specific contention that the property was already sold under Agreement of Sale and later Power of Attorney was given. As mentioned earlier, defendant No.5 therein is the husband of the petitioner No.1 herein. Ex.P4 is the order of final decree in O.S.No.535 of 1996 and the petition was filed by the plaintiff therein for his entitlement of 1/24th share and, accordingly, he was allotted plot No.3 shown in Advocate Commissioner Report. Ex.P5 is another order of final decree petition under which, the petitioners herein were allotted shares. Ex.P6 is the final decree engrossed with respect to the petition A and B properties, and basing on those documents, the petitioners are claiming right over the petition A and B schedule properties. Ex.P7 is filed to show that the husband of petitioner No.1 died on 04.01.2002, which fact is not in dispute. Ex.P8 is the 11 Dr.SA,J & NBK,J CMA No.508 of 2022 Family Member Certificate given by the MRO/Deputy Collector in the name of petitioners. Ex.P9 is the certified copy of sale deed, dated 12.05.2003, executed in favour of respondent Nos.2 to 16 herein by Abdulla Bin Abood representing through Power of Attorney holder. This document is dated 12.05.2003, and as per Ex.P7, by that date, the defendant No.5 was no more. In that document, the husband of petitioner No.1 was shown as 3rd executant. Basing on this document, respondent Nos.2 to 16 gave the property to respondent No.1. Ex.P10 is the Agreement of Sale cum GPA, dated 28.07.2005 executed by respondent No.2 in favour of the respondent No.1 for an extent of Ac.3.35 guntas. Ex.P11 are the assignment agreements executed by respondent No.1 in favour of respondent No.17 for Ac.1.16 guntas and Ex.P12 is another assignment agreement executed by Respondent No.1 in favour of respondent No.17, for Ac.1.15 guntas. It is not in dispute that Exs.P11 and P12 were executed by respondent No.1 in favour of respondent No.17. Basing on those documents, respondent No.17 took up the construction work. Likewise, it is not in dispute that the respondent Nos.2 to 16 executed Agreement of Sale cum Irrevocable GPA, vide Ex.P10, in favour of respondent No.1. Ex.P13 is the complaint given by the petitioners to the police. The 12 Dr.SA,J & NBK,J CMA No.508 of 2022 admitted fact is that basing on said complaint no case was registered by the police.
10. The material placed on record reveals that the respondent No.1 entered into Agreement of Sale with respondent No.17 for making constructions over the petition schedule A and B properties. Most of the documents marked on behalf of the respondents would show neighbouring land and its situation. Ex.R5 to R31 reveal that third parties have entered into Agreement of Sale-cum-General Power of Attorney with respondent No.1 herein and the respondent No.1 in turn entered into assignment agreement with respondent No.17 for the purpose of making constructions over the petition schedule A and B properties. The crucial documents in this case are Ex.R1-Certified copy of Encumbrance Certificate, Ex.R2-Copy of Building Permission, Ex.R3-Certified copy of the sale deed bearing document No.3286 of 2003, dated 12.05.2003, Ex.R4-certified copy of Agreement of Sale-cum-General Power of Attorney bearing Document No.9025 of 2005, dated 28.07.2005, Ex.R.32-copies of photographs, Ex.R33- General Power of Attorney, dated 27.03.1995 and Ex.R34- Agreement of Sale, dated 27.12.1994. Ex.R1 is the Encumbrance Certificate which shows transactions entered into between the respondents in respect of Acs.3.25 guntas of land covered under 13 Dr.SA,J & NBK,J CMA No.508 of 2022 Ex.R33-General Power of Attorney, dated 27.03.1995, and Ex.R34- Agreement of Sale, dated 27.12.1994. Ex.R2 reveals that the respondent No.17 obtained permission from GHMC for the purpose of construction of houses over the petition schedule A and B lands. Ex.R3 is the certified copy of Sale deed, dated 12.05.2003, executed by Abdulla Bin Abood who represented the power of attorney holders. The appellants have admitted about ongoing constructions over the petition schedule A and B property by the respondent No.17. There is no denial about execution of Exs.R.33 and R34 by J.Linga Rao/husband of appellant No.1, during his life time. Ex.R34-agreemenet of sale, dated 27.12.1994, reveals that the husband of appellant No.1, along with his brothers, sold Acs.3.37 guntas of land out of Acs.5.20 guntas of land for a sale consideration of Rs.45,00,000/-. Basing on Ex.R34-agreement of sale, dated 27.12.1994, Abdulla Bin Abood (one of the agreement holder) obtained Ex.A33-General Power of Attorney, dated 27.03.1995. Thereafter, he executed sale deed under the original of Ex.P9.
