THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
Civil Miscellaneous Appeal No.255 of 2021
JUDGMENT: (Per Hon'ble Sri Justice C. Praveen Kumar)
The present Civil Miscellaneous Appeal is filed, under
Order 43, Rule 1 read with Section 151 of Civil Procedure
Code, 1908 [for short, "CPC"] assailing the Order, dated
06.09.2021 passed in I.A.No.130 of 2020 in O.S.No.13 of
2020, wherein, the application filed under Order 39, Rules 1
and 2 of CPC, seeking temporary injunction restraining the
respondents/defendants from alienating the property, was
dismissed.
2. The facts, in issue, are as under:
a) The appellants, who are the plaintiffs, filed a suit for
declaration of title in respect of the suit schedule land and to
declare the Registered Sale Deeds, dated 18.05.1990,
30.05.1995 and 20.09.2005 executed by one K. Shivanna as
null and void and for delivery of possession.
b) The averments in the affidavit filed, in support of the
petition, show that originally, one K. Thippanna died leaving
his sons namely K. Ramachandrappa, K. Shivanna and
K. Harischandrappa. The 1st and 2nd plaintiffs are the sons of
K. Ramachandrappa and the 1st plaintiff is the father-in-law 2 CPK,J & Dr. KMR,J CMA.No.255 of 2021
of the 3rd plaintiff and grand-father of plaintiffs 4 and 5. The
2nd son of Thippanna i.e., K. Shivanna died four years back
leaving behind four sons namely Bheemasena (died), Mallesh
Goud (died), Thippanna (3rd defendant) and Sreeramulu
(died). The 3rd son of K. Thippanna i.e., K. Harishchandrappa
died leaving behind his son one K. Sreenivasulu.
Bheemasena, who died about two years back, left behind his
wife 4th defendant, three sons who are the defendants 5 to 7.
Mallesh Goud, who also died in the year 2017, left behind his
daughter 8th defendant. K. Sreeramulu, who died 10 years
ago, left behind his wife-9th defendant and a son who is the
10th defendant.
c) The land admeasuring Ac.2.77 cents in Survey
No.447 situated in Mandigiri was acquired by one
K. Thippanna under a Partition Deed, dated 04.02.1937
amongst himself and his brother Sanappa's sons namely
Narasappa and Hanumanthappa. In other words, in an oral
partition, K. Ramachandrappa got Ac.2.77 cents in Survey
No.447 and other properties. Mutation was done and Ryot
passbook was also issued. It is stated that
K.Ramachandrappa borrowed a sum of Rs.700/- from one
Yale Halamma and Yale Gangamma and executed a
registered simple mortgage deed in respect of the above
petition schedule property. An endorsement, dated
15.04.1978 on the mortgage deed shows that 3 CPK,J & Dr. KMR,J CMA.No.255 of 2021
Ramachandrappa cleared the mortgage debt and that Yale
Parvathamma has executed cancellation of mortgage deed for
having received the amount. Thereafter, it was again
mortgaged as Ramachandrappa borrowed a sum of
Rs.1500/- from Neelakantappa, S/o. K. Hanumanthappa.
After repaying the amount, the document is taken back. This
is only to show Ramachandrappa was having right over the
property.
d) While things stood thus, on 18.11.1991,
Ramachandrappa died leaving behind his two married sons
K. Mallikarjuna, K.Ayyanna, one unmarried son
K. Basavaraju and daughter-in-law K. Shankaramma who
are the appellants/plaintiffs herein. It is said that due to
expansion of Adoni town, cultivation could not be done in the
said area and as such the plaintiffs 1 and 2 went to
Bangalore in search of the livelihood. In the month of March,
2020, the appellants came to know that the husband of the
1st respondent and the father of the 3rd respondent were
clearing the bushes and trees and created a nominal
document from K. Shivanna and his sons though
K. Shivanna and his sons have no right and title over the
property.
