Unknown vs Procedure Code
2023 Latest Caselaw 4117 AP

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

                     I.A. Nos.1 & 2 OF 2022
                                IN
                      A.S. No.364 OF 2022

COMMON ORDER:

      Interlocutory Application No.1 of 2022 is filed by the

petitioners/appellants/plaintiffs, under Section 151 of the Civil

Procedure Code, 1908 (for short, 'the CPC'), seeking to restrain the

respondent/defendant from alienating the suit schedule property

in O.S. No.46 of 2009, on the file of the Court of IX Additional

District and Sessions Judge, Krishna at Machilipatnam (for short,

'the learned Additional District Judge'), pending disposal of the

Appeal, in favour of third parties. Interlocutory Application No.2 of

2022 is filed by the petitioners/appellants/plaintiffs under Order

XXXIX Rules 1 and 2 R/w Section 151 of CPC to grant temporary

injunction restraining the respondent/defendant and his

representatives from interfering with their possession and

enjoyment in the suit schedule property, pending disposal of the

Appeal.

2. The case of the petitioners in I.A. No.1 of 2022, in brief, is

that the deponent namely Sonti Seeta Devi is the 5th petitioner

herein and she is authorized to swear on behalf of the petitioners 2

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

to 4, who are no other than her children, and 1st petitioner herein

is no other than her deceased husband and original plaintiff. The

deceased 1st plaintiff purchased the suit schedule property in an

extent of Ac.1.80 cents in R.S. No.66/1 of Kuchipudi Village of

Movva Mandal, Krishna District from respondent on 05.10.2006

for a total sale consideration of Rs.19,35,000/- and out of which,

he paid Rs.11,10,000/- as advance sale consideration on the even

date and got executed Ex.A-1 - agreement of sale in his favour by

taking over the possession of the schedule property. Ex.A-1

stipulates to pay the remaining sale consideration of

Rs.8,25,000/- on or before 28.02.2007 so as to get a registered

sale deed. However, the respondent/defendant received an amount

of Rs.2,00,000/-, as part payment of the balance sale

consideration, from the plaintiff on 04.04.2007 by executing

Ex.A-2 endorsement, which was subsequent to the time limit of

28.02.2007. Though the deceased plaintiff was ready to pay the

remaining sale consideration but the respondent/defendant was

not ready to execute sale deed, due to his failure to obtain relevant

No Objection Certificate from the Government. To that effect, the

respondent issued Ex.A-5 in favour of the deceased 1st plaintiff.

Thereafter, the deceased 1st plaintiff issued a legal notice to the

respondent under Ex.A-3. The trial Court, without looking into the

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

said facts, simply, gave a finding that the deceased 1st plaintiff

failed to comply the terms and conditions of Ex.A-1 on or before

28.02.2007. In fact, after the stipulated period of 28.02.2007,

respondent received the part payment of sale consideration of

Rs.2,00,000/- on 04.04.2007, under Ex.A-2 endorsement. The

learned trial Judge framed Issue No.4 as to whether the

respondent can sell the suit schedule property without obtaining

permission from the State Government but the learned trial Judge

did not answer the said issue by holding that answering such an

issue would not arise on account of the findings given on issue

Nos.1 to 3. Plaintiff examined PW.5 and got marked Ex.X-4 which

reveals that there is no embargo to execute a sale deed because

the subject matter of the property is not covered under Section 22-

A of the Registration Act, 1908 (for short, 'the Registration Act').

The learned trial Judge failed to consider all these aspects. Taking

advantage of dismissal of the Suit, respondent/defendant is now

trying to interfere with the possession and enjoyment of the

petitioners/appellants over the suit schedule property. He is

further trying to dispose of the schedule property in favour of third

parties. Hence, the respondent/defendant is to be restrained,

pending disposal of the Appeal, from alienating the schedule

property in favour of third parties.

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

3. Respondent/defendant got filed his counter-affidavit denying

the case of the petitioners, resisting the prayer and seeking to

vacate the interim order and the respondent in Para Nos.1 to 8 of

the counter-affidavit denied the case of the petitioners as false. His

further contention, in brief, is that he is the absolute owner and

possessor of the suit schedule property, having acquired by way of

assignment from the Government of Andhra Pradesh in Form-D in

an extent of Ac.1.80 cents. It is settled law that under the

provisions of Andhra Pradesh Assigned Lands (Prohibition Of

Transfers) Act, 1977 (for short, 'the Assigned Lands Act'), assigned

land can only be enjoyed by the beneficiaries but they are not

alienable. Any agreement to sell away such land is against the

Public Policy and is void under Section 23 of the Indian Contract

Act, 1872 (for short, 'the Contract Act'). The allegations that the

respondent is trying to interfere with the suit schedule property to

encroach the same and is ready to sell away the same are all false.

