CMA/159/2023
2023 Latest Caselaw 3298 AP

                                    1


             HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                  AND
            HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
                        C.M.A.No.159 of 2023
JUDGMENT: (per Hon'ble D.V.S.S.Somayajulu)


     This Civil Miscellaneous Appeal is filed questioning the order

dated 15.04.2023 in I.A.No.88 of 2023 in O.S.No.30 of 2023 passed by

the VI Additional District Judge, Visakhapatnam.

2.   The appellants before this Court are the respondents 10 and 11

in the suit O.S.No.30 of 2023. They are questioning the order

mentioned above by which they were restrained under Order 39 Rules

1 and 2 from making any further constructions in the plaint schedule

property.

3. This Court has heard Sri B.Raj Kiran, learned counsel for the

appellants and Sri P.Naga Raju and SKSK.Sarma for the respondents.

4. Learned counsel for the appellants points out that the lower

Court committed a serious error in granting a temporary injunction

restraining the construction in the petition schedule property. It is his

contention that trial Court has not considered the documents or the

pleadings in its proper perspective. He states that the appellants are

constructing in the property which is far more than the petition

schedule property. He states that permission has been obtained for

construction in a total site measuring 7500 square yards. The

development agreement coupled with General Power of Attorney

executed in their favour is dated 18.02.2021 and it deals with the 478

square yards of land and the other extent of the property belongs to

third parties to the proceedings who have also permitted the

appellants for construction. Therefore, he submits that granting of a

blanket order of injunction against further construction is not correct

and contrary to law. He points out that after substantial

constructions were raised, a suit was filed and an injunction was

obtained. It is their contention that on this ground of delay also, the

lower Court committed an error. Relying upon the photographs filed,

learned counsel argues that in view of the substantial constructions

made, a blanket order of injunction should not have been granted. He

also points out that the respondents/plaintiffs also orally agreed for

partition of the property and received consideration. He also relies on

Kishorsinh Ratansinh Jadeja v. Maruti Corporation and others 1.

5. In reply to this, SKSK.Sarma, learned counsel argues that the

suit itself is filed for a partition and for allotment of a share of the

plaintiffs. He contends that under a registered sale deed dated

29.07.2015, the plaintiffs along with defendants 1 to 4 acquired an

extent of 635 square yards. Relying upon the sale deed, he points out

that the land is undivided. In the said undivided bit, defendant Nos.1

(2009 ) 11 SCC 229

and 2 have 158.75 square yards each. Defendant No.3 has 79.37

square yards and defendant No.4 has 79.37 square yards. The

plaintiffs 1 and 2 have 79.37 square yards each. No boundaries are

specified for these extents. The extents are specified but the division

by metes and bounds has not taken place. Contrary to this sale deed,

the development agreement dated 18.10.2021 has been entered into

by defendant Nos.1 to 4 with the developers/appellants. This was

done behind the back of the plaintiffs. Pursuant to the said

development agreement, construction of the building has started.

Learned counsel points out that unilaterally defendant Nos.1 to 4 have

executed the development agreement for what they claim is their share

at 476.24 square yards leaving a certain bit of land as the property

belonging to the plaintiffs. He points out that the division of the

property can only occur after all the parties agreed to a partition, or

pursuant to a decree passed by a Court for partition. In this case, as

there is no consent or a document of partition, a suit is filed for

partition. Learned counsel therefore submits that unilaterally, co-

sharers cannot determine their shares and permit construction

thereon. At best, they could have sold only their undivided share in

the property. The counsel contends that without the consent by the

plaintiffs construction cannot go on. He relies upon the following

cases to argue that the injunction granted is a reasoned order passed

after considering the merits of the matter.

