K Rammohan Rao vs M. Abdul Moiz Khan
2021 Latest Caselaw 677 AP

  IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                 &
          HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                 WRIT APPEAL No.365 of 2020

                (Taken up through video conferencing)


   1. K.Rammohan Rao S/o.Venkateswara Rao,
      Aged about 64 years, Occ: Business,
      r/o.D.No.4/209-5-2, Mamata Nagar,
      Santanpuram, Kurnool,
      Kurnool District and another.       .. Appellants/
                                             Petitioners/
                                             Respondents No.4&5
                              Versus


   1. M.Abdul Moiz Khan
      S/o.late Abdul Hafeez Khan,
      Aged 83 years, Occ: Business,
      R/o.H.No.56/92, E-Fort, Kurnool,
      Kurnool District and 3 others.          .. Respondents/
                                                 Writ Petitioner/
                                                 Respondents.


 Counsel for the Appellants       :   Mr. Y.V.Ravi Prasad, Sr.Counsel
                                      assisted by Mr. Venkat Chalasani

 Counsel for respondent No.1      :   Mr. M.R.S.Srinivas


 Counsel for respondent No.2 to 4:    Mr. Suresh Reddy Kaluva


                    J U D G M E N T (ORAL)

Date: 08.02.2021

(per Arup Kumar Goswami, CJ)

This Writ Appeal is presented against the order dated

03.11.2020 passed in I.A.No.2 of 2018 in W.P.No.31999 of 2018.

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                                                               W.A.No.365 of 2020

2. In I.A.No.1 of 2018, an interim order was passed on

06.09.2018 directing to maintain status quo with regard to the

subject premises, which is Door No.52/198, Survey No.35/5C1 A1

of Ward-52, besides Ujala Gift Shop, Near Old Bus Stand Road,

Kurnool. An application for vacating the aforesaid order was filed,

which is registered as I.A.No.2 of 2018. The Writ Petition was

filed basically challenging the building permit

No.1016/1544/B/KURL/OVR/2017 dated 18.01.2018 granted in

favour of the respondents No.4 and 5 by the respondents 2 and 3

and also to direct the respondents 2 and 3 to demolish the

unauthorized constructions made by the respondents No.4 and 5,

who are the appellants herein.

3. Mr. Y.V.Ravi Prasad, learned Senior Counsel for the

appellants, submits that the learned single Judge was wrong in

holding that there was an order restraining further construction

and when the premise, on which the impugned order was passed

is on a wrong assumption, the order declining to vacate the

interim order, cannot be sustained in law. It is also submitted

that in the suit, which the learned Single Judge refers to, the

appellants were not parties and, therefore, when the building

permission has been granted, there can be no justification for not

allowing the appellants to raise construction. In support of his

submission, he places reliance on the judgment of the Hon'ble

Supreme court in the case of Mandali Ranganna and others vs.

T.Ramachandra and others reported in

MANU/SC/7567/2008, which was also placed before the

learned single Judge.

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                                                            W.A.No.365 of 2020




4.     Mr.    M.R.S.Srinivas,     learned     counsel     appearing       for

respondent No.1/writ petitioner submits that, in gross violation of

an injunction order dated 29.09.2018, restraining the vendor of

the appellants, viz., K.Tukaram, from alienating the property, the

suit property was sold and registered in favour of the respondents

No.4 and 5. Therefore, in the facts and circumstances of the

case, the learned single Judge was justified in not vacating the

order of status quo passed earlier.

5. We have considered the submissions of the learned counsel

for the parties and perused the material on record.

6. Learned Single Judge recorded as follows:

"This Court after hearing both the learned counsel notices

that the order dated 29.09.2015 passed in I.A.No.97 of 2015 in

O.S.No.71 of 2015, is an order passed after hearing the parties.

