Tadiboina Gurumurthy 9 Ors vs Tadiboina Tataiah Died 16 Ors
2022 Latest Caselaw 857 AP

                  THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                               I.A.Nos.2 of 2021
                                       In
                              A.S.No.915 of 2010

ORDER:

I.A.No.2 of 2021 is filed under Order XXXIX Rule 1 and Section 151 of

the Code of Civil Procedure, 1908 ('the Code') seeking interim injunction

restraining the 5th respondent, her supporters and associates not to change the

nature or physical features including alienation of items 2 to 4 of the schedule

property in O.S.No.154 of 1998 on the file of XI Additional District and Sessions

Judge (FTC), Guntur at Tenali, pending disposal of A.S.No.915 of 2010 on the

file of this Court.

2. Heard learned counsel for the parties.

3 (a) Certain factual aspects of the case relevant to this petition are as

follows:

The petitioners in I.A.No.2 of 2021 are the plaintiffs 3, 5, 6, 7, 11, 14,

16, 17, 18 and 20. Plaintiffs 3, 5 and 6 died during pendency of the appeal.

I.A.No.6 of 2021 is filed to condone delay of 2101 days in filing application to

set aside the order of abatement for not bring the legal representatives of the

deceased 6th appellant. I.A.No.7 of 2021 is filed to set aside the order of

abatement caused due to the death of the 6th appellant. I.A.No.8 of 2021 is

filed to bring on record the legal representatives of deceased 6th appellant, as

respondent nos.18 to 20.

(b) Though there are 17 respondents, out of whom respondent nos.1, 3, 4,

8, 12 and 16 died, the relief in I.A.No.2 of 2021 is sought against only

respondent No.5.

(c) The appellant no.2 who is the plaintiff No.5 in O.S.No.154 of 1998 has

sworn to the affidavit filed in support of I.A.No.2 of 2021.

(d) The suit, O.S.No.154 of 1998, was filed for declaration that the plaintiffs

got 6/7th share in the suit schedule items 1 to 4 and for recovery of their

possession and also for cancellation of the registered sale deed, dated

07.09.1994, and the registered gift deed, dated 07.09.1994, executed by

Tadiboina Venkat Ratnam in favour of Tadiboina Jyothirmai, who is the 5th

defendant in O.S.No.154 of 1998 and 5th respondent in the appeal. The suit

was dismissed by common judgment and decree dated 23.12.2009. O.S.No.154

of 1998 was decided along with O.S.No.122 of 2001 (old no.95 of 1998), which

was tried with it by recording common evidence.

4. The case of the petitioners, in brief, is as follows:

(a) Even before arguments were heard in the aforesaid suits, Tadiboyina

Chiranjeevi Seetharamanjaneyulu, who is the plaintiff in O.S.No.122 of 2001

died. But, his legal representatives were not brought on record by the date of

pronouncement of judgment on 23.12.2009. The plaintiffs, who are appellants

in A.S.No.263 of 2010 filed against the decree and judgment passed in

O.S.No.122 of 2001, took a plea that the judgment and decree passed in favour

of a dead person is null and void and unenforceable in law. Item no.2 of the

schedule property in O.S.No.154 of 1998 admeasuring 111 square yards

comprising of Madras terraced house bearing D.No.7-19/1, in T.S.No.80 of

Tenali Town and item nos.3 & 4, which are two shops admeasuring 23.3 square

yards and 14 square yards respectively with D.No.7-11-10 of T.S.No.80 of Tenali

Town are situated adjacent to one another. The road known as Gopal Reddy

street is situated towards East of items 3 & 4. To the West side of these shops,

item No.2 is situated. Akkalavari Street is on the Northern side of items 2 to 4.

Thus, properties in items 2 to 4, totally admeasuring 148 square yards, have

become very valuable being situated abutting two main roads in a commercial

locality of Tenali Town. The 5th respondent has been receiving rents from

items 3 & 4 all along.

(b) Taking advantage of the fact that some of the appellants have become

aged and some of them having passed away during the pendency of the

appeals, the 5th respondent, with the assistance of her children, associates and

followers got items 3 & 4 shops vacated about two months back and has been

making serious efforts to alienate items 2 to 4 to bring third parties into the lis.

She is also contemplating to demolish the Madras terraced house in item no.2

and items 3 & 4 to construct a new building in the entire premises admeasuring

148 square yards. Her acts would result in irreparable loss and damage to the

appellants in case the appeals are allowed unless interim injunction is granted.

It would also avoid multiplicity of proceedings and safeguard interests of both

the parties pending the appeal.

