Kada Venkata Ramana vs Gontina Nookaraju
2022 Latest Caselaw 7146 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL MISCELLANEOUS APPEAL Nos.165 and 167 of 2022


COMMON JUDGMENT:

      Appellant in A.S.No.6 of 2022 filed the above Civil

Miscellaneous Appeal under Order XLIII Rule 1 r/w Section

151 of CPC, against the order and decree dated 20.04.2022 in

I.A.No.187 of 2022 in A.S.No.6 of 2022 on the file of XIII

Additional District Judge, Gajuwaka.


2.    For the sake of convenience, parties to this common

judgment are referred to as they are arrayed in the plaint.


3.    Plaintiff filed suit O.S.No.475 of 2008 on the file of

Junior Civil Judge, Gajuwaka against the defendant for

perpetual   injunction   restraining   the   defendants   from

meddling with the suit schedule property either by felling

trees or raising constructions therein or otherwise in any

manner and not to dispossess the plaintiff from the schedule

property.


4.    Suit schedule property is an extent of Ac.0.49 cents in

S.No.13/4 and Ac.0.25 cents in S.No.13/2, totaling Ac.0.74
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cents situated in Akkireddypalem village, Gajuwaka Mandal,

Visakhapatnam District.


5.    Plaintiff is the son of 2nd defendant.           1st defendant is

son-in-law of 2nd defendant.           Thus, parties to the suit are

closely related.


6.    Plaintiff    filed   suit   O.S.No.475     of     2008   seeking

injunction asserting that 2nd defendant executed registered

gift settlement deed dated 27.02.2007. Plaintiff pleaded that

an extent of Ac.1.20 cents, out of Ac.2.00 cents was

purchased by the grandmother Varahalamma under a

registered sale deed dated 29.02.1952; that after demise of

Varahalamma, plaintiff's mother and 1st defendant got the

property   separated       between       themselves,     whereby    2nd

defendant got Ac.0.74 cents, out of Ac.1.20 cents i.e. plaint

schedule property; that plaintiff by virtue of gift deed has

been in absolute possession and enjoyment of property by

staying in thatched hut; that on 27.12.2008 when he visited

the plaint schedule property, he found thatched hut in item

No.1 of the suit schedule was removed and the property was

leveled and dug for construction of a structure therein; that
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plaintiff lodged a complaint before the Station House Officer;

that the defendants are trying to dispossess the plaintiff

forcibly and hence, suit was filed for perpetual injunction.


7.    1st Defendant filed written statement and contended

interalia that mother of defendants purchased the property

under a registered sale deed dated 29.05.1952 i.e. Ac.0.50

cents in S.No.13/12 and Ac.1.00 cents in S.No.13/4; that

subsequently, survey was conducted by settlement authority

in 1956 for the lands in Gajuwaka and patta was granted in

favour of mother of 1st defendant; that when the land was

measured, the extent was shown in the records is Ac.1.08

cents in S.No.13/4 and Ac.0.49 cents in S.No.13/12; that he

gifted Ac.0.21 cents under a registered gift settlement deed in

favour of his daughter and the remaining land is being

enjoyed by the 1st defendant; that 1st defendant is the title

holder of property and he has been in possession and

enjoyment of the property for the last 56 to 57 years and thus

prayed to dismissed the suit.


8.    2nd Defendant filed written statement and denied the

execution of gift deed. She further averred that she is nothing
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to do with the schedule property.            She also pleaded that

passbook filed by the plaintiff showing the name of 2nd

defendant are false and fabricated and they stayed in the

house bearing Door No.1-2-134 of Akkireddypalem, but not

in the plaint schedule property. She further contended that

her daughter-in-law is practicing advocate, misrepresented

the facts and obtained her signatures and the gift deed is

fabricated and eventually prayed to dismiss the suit.


9.    Pending the suit, I.A.No.1497 of 2008 was filed for

grant of ad-interim injunction restraining the respondents

from interfering with the peaceful possession and enjoyment

of the plaintiff over the plaint schedule property. Trial Court

granted ad interim injunction on 08.05.2009 and defendants

filed C.M.A.No.4 of 2009 on the file of Principal Senior Civil

Judge, Gajuwaka and the same was allowed by setting aside

the orders of the Junior Civil Judge, Gajuwaka. Plaintiff filed

C.R.P.No.1953 of 2010 before the composite High Court and

the composite High Court while disposing of the C.R.P, held

that "neither the petitioner nor the respondents shall make any

constructions over the suit schedule property or otherwise alter

its nature till the disposal of the suit".

10. Trial Court on consideration of oral and documentary

evidence, dismissed the suit of the plaintiff on 07.02.2022.

Trial Court recorded the finding that the plaintiff failed to

prove possession and enjoyment over the schedule property.

11. Aggrieved by the said judgment and decree, plaintiff

filed appeal A.S.No.6 of 2022. In the appeal, the appellants

filed I.A.No.187 of 2022 under Order XXXIX Rules 1 and 2 of

CPC for grant of temporary injunction restraining the

respondents 1 and 2 from interfering with the possession and

enjoyment of the appellant over the schedule property,

pending the appeal. Lower appellate Court on 22.03.2022

passed the following order:

"Hence, while granting time till 28.03.2022 for counters of R1 and R2 as requested, it is directed that neither petitioner nor respondents shall make any constructions over the plaint schedule property or otherwise alter its nature till counters are filed in the petition."

