H C Rao, E.Godavari Dist 4 Others vs C Satyavathi, E.Godavari Dist
2023 Latest Caselaw 671 AP

                 THE HON'BLE SRI JUSTICE BATTU DEVANAND

                   Civil Miscellaneous Appeal No.684 of 2016


JUDGEMENT:

This civil miscellaneous appeal is directed against the order dated

11.08.2016 made in I.A.No.1064 of 2016 in OS No.100 of 2016 on the file of the IV

Additional District Judge, Kakinada, wherein, the petition filed by the respondent

herein, under Order XXXIX, Rules 1 and 2 and Section 151 CPC, seeking to grant

temporary injunction restraining the appellants herein from interfering with the

peaceful possession and enjoyment of the respondent herein over the plaint

schedule property pending disposal of the suit, was allowed.

2. Heard the learned counsel for the appellants and the respondent.

Perused the record.

3. The appellants herein are the defendants and the respondent herein is

the plaintiff in OS No.100 of 2016, which was filed for the relief of permanent

injunction. The plaintiff i.e., respondent herein, contended that she is the owner

of the plaint schedule property, which is of an extent of Ac.2.45 cents of land

covered by RS No.32 of Uttarkanchi village.

i) Originally, the plaint schedule property is the ancestral property of her

husband. She is having two sons. Her husband and her two sons partitioned the

plaint schedule property in the year 1995 and in the said partition, the plaint

schedule property fell to the share of her two sons and each sharer has taken

possession of the property that fell to the share and since then they are enjoying

their respective shares. While so, her two sons due to the love and affection had

DEV, J CMA No.684 of 2016

executed a registered gift deeds in respect of the property that fell to their share

in favour of the petitioner on 16.09.2009 and put her in possession of the same and

since then, she is in peaceful possession and enjoyment of the same.

ii) The appellants/defendants, who are having land in the same survey

number, requested the plaintiff to sell the plaint schedule property in the year

2015, for which she refused. Due to the same, the defendants bored grudge against

the plaintiff and got issued a registered notice dated 11.04.2016 by creating an

agreement of sale dated 09.06.1997 in favour of one Chakramma, as if her husband

agreed to sell Ac.2.60 cents of land at the rate of Rs.62,000/- per acre. After

receipt of the notice, the plaintiff approached the defendants, questioned them

about the notice and to show the agreement of sale, for which, they stated that

the original agreement of sale has been given to their Advocate at Visakhapatnam.

iii) Meanwhile, the plaintiff noticed that the defendants got issued a paper

publication stating that they filed OS No.82 of 2016 on the file of the VI Additional

District Judge, Kakinada for specific performance of the agreement of sale dated

09.06.1997 and also filed an application seeking for an injunction. On seeing the

paper publication, she came to know that the defendants created the agreement

of sale from the person, who is not having any right, title or possession over the

plaint schedule property and hence, the defendants are not having any right over

the schedule property. On 03.05.2016, as the defendants tried to disturb the

possession of the plaintiff, with great difficulty, she thwarted their high-handed

acts and filed the present suit i.e., OS No.100 of 2016 for permanent injunction

and also filed I.A.No.1064 of 2016 for temporary injunction, pending disposal of

the suit.

DEV, J CMA No.684 of 2016

4. The 1st defendant filed the counter denying the allegations in the

affidavit, inter-alia contending that defendants 2 to 4 are his sons and that the

petitioner was never in possession of the suit land and hence, the question of

interference by the respondents/defendants does not arise at all. The petitioner is

guilty of suppression of material facts and the petitioner has no prima-facie case

and the balance of convenience is in their favour and hence, petitioner/plaintiff is

not entitled for any of the reliefs.

5. On consideration of contentions and rival contentions of both parties, the

trial Court granted injunction restraining the respondents/defendants from

interfering with the plaintiff's possession and enjoyment.

6. Aggrieved by the same, the respondents/defendants filed the present

appeal contending that the trial Court having considered the sale agreement of the

appellants failed to appreciate the fact of possession of the land by the appellants

long back in the year 1997 and granting of ad-interim injunction is improper

without possession by the plaintiff over the suit schedule lands and prays to allow

the appeal by setting aside the temporary injunction granted by the trial Court.

7. It appears, though this appeal was filed in the year 2016, there is no stay.

8. During the course of hearing, both the counsel requested this Court to

dispose of the appeal directing the trial Court to dispose of the suit itself as

expeditiously as possible.

8. Considering the submissions made by the respective counsel, without

going into the merits of the case, the IV Additional District Judge, Kakinada is

DEV, J CMA No.684 of 2016

directed to dispose of the suit OS No.100 of 2016, as expeditiously as possible,

preferably within a period of six (6) months from the date of receipt of a copy of

this judgment, as the suit is pertaining to the year 2016. There shall be no order as

to costs.

9. Consequently, miscellaneous petitions, if any pending in this appeal,

shall stand closed.

______________________ JUSTICE BATTU DEVANAND Date: 08.02.2023 Note: Issue CC by tomorrow.

(BO) bss

DEV, J CMA No.684 of 2016

THE HON'BLE SRI JUSTICE BATTU DEVANAND

Civil Miscellaneous Appeal No.684 of 2016

Date: 08.02.2023 bss