e) It is said that these documents which are sought to
be relied upon namely, the registered Sale Deeds, dated
18.05.1990 and 20.09.1995 are created for the purpose of 4 CPK,J & Dr. KMR,J CMA.No.255 of 2021
this case. It is said that though these documents were
executed prior to the demise of Ramachandrappa, but
nothing was done to claim their right. The land was allowed
to remain fallow for nearly 25 years and a claim now is
sought to be made. Having regard to the steps taken by 1st
and 2nd respondents in approaching one Gopal, who is the
Real Estate broker to find a buyer, the above suit was filed
seeking relief as claimed therein.
3. A counter came to be filed, disputing the averments
made in the affidavit filed by the appellants/plaintiffs. The
respondents/defendants admit that in a family partition,
"A" schedule property of Partition Deed, dated 04.02.1937 fell
to the share of K. Thippanna which is admeasuring Ac.2.70
cents in Survey No.447. Thippanna also got Ac.3.25 cents in
Survey No.554, and other lands. They deny the oral partition
said to have taken place 50 years back, in between the sons
of Tippanna and also issuance of Ryot Passbook in his name
as it does not contain the seal of the office, which is evident
from the contents of the Sale Deed, dated 27.12.1990.
a) The counter also denies the fact of possession being
with Ramachandrappa. It is said that the Mortgage Deeds
will not cloth Ramachandrappa with absolute right and title
over the lands. It is said that on 27.12.1990,
Ramachandrappa and his sons have conveyed the suit land 5 CPK,J & Dr. KMR,J CMA.No.255 of 2021
to Kathi Anjaneyulu, the husband of 1st respondent, by
executing a Registered Sale Deed prescribing the boundaries.
Hence, it is treated that the said property is that of Kathi
Anjaneyulu.
b) It is further stated in the counter that the Sale
Deeds, dated 18.05.1990, 30.05.1995 and 20.09.1995 are all
true and genuine and there is no collusion between any of
the parties. It is said that the purchasers have constructed
houses in the plots purchased by them in Survey No.447 and
they are residing there and that the 1st and 2nd respondents
being the sons have absolute right to alienate the same.
4. In support of the claim and counter claim made by
them, the appellants/plaintiffs got marked Ex.P1 to Ex.P12
while the respondents got marked Ex.R1 to Ex.R13. After
considering the entire material on record and the judgments
on the subject, the learned II Additional District Judge,
Kurnool at Adoni, dismissed the said application.
Challenging the same, the present appeal is filed.
5. Sri K. Rajanna, learned counsel appearing for
appellants would submit that the learned District Judge
having given a finding that Ex.P5 is the Registered Mortgage
Deed, dated 28.06.1962 and the partition had taken place
among the sons of K. Thippanna about 50 years back, but
surprisingly disbelieving Ex.P5, merely on the misconception 6 CPK,J & Dr. KMR,J CMA.No.255 of 2021
of fact that the partition might have taken place in the year
1970 or 1971. He further submits that the trial Court erred
in relying on the decree and the affidavit marked as Ex.R1 to
Ex.R5 which is completely denied by the appellants as they
were not parties to the said suit. He further submits that the
learned District Judge erred in not relying on Ex.P3-Original
Ryot Passbook issued in favour of Ramachandrappa and no
reasons are assigned to disbelieve the same. Learned
counsel relied upon the judgments, which are discussed in
the body of the order, in support of his plea.
6. The contentions of the learned counsel for the
appellants, is opposed by Sri S. Lakshminarayana Reddy,
learned counsel appearing for respondents, stating that the
order impugned has dealt with all the aspects involved and
since the appellants are not in possession over the property
in dispute, the trial Court was right in dismissing the request
of the appellants/plaintiffs. He further submits that the suit
itself is barred by limitation. He relies upon the judgments of
this Court reported in AIR 1982 (AP) 284, 1997 (6) ALT DB
95, 2017(5) ALD 189, and also a judgment of the Hon'ble
Supreme Court reported in 2006 (5) ALT SC 26 in support
of various pleas taken by him.