In fact, respondent is having possessory and enjoyment rights

insofar as the law governing assignments is concerned. According

to Ex.B-3 before the trial Court, the subject property could not be

alienated. However, the subject land is amenable for resumption

by the Government for payment of ex gratia, if it so warrants. It

was stated by the Joint Collector that NOC cannot be issued to the

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

respondent by the Government. So, the schedule property cannot

be transferred in favour of any third parties by operation of law.

Hence, the relief sought for is not tenable as such the Court may

be pleased to vacate the interim order in I.A. No.1 of 2022.

4. Insofar as the prayer of the petitioners in I.A. No.2 of 2022 is

concerned, it is to grant temporary injunction so as to restrain the

respondent from interfering with the possession and enjoyment of

the petitioners over the schedule property. The case of the

petitioners is same as that of in I.A. No.1 of 2022. Similarly, the

counter-affidavit on behalf of the respondent is also same.

5. In fact, on numbering of the Appeal and on numbering of

these two Interlocutory Applications, this Court earlier on

28.12.2022 directed the respondent not to alienate the schedule

property by way of interim direction which is being extended from

time to time. Though I.A. No.1 of 2022 is filed under Section 151

of CPC but the petitioners are seeking restraint order against the

respondent as against alienation as such the Court can treat it as

a petition for temporary injunction.

6. Now in deciding these Applications, the simple question that

falls for consideration is whether the petitioners made out the

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

essential ingredients for grant of temporary injunction i.e., prima-

facie case, balance of convenience and likelihood of irreparable

injury so as to get the relief in both the Interlocutory Applications?

POINT:

7. Sri K. Rama Koteswara Rao, learned counsel for the

petitioners/appellants, would contend that since 2006 from the

date of Ex.A-1 onwards the deceased 1st plaintiff and after his

death the other petitioners/plaintiffs are in possession and

enjoyment of the suit schedule property. The husband of the 5th

petitioner i.e., 1st petitioner, who died, got the schedule property

under the cover of agreement of sale. Agreement of sale pleaded by

the petitioners evidencing delivery of possession is not in dispute.

There is no dispute by the respondent as regards Ex.A-1

agreement of sale and further Ex.A-2 part payment endorsement

dated 04.04.2007. Petitioners are in settled possession of the suit

schedule property. The payment under Ex.A-2 was subsequent to

the stipulated date i.e., 28.02.2007. The learned trial Judge did

not discuss these aspects and erroneously dismissed the Suit on

the ground that on or before 28.02.2007 the original plaintiff did

not pay the balance sale consideration. The Plaintiffs before the

trial Court adduced necessary evidence to show that the subject

matter of the property is not coming under the mischief of Section

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

22-A of the Assigned Lands Act. But on the ground that the

original plaintiff failed to show his readiness and willingness, the

learned trial Judge did not answer Issue No.4. Respondent is not

at all in possession of the schedule property as on date, which is

evident from the evidence of DW.1. Taking advantage of the

dismissal of the Suit, the respondent is now trying to interfere with

the suit schedule property. Even in the event of alienation also

there is likelihood of interference by third parties as such he

sought to grant temporary injunction in both the Applications.

8. Smt. M. Kiranmayee, learned counsel appearing for the

respondent/defendant, would contend that, According to Ex.A-1,

there was a stipulation on the part of the original plaintiff to

comply the terms and conditions before a specific date and it is

not in dispute that the original plaintiff failed to comply the said

term in paying the balance sale consideration. Apart from this, the

property covered under Ex.A-1 was not alienable and it is only to

be enjoyed by the respondent. The agreement of sale, sought to be

enforced against the respondent, is against the public policy. The

learned trial Judge with due reasons declined to grant the relief of

specific performance of agreement but granted alternative relief of

refund of the balance sale consideration etc. Challenging the

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

same, the unsuccessful plaintiffs/appellants filed the Appeal and

in the Interlocutory Applications, they sought to injunct the

respondent. She would rely upon a decision of the Hon'ble Apex

Court in Balram Singh v. Kelo Devi1 to contend that when the

claim of the plaintiff before the trial Court was based upon un-

registered agreement of sale, interim injunction cannot be granted

in his favour. So, the relief sought for by the

petitioners/appellants, prima-facie, is not tenable and the trial

Judge duly considered to refund the advance sale consideration as

such she seeks to dismiss both these Applications.