In that order, at page 18, it is also mentioned that the 3rd

respondent-Thukaram executed an agreement of sale in favour

of K.Ram Mohan Rao on 02.04.2015. This K.Ram Mohan Rao is

the deponent of the vacate stay petition. After discussing the

pleadings and other issues, the trial Court came to the

conclusion that if the 3rd respondent-Thukaram makes any

further construction or alienates the petition schedule property,

the petitioner will suffer serious injury. Therefore, this Court

notices that on 29.09.2015, there was an express order passed

against the said K.Thukaram-respondent No.3 from alienating

the property. However, on 26.10.2015, which is about a month

thereafter the property was sold and registered in favour of

respondent Nos.4 and 5. This is the issue which has to be 4 HCJ & CPK, J W.A.No.365 of 2020

decided by an appropriate Court at the appropriate time. In the

vacate stay petition, a copy of the plaint in O.S.No.107 of 2016

is enclosed in which it is asserted that the vacate stay

petitioners are running the hotel 'Ajantha' in the said premises

after purchasing the same on 26.10.2015 from Thukaram. This

fact is also highlighted in the vacate stay petition and the

arguments. Learned Senior counsel wanted further permission

to be granted to complete the works to enable the vacate stay

petitioners to enjoy the property. He relied upon the judgment

of the Hon'ble Supreme Court in Mandali Ranganna's case

(1 supra). However, this Court notices that the said judgment

was passed in the peculiar facts and circumstances of that case.

There was a partition of 1924 and the suit was actually filed in

2003. When the matter went up to the Apex Court, the Hon'ble

Supreme Court noticed for certain reasons constructions have

come up and therefore, the order was passed in the peculiar

circumstances of the cases. But if the facts of the present case

are noticed, there was a prohibitory order against the present

vendors of the vacate stay petition, yet he registered the sale

deeds. This factum, this Court cannot lose sight of. In addition,

there is an order restraining the further construction along with

this order against and also the further alienation. In view of the

order passed by the trial Court in the suit, this Court in this writ

therefore cannot grant permission to the vacate stay petitioners

to complete the constructions. This Court cannot also express

any opinion on the issue whether the petitioners have acquired

valid title and/or are innocent purchasers etc. This is essentially

an area for the trial Court to decide on merits.

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                                                           W.A.No.365 of 2020

Therefore, passing an order as sought for vacating the status

quo or modifying it in any manner would amount to indirectly

modifying the order of the trial Court which clearly said that the

3rd respondent should not make any further constructions.

What cannot be directly done cannot be done indirectly or vice

versa."

7. That there was an injunction order dated 29.09.2015

restraining the vendor of the appellants from transferring the suit

property, is not disputed by Mr.Y.V.Ravi Prasad. In the context

aforesaid, it is observed by the learned single Judge that the same

is an issue which is to be decided by an appropriate Court at an

appropriate time. The learned single Judge has also distinguished

the decision of the Hon'ble Supreme court in Mandali Ranganna

(supra). In that case, during pendency of the suit, original

defendants executed a registered deed of lease on 15.12.2004 in

favour of respondent No.12 therein and had delivered possession

of the property to him. It was only after the registered deed as

well as the deed of rectification were executed, an application for

grant of injunction against the defendants/respondents was filed

restraining them from digging pits, putting up constructions etc.,

during the pendency of the suit. On the other hand, in the instant

case, there was already an injunction in place restraining

alienation of property, but even then, the vendor had transferred

the property to the appellants. In that circumstance, it is not

material whether there was an order restraining a third party from

raising construction.

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                                                     W.A.No.365 of 2020

8. In view of the above discussion, we find no good ground to

interfere with the order of the learned single Judge. Accordingly,

the Writ Appeal is dismissed. However, considering the facts and

circumstances of the case, we request the learned single Judge to

dispose of the matter as early as possible. We reserve liberty to

the appellants to mention before the learned single Judge for

listing of the case at an early date.

No costs. Pending miscellaneous applications, if any, shall

stand closed.

ARUP KUMAR GOSWAMI, CJ                       C. PRAVEEN KUMAR, J



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