7
CPK,J & Dr. KMR,J CMA.No.255 of 2021
7. The point that arises for consideration is, whether the
trial Court was right in rejecting the request of the
petitioners/plaintiffs for injunction?
8. In Seema Arshad Zaheer and others vs. Municipal
Corporation of Greater Mumbai and others1, the Honble
Apex Court, observed as under:-
"29. The discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff: (i) existence of a prima-facie case as pleaded, necessitating protection of plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of plaintiff's rights is compared with or weighed against the need for protection of defendant's rights or likely infringement of defendant's rights, the balance of convenience tilting in favour of plaintiff; and (iii) clear possibility of irreparable injury being caused to plaintiff if the temporary injunction is not granted. In addition, 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.
30. It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur, if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But, where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the
1 2006 (5) ALT 26 (SC) 8 CPK,J & Dr. KMR,J CMA.No.255 of 2021
Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality."
9. It is well established principle of law that the appellants
have to prove the three cardinal principles, namely,
(i) prima facie case; (ii) balance of convenience; and (iii)
irreparable loss, to grant an injunction.
10. Keeping in view the principles laid down we shall now
proceed to deal with the case on hand. There is no dispute
that K. Thippanna is the original owner of the petition
schedule property and an oral partition is said to have taken
place among the sons of Thippanna. The claim of the
appellants appears to be that in the said oral partition, the
petition schedule property and some other properties fell to
the share of their father Ramachandrappa. Whereas,
according to the respondents, the petition schedule property
and some other properties fell to the share of their vendor
K. Sivanna. But, as observed by the trial Court, no
document has been filed by both the parties regarding the
partition said to have taken place among the sons of
Thippanna. But, both of them have come up with a plea of
oral partition. Therefore, the question now is whether the
petition schedule property fell to the share of
Ramachandrappa or to the vendor of the respondents i.e.,
K. Shivanna. Ex.P3, Ex.P5 and Ex.P6 are relied upon by the 9 CPK,J & Dr. KMR,J CMA.No.255 of 2021
appellants to prove that the property fell to the share of
Ramachandrappa. It is well established that the person who
claims to be in possession of the property has to prove that
he is in possession of the property. The trial Court
exhaustively considered the three documents to decide the
issue.
11. On a perusal of the document and as rightly observed
by the trial Court, Ex.P3 does not contain the date of
issuance of the passbook though the name of the
Ramachandrappa was shown against Survey Nos.454-A and
477, under the column "encroacher". His name was not
shown in the column "owner". On the other hand, Ex.R7
indicates that the property was sold by one Ramachandrappa
in favour of Kathi Anjaneyulu, who is the husband of 1st
respondent. Therefore, Ex.P3 does not establish that the said
property fell to the share of appellants' father.
12. Coming to Ex.P5, which is a Registered Mortgage Deed,
dated 28.06.1962, the claim of the appellants is that the
partition took place about 50 years back i.e., in the year 1970
or 1971, but Ex.P5 is dated 1962. Hence, this document also
will not come to the rescue of the appellants. In so far as
Ex.P6 is concerned, the same is a Registered Mortgage Deed,
dated 21.05.1995. It is mentioned in the said document that
the schedule property fell to the share of Ramachandrappa. 10
CPK,J & Dr. KMR,J CMA.No.255 of 2021
It is well established principle of law that merely showing
that the property fell to the share of a person does not satisfy
the requirement of law for granting injunction. Burden is on
the appellants to prove that they are in possession of the
property. No material has been placed on record to show
that the appellants are in possession of the property.
Further, after the death of Ramachandrappa, nothing has
been placed on record to show that they succeed to the
property and came into possession and enjoyment of the
schedule property. On the other hand, their claim is that
they have gone to Bangalore for doing Mason's work.