9. The fact that the 5th petitioner is the wife of deceased 1st

petitioner and the petitioners 2 to 4 are their children is not in

dispute. There is no dispute about the execution of suit agreement

of sale by the respondent in favour of 1st petitioner (original

plaintiff), who died during the course of trial before the learned

trial Judge. As evident from the copy of written statement, the

respondent did not deny about execution of the suit agreement of

sale before the learned trial Judge. Further, there was no denial

that the tenor of Ex.A-1 is such that the original plaintiff was

supposed to pay the remaining balance sale consideration on or

1 2022 (6) ALD 200

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

before 28.02.2007. There was also no denial of the fact that

subsequent to the stipulated time, the respondent received a sum

of Rs.2,00,000/- on 04.04.2007 which was endorsed on the

agreement of sale. These aspects were agitated by the petitioners

before the trial Court. The impugned judgment did not reveal that

the learned Additional District Judge applied his mind to

appreciate the contention in this regard. Apart from this, on the

ground that the original plaintiff failed to prove that he was ready

and willing to perform his part of contract, the learned trial Judge

declined to give any finding on Issue No.4 which is to the effect

that whether suit schedule property cannot be sold without the

permission of the State Government. There is no denial of the fact

that the plaintiffs before the trial Court examined PW.5 so as to

contend that the suit schedule property cannot be brought under

the mischief of Section 22-A of the Assigned Lands Act. So, it is

evident that the learned trial Judge, admittedly, did not give any

finding with regard to the contention of the plaintiffs that the time

stipulated i.e., on or before 28.02.2007 deemed to be extended on

account of the subsequent payment made on 04.04.2007. So the

petitioners/appellants are able to probabilize a theory that the

crucial contentions raised by them before the trial Court on two

important points were not discussed. However, all these things

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

have to be gone into during adjudication of the main Appeal but

the thing is that petitioners are able to show a bona-fide

contention at this stage.

10. It is to be noted that the contents in Ex.A-1 whispers the

delivery of possession of the schedule property as on the date of

Ex.A-1 by the respondent in favour of the original plaintiff, the

execution of which was not disputed. Ex.A-1 is dated 05.10.2006.

So, since 05.10.2006, the original plaintiff and after his death the

other plaintiffs i.e., the petitioners herein are said to be in

possession of the schedule property. As evident from the

deposition of DW.1 i.e., defendant before the trial Court, there is

an admission during the course of his cross-examination on behalf

of the plaintiffs that after 2006 the suit schedule property is not in

his possession and the same went into the possession of the

deceased 1st plaintiff till his death and thereafter it went into the

possession of his legal representatives. The above transfer of the

land took place in connection with the suit agreement under Ex.A-

1. The cross-examination part of DW.1 was done on 06.07.2022.

So, there is no denial of the fact that plaintiffs are in possession

and enjoyment of the suit schedule property.

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

11. The tenor of counter filed on behalf of the respondent means

that the respondent is still asserting about his possessory rights in

the suit schedule property. The respondent denied everything from

Para Nos.1 to 8 of the affidavit. So, when the petitioners pleaded

possession of the schedule property, now the respondent is even

denying the same asserting his possessory rights. So, I am of the

considered view at this stage that there is a bona-fide contention

raised by the petitioners that the respondent is bent upon to

interfere with the possession and enjoyment of the petitioners over

the schedule property. Normally, when an injunction is sought for

against alienation, pending disposal of the Appeal, the Court will

look into as to whether particular party had the benefit of such an

interim order or there is any material placed to show that opponent

is trying to alienate the schedule property pending disposal of the

Appeal. Here, in the event of alienation of schedule property also

there is every likelihood of interference by third parties into

possession and enjoyment of the petitioners.

12. The petitioners are in settled possession of the suit schedule

property and prior to them the husband of the 5th petitioner was in

possession of the schedule property. Having regard to the above, I

am of the considered view that it is absolutely necessary, pending

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

disposal of the Appeal, to protect the possession and enjoyment of

petitioners over the suit schedule property. Apart from this, in the

event of interference by the respondent, there is every likelihood of

irreparable injury. Apart from this, the balance of convenience is

in favour of the petitioners. This Court would like to make it clear

that the decision of the Hon'ble Apex Court in Balram Singh

(supra), relied upon by learned counsel for the respondent, has

nothing to do with the present situation. It is a case where the

party before the trial Court sought for permanent injunction

basing on an un-registered agreement of sale. The opponent put

forth a counter claim seeking a decree for delivery possession. The

Hon'ble Apex Court dealing with the same held that the plaintiff

cannot get the relief even for permanent injunction on the basis of

such an un-registered document/agreement.

13. Coming to the present case on hand, the facts are

distinguishable with the above decision. It is settled law that in a

suit for specific performance of agreement of sale, the un-

registered agreement can be marked. It is clearly laid down in

proviso to Section 49 of the Registration Act. Having regard to the

above, I am of the considered view that the decision of the Hon'ble

Apex Court in Balram Singh (supra), is not coming to the rescue

AVRB,J IA Nos.1 & 2/2022 in AS No.364/2022

of the respondent so as to deny the relief prayed by the

petitioners/appellants in the Interlocutory Applications. Having

regard to the above, I am of the considered view that, it is a fit case

to grant temporary injunction in favour of the petitioners and

against the respondent to protect their possession and to grant

injunction against alienation.

14. In the result, Interlocutory Application Nos.1 and 2 of 2022

are allowed granting temporary injunction in favour of the

petitioners and against the respondent restraining the respondent

from disposing of the suit schedule property in favour of third

parties and further restraining the respondent from interfering

with the possession and enjoyment of the petitioners over the

schedule property, pending disposal of the Appeal.

No costs.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 08.09.2023 DSH