11. It is the contention of the learned senior counsel for the appellants/plaintiffs that after the death of principal, Ex.P9 sale deed was executed and hence, it is not a legally valid document. As seen from the contents of Ex.R33-General Power of Attorney, 14 Dr.SA,J & NBK,J CMA No.508 of 2022 dated 27.03.1995, it is an irrevocable one. Under Ex.R34, the total sale consideration in respect of the land admeasuring Acs.3.25 guntas of land was received by the executants, including the husband of the appellant No.1. In Ex.R33, a reference to Ex.R34-agreement of sale is made. There is also reference to annexure of plan in Ex.R33, wherein, the extent of land given in Ex.R34, i.e., Acs.3.37 guntas is clearly shown on northern side and rest of the land in the suit survey numbers is shown on the southern side. It is also pertinent to state that the husband of the appellant No.1 is one of the defendants in O.S.No.535 of 1996, who admitted the execution of Ex.R33-GPA and Ex.R34-Agreement of sale. So, substantial interest was created in favour of the GPA holders. A perusal of Ex.R34-agreement of sale reveals that the husband of appellant No.1 had received the entire sale consideration of the land in an extent of Acs.3.37 guntas and in the aforementioned two documents, i.e., Exs.R33 and R34, there is no mention of the executants therein retaining any of the land with them. In the southern boundary of Ex.R33-General Power of Attorney also, they did not show any land they have retained. Further, after the death of the husband of the appellant No.1, the appellants herein were arrayed as his legal representatives and they did not dispute the genuineness of Exs.R33 and R34.
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Further, the Court below, while dealing with the subject matter, had adverted to Section 202 of the Indian Contract Act which mandates that where the agent himself has an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. Moreover, the GPA holder is not made a party to the subject suit. The sale was made in the year 1994 and Ex.R33-GPA is of the year 1995, which were not disputed by late J.Linga Rao, husband of appellant No.1. The legal representatives of J.Linga Rao, husband of appellant No.1, did not dispute the genuineness of Exs.R34 and R33 in O.S.No.535 of 1996. By executing Exs.R34 and R33, substantial interest was created in favour of the transferee(s). The said interest was not divested at any point of time. The Court below rightly relied on Hardip Kaur Vs. Kailash and others3 case, wherein the Hon'ble Delhi High Court, referring to Suraj Lamp's case (1 supra), deprecated the practice of alienation by way of agreement of sale cum power of attorney. Further, the transactions made under Ex.R34-agreement of sale cannot be said that they were not genuine. The specific case and contention of the appellants/ plaintiffs is that they have got Acs.0.10.5 guntas of land in the suit 3 193 (2012) DLT 168 16 Dr.SA,J & NBK,J CMA No.508 of 2022 survey numbers towards their share, having succeeded the same from J.M.Narasimlu @ Narasimha Rao and they are still in joint possession and ownership of the suit property. Therefore, during the pendency of suit, which is filed for partition and separate possession, their interest is required to be protected. There is no explanation as to why the appellants have filed the subject suit after the lapse of 28 years from the date of execution of Exs.R33 and R34. Moreover, they have not denied the execution of those documents by the husband of the appellant No.1 along with other persons in O.S.No.535 of 1996. There is record to show that Abdulla Bin Abood has sold Acs.3.35 guntas (out of Acs.3.37 guntas) to Respondent Nos.2 to 16 herein vide registered sale deed, dated 12.05.2003 and ever since, Respondent Nos.2 to 16 had been in absolute possession of the aforementioned Acs.3.37 guntas. There is also record to show that Respondent Nos.2 to 16 further sold the aforementioned Acs.3.35 guntas to the respondent No.1 herein vide registered Agreement of Sale-cum-Irrevocable General Power of Attorney, dated 28.07.2005 and ever since, respondent No.1 herein has been in possession. Further, the said property was given for development to respondent No.17, who obtained all the requisite permissions from GHMC and construction is going on.
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12. In view of the material placed on record, we are of the considered view that the appellants/plaintiffs failed to make out a prima facie case and balance of convenience in their favour. There is no record to hold that the appellants/plaintiffs are in possession of the subject land. The record is otherwise and it is in favour of the respondents to establish their possession over the subject land. The fact remains that there are permissions for constructions and constructions are being made over the subject property. So, no irreparable loss would be caused to the appellants/plaintiffs. This Court is in agreement with the reasons, findings and conclusions reached by the Court below.
13. We have gone through B.Venkata Subbayya's case (2 supra) relied by the learned senior counsel appearing for the appellants/plaintiffs. In the said decision, it was held that a purchaser, in a suit for partition filed by coparceners, ask to grant him equitable relief by allotting property purchased by him, but it can be done without prejudice to rights of other coparceners. There can be no dispute with regard to the said preposition of law. But in the instant case, all the shareholders (brothers of J.Linga Rao, husband of appellant No.1) have alienated the land fallen to their share under Exs.R34 and R33. Nobody is holding over the 18 Dr.SA,J & NBK,J CMA No.508 of 2022 land fallen to their share. Hence, the cited decision is not helpful to the appellants/plaintiffs.
14. For the foregoing reasons, none of the contentions raised on behalf of the appellants/plaintiffs merit consideration. The Civil Miscellaneous Appeal is lacking merits and is liable to be dismissed.
15. Accordingly, the Civil Miscellaneous Appeal is dismissed.
Miscellaneous petitions, if any, pending in this appeal shall stand closed. There shall be no order as to costs.
______________________ Dr. SHAMEEM AKTHER, J _______________________ NAGESH BHEEMAPAKA, J 28th December, 2022 Bvv