5. The 5th respondent filed counter affidavit. The averments of the

counter, in brief, are as follows:

The legal representatives of the plaintiff in O.S.No.122 of 2001 were

brought on record, vide orders dated 07.02.2009 in I.A.No.5 of 2009 in

O.S.No.122 of 2001, which became final as no appeal was filed. Item no.2 of

the plaint schedule property in O.S.No.154 of 1998 is same as item no.1 of the

plaint schedule property in O.S.No.122 of 2001. The suit in O.S.No.122 of 2001

was decreed in favour of the husband of the 5th respondent, vide common

judgment dated 23.12.2009. The suit in O.S.No.154 of 1998 in respect of all

items of the plaint schedule property was dismissed. The 5th respondent got

item Nos.3 & 4 of the plaint schedule property under registered sale deed and

gift deeds dated 07.09.1994. After dismissal of the suit, she had executed a

registered gift deed dated 19.07.2017 in respect of the property covered by

items 3 & 4 of the plaint schedule property in O.S.No.154 of 1998 in favour of

his son. Likewise, she had also executed a registered gift deed dated

01.09.2020 in respect of property of an extent of 27.65 square yards, being her

undivided 1/4th share, in favour of her son. In pursuance of the gift deeds, her

son obtained permission for demolition of the old building and for construction

in Tenali Municipality vide orders dated 24.08.2021. He obtained mortgage

loan of Rs.20 lakhs on 01.09.2021 from Chaitanya Godavari Grameena Bank,

Guntur, for the said purpose and started demolition of the old building. While

so, on 10.11.2021, the 2nd appellant tried to stall the work with the help of

police. The appeals were filed in the year 2010 and all these years, the

petitioners kept quiet without proceeding with the matters. The petitioners

have no manner of right, title or possession over item nos.1 to 4 of the plaint

schedule property in O.S.No.154 of 1998. This Court granted injunction on

15.11.2021 before which time, the 5th respondent had executed registered gift

deeds. The petitioners, under the guise of injunction orders, are trying to

interfere with the construction activity. The appeals were not filed against

the legal representatives of the husband of the 5th respondent though they

were brought on record long back in 2009. Hence, the interim injunction

order dated 15.11.2021 granted in I.A.No.2 of 2021 be vacated else the 5th

respondent will be put to irreparable loss.

6. The main contention of the petitioners is that the 5th respondent is going

to alienate the property and alter the nature of the property by demolishing

and reconstructing the structures in item nos.2 to 4 of the schedule property.

The contesting respondent, i.e., the 5th respondent does not dispute the fact of

the proposal for changing the nature of the property by demolishing and

reconstruction of the existing structures. Further, it is contended that

respondent No.5 has already alienated the properties by way of gift to her son

under two registered gift deeds in the year 2017 itself and further that her son

has obtained loan of about Rs.20 lakhs from the Bank for the purpose of raising

new constructions. Thus, from the admitted facts, it is clear that the

apprehension of the petitioners is well founded. However, for granting the

relief of interim injunction, the petitioners shall show existence of prima facie

case, balance of convenience and irreparable loss.

7. Insofar as prima facie case is concerned, no statement is made in the

affidavit supporting the petition. But the grounds of appeal would show how

the judgment and decree impugned are questioned on merits. Any

observations of this Court on the merits of the rival contentions would be

premature at this stage. What is to be seen is the existence of dispute which

requires to be decided and such prima facie case exists in this case as the

appellants say that the respondents have not proved the Will under which the

respondent no.2 is claiming title and rights over the suit schedule property and

that the burden of proof heavily casts upon the party to prove the Will in

accordance with the provisions of the Evidence Act.

8. The learned counsel for the 5th respondent placed reliance on the

decision of this Court in Hari Vasudeva Sarma v. Hari Naga Sri Venkata

Krishna Murthy1, wherein the interim injunction was refused holding that there

is no prima facie case since extent of property sold by father/karta of joint

family is less than the share which the father is entitled. This decision does

not help as the context in which the injunction was refused is different.

9. Moreover, mere existence of a prima facie case does not entitle the

petitioners to get the relief of interim injunction. Insofar as balance of

convenience is concerned, the petitioners must be able to demonstrate that

the petitioners would be put to more hardship by refusing the relief of

injunction than the hardship likely to be caused to the respondent by granting

the relief against the respondents.

10. In the present case, the property has already been alienated by way of

gift. Therefore, there is no justification for the petitioners in asking the relief

against the 5th respondent not to alienate the disputed properties. But

2008 (1) ALD 452

I.A.No.9 of 2021 has been filed to implead him in the appeal as well as all

pending interlocutory applications. If he is added now to this petition the

interim order cannot automatically extend against him as a party to the

petition. He must also be given opportunity of hearing. Thus, it is as much

equal as filing a fresh petition against him and moreover pleadings in petition

also need to be amended to make pleadings specifically as against him which

are not asked so far.

11. Insofar as changing the nature of the property in dispute is concerned, it

is not the 5th respondent, who is making changes but the alienee is proposing to

make the changes. So far the alienee is not a party to this petition. However,

as the relief is claimed not just against the 5th respondent, her supporters etc.,

whether the relief sought binds the alienee, who is the son of the 5th

respondent as well, because the alienation is made pending the lis and to his

knowledge of the pendency of the lis, is another aspect and the same is not a

matter argued.