(1) Jose Caetano Vaz v. Julia Leocadia Lucretia Fernandas2

(2) Sabitri Devi and others v. Sri Lakhan @ Ramjiwan Prasad

and others3

(3) Rukmani and others v. H.N.Thirumalai Chettiar 4

(4) Somepalli Govindu v. Madikiri Rajamani and others 5 and

(5) Gangubai Bablya Chaudhary v. Sitaram Bhalchandra

Sukhtankar6

6. COURT: After hearing the submissions, this Court notices that

O.S.No.30 of 2023 is filed for a partition and for allotment of share in

terms of the sale deed dated 29.07.2015. The plaintiffs are claiming

for a partition and delineation of their share pursuant to the

document dated 29.07.2015. Second prayer is for a permanent

injunction. A copy of the sale deed is on the file of this Court. The

contents of the sale deed clearly reveal that the purchasers (plaintiffs

1 and 2 along defendant Nos.1 to 4) purchased a total extent of 635

square yards in Sy.No.47. Boundaries are given in the entire extent

only and not for the individual extents. The extent which belongs to

each of the parties to this deed is described as follows: (1) Defendant

Nos.1 and 2-148.75 square yards each. (2) Defendant Nos.3 and 4

(plaintiffs 1 and 2) 79.37 square yards each.

1969 0 AIR (Goa) 90

2017 AIR (Pat) 85

1985 AIR (Mad) 283

AIR 2023 AP 54

AIR 1983 SC 742

7. It is a fact that the property is not physically divided and only

undivided extents are mentioned. Thereafter, on 18.02.2021 a sale

deed was executed by defendant Nos.1 to 4 alienating 476.24 square

yards of land by defendant Nos.1 to 4 in favour of defendant Nos. 5 to

9. This land is described with boundaries. Defendant Nos.5 to 9

entered into a development agreement on the very same day with

defendant Nos.10 and 11 for developing this bit. Interestingly, in

these documents, 476.24 square yards out of 635 square yards is the

subject matter. Both these documents do not refer to any partition.

They do not also state that the consent of the plaintiffs was given for

alienation of his property or for its development. Plaintiffs have also

not signed on either of these documents as consenting parties.

Unilaterally the defendants seem to have divided and appropriated the

land.

8. An argument was also advanced that the conduct of the

plaintiffs does not entitle them to seek an injunction. As it is argued

that they have allowed construction substantially before filing the suit

and interlocutory application. In the opinion of this Court and in the

circumstances of the present case, the same is not tenable. This

Court agrees with the conclusions and ratio of the judgments relied

upon by the plaintiffs including Jose Caetano Vaz's case and

Rukmani's case (2 and 4 supra). Unless and until the property is

partitioned and/or the share is delineated, construction cannot be

permitted to be made. This would definitely cause prejudice to the

plaintiffs. The case law relied upon by the learned counsel for the

appellant in Kishorsinh Ratansinh Jadeja (1 supra) was a case

where the conduct of a party in sleeping over the matter for

development for a period of 19 years was commented upon. This case

is not a case of inordinate delay. On 08.06.2022, the approved plan

was granted for construction. A lawyers notice was issued on

14.10.2022. This did not evoke a proper response. Thereafter, a suit

was filed on 03.03.2023. Therefore, the delay cannot be said to be

inordinate.

9. This Court also notices that the order impugned is a reasoned

order. The trial Court has considered all the issues that were raised in

proper perspective. It has also noted that in the sale deed dated

18.02.2021, boundaries are given for the property alienated by the

defendant Nos.1 to 4 in favour of defendant Nos.5 to 9 without it being

mentioned that the property has been partitioned either by the deed or

by an understanding. Even with regard to the so called oral partition

and/or agreement of sale also, the trial Court has rightly come to a

conclusion. An oral partition should always be supported by

contemporaneous evidence to show that there was in fact a partition

and it was acted upon. The fact that the said partition or agreement is

not mentioned in any for the documents executed by the defendant

Nos.1 to 4 is also an important factor in the plaintiffs favour.

10. Considering all of the above, this Court is of the opinion that the

impugned order does not suffer from any infirmities. It is a reasoned

order considering the important issues that are raised in their proper

perspective. If the building is allowed to be constructed without the

plaintiffs share being demarcated on the ground in accordance with

law, they will suffer serious loss. The defendants cannot be allowed to

raise constructions. The plaintiffs have more than a prima facie case

in their favour. Greater harm will be caused to them if the

construction is allowed to go on in a site which is not partitioned or

divided and in which plaintiffs may have a share on the ground. The

loss will also be irreparable.

11. This Court is of the opinion that there are no merits of the civil

miscellaneous appeal and the same is therefore dismissed. No order

as to costs. As a sequel, the miscellaneous petitions if any shall stand

dismissed.

__________________________ D.V.S.S. SOMAYAJULU,J

______________________________ B.V.L.N.CHAKRAVARTHI,J

Date: 04.07.2023 KLP