Dokala Narasimha Murthy vs Reddy Jagan Mohan
2022 Latest Caselaw 7445 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

     CIVIL MISCELLANEOUS APPEAL No.269 of 2022


JUDGMENT:

This civil miscellaneous appeal is filed under Order

XLIII Rule 1 of CPC against the order and decree dated

03.08.2022 in I.A.No.71 of 2022 in A.S.No.67 of 2022 on the

file of IX Additional District Judge (Fast Tract Court),

Visakhapatnam at Chodavaram.

2. Appellant is the plaintiff suit O.S.No.119 of 2016 on the

file of Principal Junior Civil Judge, Chodavaram, which was

filed against the respondents seeking permanent injunction

restraining the defendants and their men from interfering

with the plaintiff's peaceful possession and enjoyment of

plaint schedule property.

3. Plaintiff pleaded that originally the property belonged to

Ravada people of Bathivanipalem, hamlet of Kinthada,

K.Kotapadu Mandal; that Ravada people partitioned joint

family properties under a registered family partition deed

dated 19.02.2011 and in the said partition, plaint schedule

property, which has been shown as 'B' schedule fell to the

share of 2nd Party, the vendor of plaintiff; that A schedule

property fell to the share of other party i.e. vendor of 5th

defendant; that plaintiff purchased the schedule property

from Ravada Venkata Ramana Murthy and two others under

a registered sale deed dated 13.06.2016 and name of the

plaintiff was mutated in the revenue records; that plaintiff

made application for approval of construction of house before

the Gram Pancahyat; that defendants approached the

plaintiff and requested to sell the schedule property, however,

plaintiff refused to sell; that on 10.07.2016 defendants and

their henchmen came to schedule property and obstructed

the plaintiff from proceeding with construction and tried to

dispossess the plaintiff. Hence, suit was filed.

4. 10th Defendant filed written statement and the same

was adopted by defendants 1, 2 and 9.

5. 5th Defendant filed written statement and contended

interalia that oral partition took place in the year 1977

among the family members of Ravada Thammunaidu and

Yarranna and in the said partition land covered by

S.No.209/18 an extent of Ac.0.39 cents locally called as

Pasalamma Gavuru fell to the share of Thammunaidu; that in

suit O.S.No.173 of 1983, Thammunaidu was asserted as 1st

defendant and his rights over the plaint schedule property

was upheld and the same was confirmed by the High Court in

S.A.No.422 of 1996; that Thammunaidu himself and on

behalf of minor son Nageswara Rao along with other son

Venkata Ramana, sold the plaint schedule property to the 5th

defendant under a registered sale deed dated 17.03.1997 and

delivered possession and since then, 5th defendant has been

in possession and enjoyment of the schedule property; that

5th defendant constructed thatched house and has been living

there; that Gram Panchayat assessed the house for tax vide

Assessment No.913 and another Assessment No.1027; that

plaintiff, husband of Sarpanch tried to occupy the schedule

property and the sale deed dated 13.06.2016 is a collusive

document and eventually, prayed the Court to dismiss the

suit.

6. Pending the suit, I.A.No.332 of 2016 was filed for grant

of ad interim injunction. Initially, trial Court granted ad

interim injunction restraining the respondents from

interfering the possession of plaintiff over the plaint schedule

property and subsequently, the same was made absolute on

18.11.2017. Temporary interim injunction continued till the

disposal of suit. Trial Court by judgment and decree dated

30.06.2022, dismissed the suit on merits.

7. Aggrieved by the judgment and decree, plaintiff filed

appeal A.S.No.67 of 2022 on the file of IX Additional District

Judge (Fast Tract Court), Visakhapatnam at Chodavaram. In

the appeal, appellant filed I.A.No.71 of 2022 seeking ad

interim injunction restraining the respondents/defendants

from raising any constructions in the plaint schedule

property till the disposal of appeal. Initially, the Appellate

Court granted ad interim injunction on 15.07.2022 and after

filing of counter, I.A.No.71 of 2022 was dismissed with

certain observations. Assailing the same, the above civil

miscellaneous appeal is filed.

8. Heard Ms.Nimmagadda Revathi, learned counsel for the

appellant and Ms.T.V.Sridevi, learned counsel for

respondents 4, 5, 6 and 9.

9. Learned counsel for appellant would submit that after

dismissal of the suit, respondents encroached into the plaint

schedule property and attempting to construct structures in

the schedule property. She would also submit that if the

respondents are allowed to make constructions in the

schedule property, in the event of appellant succeeding in the

appeal, he may not be in a position to use the property as per

his wish and convenience. It was specifically asserted in the

affidavit about the respondents trespassing into the plaint

schedule property after dismissal of the suit.

10. Counter filed by 5th respondent asserting about

purchase of property and earlier litigation and also findings

recorded by the trial Court regarding possession of plaintiff

and eventually prayed to dismiss the application.

11. It is settled law, whenever an application filed under

Order XXXIX Rules 1 and 2 of CPC, the Court must see that

whether the petitioner proved prima facie case, balance of

convenience and irreparable loss. In the appeal, after

dismissal of the suit, Appellate Court must see the averments

in the affidavit, counter and other material placed before the

Court qua the relief sought as an interim measure.

12. A perusal of the order passed by the lower appellate

Court would indicate that lower appellate Court is swayed

away by the observations of the trial Court in the judgment.

The suit filed for injunction based on title. Both the appellant

and 5th respondent are asserting title to the schedule

property and possession. However, the suit was dismissed on

merits. Lower appellate Court being final fact finding Court

must evaluate the evidence independently basing on oral and

documentary evidence available on record. Lower appellate

Court ought not to have relied upon the findings in the

judgment of trial Court, while dealing with interlocutory

application.

13. Apart from that the interlocutory application is filed

praying the Court to injunct the respondents from making

any constructions pending the appeal. Lower appellate Court

ought to have considered the application keeping in view the

principles for grant of injunction pending the appeal. In fact,

pending the suit, temporary injunction granted in favour of

appellant/plaintiff restraining respondents from interfering

with possession. If the 5th respondent is allowed to make

constructions in the plaint schedule property, in the event of

appellants succeeded in the appeal, it is very difficult to

appellant to enjoy the property since by the time the nature

of property would be changed. In fact, in this case, Appellate

Court safe guarded interest by cautioning the respondents

not to claim equities. Such a course may not really serve the

purpose of litigants. Unscrupulous litigants definitely will

take advantage of such observations.

14. This Court granted ad interim injunction on 30.08.2022

subject to the petitioner filing an affidavit in accordance with

Order XXXIX Rule 3A of CPC, as per Andhra Pradesh

amendment. Accordingly, appellant filed an undertaking

affidavit.

15. Though learned counsel for 5th respondent would

submit that appellant is unsuccessful in the suit, in the

considered opinion of this Court, appeal being continuation of

suit and the lower appellate Court is duty bound to consider

the evidence independently with reference to the findings

recorded by the trial Court in the judgment.

16. If the 5th respondent is allowed to make constructions

pending the appeal, it will cause irreparable loss to the

appellant in case if the appellant succeeds in the appeal.

Thus, this Court is of the considered opinion that ad interim

injunction passed by this Court shall continue till disposal of

the appeal. Appellate Court shall consider the undertaking

affidavit filed the appellant in this CMA while disposing of the

appeal. Appellate Court shall dispose of the appeal within six

months from the date of receipt of a copy of this judgment

uninfluenced by any of the observation made by this Court.

17. With the above observations, the civil miscellaneous

appeal is disposed of. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 28th September, 2022

PVD