12. It is to be seen whether refusal to grant of the relief of interim

injunction would cause hardship to the petitioners. In this regard, it is

submitted by the petitioners that if the property is constructed by raising loan

from a bank, even if the petitioners win the appeal and the loan is not

discharged by the respondents, the bank would sell the property to realize the

loan and thereby, there will be hardship to the petitioners. From the

statement on record, in the absence of any evidence, it is not known whether

the loan is sanctioned or disbursed or whether the suit property is the security

to the loan or some other property was given as security for raising such loan.

Further, it is not known whether the bank was put to notice of the pendency of

the litigation. Since the loan was recently secured, whereas the lis is pending

for about three decades, the rights of the bank to proceed against these

properties are also circumscribed by many other aspects. Under these

circumstances, any construction made pending the lis is subject to the outcome

of the result in the appeal and the interests of the petitioners is in a way

protected in that regard.

13. Regarding the aspect of irreparable loss, the learned counsel for the

petitioners placed reliance on the decision of the Supreme Court in Maharwal

Khewaji Trust (Regd.), Faridkot v. Baldev Dass2, wherein at paragraph no.10,

it was observed that unless and until a case of irreparable loss or damage is

made out by a party to the suit, the Court should not permit the nature of the

property being changed which also includes alienation or transfer of the

property which may lead to loss or damage being caused to the party who may

ultimately succeed and may further lead to multiplicity of proceedings. It was

further observed that in the said case, no such case of irreparable loss is made

out except contending that the legal proceedings were likely to take a long

time, therefore, the respondent should not be permitted to put the scheduled

property to better use and in those circumstances, the lower appellate Court

and the High Courts were not justified in permitting the respondent to change

the nature of the property, even on conditions. The Supreme Court restored

the interim injunction granted by the trial Court.

14. Learned counsel for the 5th respondent further placed reliance on the

decision of a Division Bench of this Court in D.S. Rao v. G. Audemma3, wherein

this Court observed that the plaintiffs are not entitled to interim injunction

since the person who kept quiet for long time and allowed others to deal with

the property exclusively would not be entitled to an order of injunction and

that the Court should not interfere only because the property is a very valuable

one. It was also observed that in dealing with such matters of grant or refusal

of injunction, the Court must make all endeavours to protect the interest of

the parties by balancing the conveniences and inconveniences, particularly as

(2004) 8 Supreme Court Cases 488

2020 (1) ALD 368 (AP) (DB)

temporary injunction is an equitable relief which will be granted when a

plaintiff's conduct is free from blame and approaches the Court with clean

hands. The Division Bench refused to grant interim injunction against the 11th

defendant from making constructions pending suit, in the context of the fact

that he obtained an order of temporary injunction in a suit filed by him against

the plaintiffs and appeal filed by them against such order was pending and

further the Municipal Corporation granted permission to 11th defendant despite

objections raised by the plaintiffs. Further the Division Bench observed that

the Court below was in error in directing the 11th defendant to give an

undertaking not to make constructions and not to change physical features of

the suit till disposal of suit. Drawing analogy from the decision, learned

counsel submitted that the present petition has been filed at a belated stage

after prolonged litigation.

15. In answer to the contention of the learned counsel for the respondents,

learned counsel for the petitioners rightly submitted that since changes have

been proposed recently and immediately after coming to know about such

attempts, the petitioners were prompted in approaching this Court without any

further delay and thus the said decision has no application to the present case.

Therefore, on this count, the petition cannot be opposed.

16. In no two cases, facts would be identical. The decisions relied by both

parties would guide this Court in taking decision appropriate to the facts and

circumstances in the present case.

17. So far, it is only respondent No.5 who is exercising control over the

property as can be seen from the averments of the petitioners that respondent

No.5 has been receiving rents of item Nos.3 and 4 all along. Son of

respondent No.5, though not a party directly in the lis so far, he was acting by

virtue of rights of his mother who is party to the lis and against whom the

present reliefs are sought. So, he is not altogether unconnected or stranger to

the lis.

18. As the proceedings implead him would take some more time to

culminate the procedures, and meanwhile if the nature of the property is

changed, it would further complicate the issues. At the same time, respondent

No.5 or her alienee cannot be indefinitely be restrained by an interim order

since some other interlocutory applications are pending and time likely to take

for final disposal of the appeal can not be assessed for the present.

19. Further, there is no evidence on record or submission made during oral

arguments about the exact current status of the properties viz., whether

demolition is about to be or just commenced or completed or new construction

has commenced etc.

20. Under all these circumstances, it is appropriate to grant interim

injunction.

21. In the result, the petition is allowed granting interim injunction against

the 5th respondent, her supporters and associates from changing the nature or

physical features including alienation of item Nos.2 to 4 of the schedule

property in O.S.No.154 of 1998 on the file of XI Addl. District and Sessions

Judge (FTC), Guntur at Tenali for a period of three months from the date of

this order or until disposal of appeal whichever is earlier.

_________________ B.S.BHANUMATHI, J

16th February, 2022 RAR/PNV

THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

I.A.Nos.2 of 2021 In A.S.No.915 of 2010

DATED : 16-02-2022