12. Lower appellate Court by order dated 20.04.2022

dismissed I.A.No.187 of 2022 and while dismissed the

petition, it observed that "any constructions that may be made

on the plaint schedule properties shall be subject to the result

of the appeal". Against the order of dismissal dated

20.04.2022 in I.A.No.187 of 2022 in A.S.No.6 of 2022, the

appellant filed C.M.A.No.165 of 2022.

13. Aggrieved by the observation made by the lower

appellate Court that "any constructions that may be made on

the plaint schedule properties shall be subject to the result of

the appeal", 1st respondent filed C.M.A.No.167 of 2022.

14. Since the nature of dispute involved in both the appeals

is one and the same, this Court deems it appropriate to

dispose of the same by a common judgment.

15. Heard Sri Narasimha Rao Gudiseva, learned counsel for

appellant and Sri N.Subbarao, learned senior counsel

appearing for the 1st respondent.

16. Learned counsel for the appellant would submit that

the appellant is the absolute owner of the property and the

observation of the trial Court regarding title and possession of

the appellant are, in fact, contrary to the evidence on record.

He would submit that lower appellate Court failed to consider

that prima facie case, balance of convenience and irreparable

loss sine qua non for grant of injunction. He would also

submit that the appeal being continuation of suit proceedings

the lower appellate Court ought to have made the ad-interim

order absolute. Thus, learned counsel prayed to allow the

CMA and prayed to dismiss the other CMA.

17. Learned senior counsel for 1st respondent while

supporting the order in I.A.No.187 of 2022 would submit that

lower appellate Court ought not to have made observations

that "any constructions that may be made on the plaint

schedule properties shall be subject to the result of the

appeal". He would also submit that in fact against the said

observations, 1st respondent filed C.M.A.No.167 of 2022

before this Court. He would submit that there are no merits

in this appeal and the same is liable to be dismissed.

18. Now the following point arise for consideration in these

appeals is:

Whether the appellant proved prima facie case, balance of convenience, or irreparable loss sine qua non for grant of injunction?

19. Undisputed facts are that Defendants 1 and 2 are son

and daughter of Varahalamma. 2nd defendant has got four

children, one among them is plaintiff. Plaintiff's sister

Satyavathi is married to 1st defendant.

20. It is pertinent to mention here that suit O.S.No.475 of

2008 was filed seeking permanent injunction restraining the

defendants from meddling with the suit schedule property

either by felling trees or raising constructions therein and

from dispossessing the plaintiff from the plaint schedule

property. 1st defendant in the suit contended that in fact, he

has been in possession of property and the plaintiff was never

in possession of the schedule property. Trial Court on

examination of both oral and documentary evidence came to

the conclusion that plaintiff failed to prove his possession

and enjoyment over the plaint schedule property either from

the date of filing of the suit or from the date of execution of

gift deed, as such the finding recorded by the trial Court is

based on evidence on record.

21. In appeal, I.A.No.187 of 2022 seeking temporary

injunction restraining the respondents 1 and 2 from

interfering with possession and enjoyment of the appellant

over the schedule property, pending the appeal. When the

possession of plaintiff was disbelieved by the trial Court on

merits i.e. on consideration of both oral and documentary

evidence, granting ad interim injunction restraining the

respondents from interfering with the possession pending the

appeal, does not arise. When the main relief sought for in the

suit was rejected by recording a finding that the plaintiff

failed to prove his possession over the plaint schedule

property, it is too early to record finding with regard to

possession of plaintiff in the interlocutory application pending

appeal. Whether, the appellant proved his possession or not

over the schedule property on the date of filing of the suit, is

a matter, will be decided in the appeal.

22. In fact, the lower appellate Court by taking into

consideration all the aspects and also equities while

dismissing the application made observation that "any

constructions that may be made on the plaint schedule

properties shall be subject to the result of the appeal". The

order under appeal does not call for any interference of this

Court. Hence, there are no merits in the civil miscellaneous

appeal and the C.M.A.No.165 of 2022 is liable be dismissed.

23. The observation made by the lower appellate Court that

"any constructions that may be made on the plaint schedule

properties shall be subject to the result of the appeal" is in the

interests of both parties and hence, there are no merits in the

civil miscellaneous appeal and the C.M.A.No.167 of 2022 is

liable be dismissed

14. Accordingly, the C.M.A.Nos.165 and 167 of 2022 are

dismissed. No order as to costs.

Since both the parties are close related to each other

and the suit is one filed for injunction, the lower appellate

Court shall dispose of the appeal as expeditiously as possible,

preferably within a period of six months from the date of

receipt of a copy of this common judgment.

It is made clear that the observations made by this

Court in the order above will not influence or come in the way

of the appellate Court in disposal of the appeal on merits.

As a sequel, all the pending miscellaneous applications shall stand closed.

_________________________ SUBBA REDDY SATTI, J 19th September, 2022 PVD