13. On the other hand, the respondents, who contended
that they are in possession of the property have relied upon
Ex.P10-Adangal filed by the appellants for the fasli 1430,
wherein, 1st respondent and her husband were shown as
pattadars and enjoydars of the land. Apart from that the
Ex.R12-1-B Register Extract, dated 05.02.2021 goes to show
that the respondents have shown as pattadars of the petition
schedule property. It is also to be noted here that for nearly
20 years, the petitioners have kept quiet without raising any
dispute whatsoever and for the reasons best known to them
initiated the proceedings now.
14. Sri K. Rajanna, learned counsel for appellants tried to
contend that the said Registered Deeds executed in favour of 11 CPK,J & Dr. KMR,J CMA.No.255 of 2021
1st respondent cannot be relied upon and as such, this Court
has to investigate the validity or otherwise of the Registered
Sale Deeds executed by K. Sivanna and his sons in favour of
1st respondent and her husband. Infact, the issue relating to
execution of Wills came up for consideration in Gaddipati
Samrajyam vs. Panguluri Mahalakshmamma2 which was
also relied upon by the trial Court to come to a conclusion
when the matters touches the merits of the case, the same
has to be examined to find out a prima-facie case and not in a
meticulous manner like a trial where the parties will have
opportunities to examine witnesses etc. Therefore, in view of
the material available on record, it may not be permissible for
this Court to test the validity or otherwise of the Registered
Sale Deeds.
15. At this stage, learned counsel for the appellants
submits that in order to avoid multiplicity of the proceedings,
there may be an order of status-quo preventing the
respondents from alienating the property. It is to be noted
here that in case, if the respondents enter into any
transaction that may be taken place during the pendency of
the suit, may lead to multiplicity of litigations. Section 52 of
the Transfer of Property Act, 1882 [for short, "T.P. Act"]
2 1995(1) ALD 358 12 CPK,J & Dr. KMR,J CMA.No.255 of 2021
will come into operation and the rights of the appellants
/plaintiffs are protected in terms of Section 52 of the T.P. Act.
16. In Duvvala Ilaiah and Others vs. Duvvala Ramaiah
and others3, the Division Bench of this Court, observed as
under:
"Since the lands are involved in the suit, any transfer of the land would be pendente lite and would be subject to the ultimate decision in the suit. If transfer of the land is made, the purchaser has to take it at his own risk. But merely because of that, it would not be fit and proper in the background of the facts and circumstances of the case as discussed above, to restrain the respondents from alienating the properties".
17. It would be appropriate to extract the relevant portion
of the order of trial Court, which reads as under:
"42. As laid down in Ilaiah's case relied upon by the learned counsel for the respondents, pendente lite, purchaser of the property is at his risk and he is bound by the decree. If the injunction is granted, the respondents would suffer loss, whereas, even if an injunction is not granted, the petitioners will not sustain any loss or injury, as they are not in possession of the petition schedule property".
18. Having regard to the law laid in Seema Arshad
Zaheer's case (cited 1 supra); the findings arrived at and as
the suit came to be filed nearly 25 years after the execution of
the Registered Sale Deeds, we feel that it would not be proper
to interfere with the order of the trial Court.
3 1997 (6) ALT 95 (DB) 13 CPK,J & Dr. KMR,J CMA.No.255 of 2021
19. Accordingly, the Civil Miscellaneous Appeal is
dismissed. There shall be no order as to costs.
Consequently, miscellaneous petitions, if any, pending
shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR
___________________________________ DR. JUSTICE K. MANMADHA RAO
Date: 04.01.2022.
MS 14 CPK,J & Dr. KMR,J CMA.No.255 of 2021
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
Civil Miscellaneous Appeal No.255 OF 2021 (Per the Hon'ble Sri Justice C. Praveen Kumar)
Date: 04.01.2022
MS
