Budireddi Appa Rao vs Morri Anand
2023 Latest Caselaw 4591 AP

       THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                      C.M.A.No.126 of 2022
JUDGMENT:

The Appellant herein filed this Appeal, against the Order

dated 25.02.2022 passed in I.A.No.599 of 2021 in O.S.No. 31 of

2021 on the file of the Court of the XIII Additional District

Judge, Gajuwaka, (in short the court below') which was filed

under Order XXXIX, rule 1 and 2 for grant of temporary

injunction restraining respondents 1 to 14 from making any

sort of further alienations including constructions over the

plaint schedule properties to the disposal of the suit.

2. The appellant herein is the appellant/ plaintiff;

respondents herein are the respondents/ defendants before the

court below.

3. The appellant herein have filed a suit for declaration of

right and for recovery of possession thereof, for permanent

injunction restraining the respondents 1 to 14 from interfering

with the plaint schedule property, for grant of mandatory

injunction directing them remove the existing illegal

constructions in the plaint schedule property.

4. The appellant is the absolute owner of the land to an

extent of Ac. 3.39 cents in Sy.No.103 of Thunglam Village,

having acquired the same from his father. Out of the said 2 Dr.KMR, J CMA.No.126 of 2022

extent, an extent of Ac. 1.00 cents was sold by the petitioner

and an extent of Ac. 1.34 cents was grabbed by others. The

appellant filed two suits before the trial courts earlier for grant

of permanent injunction, which were decreed. One Saragadam

Appala Naidu and others colluded with Nookambica

constructions represented by Tanakala Chalapathi Rao and

Kandregula Satyanarayana and created some sham and

fictitious documents. Therefore the appellant has filed a suit in

O.S.No.21 of 2021 for declaration of title in respect of the land

to an extent of Ac. 0.23 cents, which is pending and interim

order granted not to make any transactions over the said

property. An extent of 552.5 sq.yds in Sy.No.103 which is part

and parcel of Ac. 1.34 cents grabbed by other persons is the

petition schedule property. One Smt. Kunapureddy

Ranganayakamma was in illegal occupation of schedule

property, though the petitioner demanded her to vacate the

same, but the respondents 1 to 14 dismantled the old building

and started constructing an apartment hurriedly and came to

know that the 1st respondent executed a registered sale deed

dated 27.04.2021. A registered partition deed dated 26.07.2021

was entered into by respondents 2 to 14. They have no right or

title and valid possession. Hence the suit came to be filed.

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                                                 CMA.No.126 of 2022

5. The respondents filed counter before the court below

claiming that the appellant taking advantage of the fact that

name of the father of the petitioner and his great grandfather

are one and the same, namely Appala Naidu. There were several

alienations made The 1st respondent demolished the house and

constructed RCC residential building after obtaining approval

from the Municipal Corporation, Visakhapatnam on

11.10.2011. The 1st respondent sold away the said property to

respondents 3 to 14 under a Registered Sale Deed dated

27.04.2021 and they intended to construct an apartment and

partitioned that property under registered partition deed dated

26.07.2021. The appellant and his sisters sold away an of Ac.

0.60 cents under three registered sale deeds. One of the sale

deeds was executed by Gangamma being a minor represented

by the appellant as her guardian. The western boundary therein

was shown as land belonging to Sadaram Appa Rao. Other

sisters sold away their respective extents, wherein western

boundary was shown as land belonging to Sadaram Appa Rao.

Therefore the appellant has got nothing to do with the suit

schedule property. Hence the suit is liable to be dismissed.

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                                                     CMA.No.126 of 2022

6. During the course of enquiry, on behalf of appellant

Ex.P1 to P19 and on behalf of respondents Ex.R1 to R18 have

been marked as Exhibits and framed the following point for

determination as

"Whether the petitioner is entitled to temporary injunction restraining the respondents 2 to 14 from making any sort of further alienations including constructions over the petition schedule property as prayed for in the petition?"

7. After hearing on both the sides, the court below held

that the appellant has failed to prove his case and observed that

the documents filed by the parties have been discussed only for

the purposing of deciding the petition and when the parties go

for trial, they have to prove their respective cases in accordance

with law. Therefore it is needless to state that any constructions

that may be made by the respondents will be subject to result of

the main suit and accordingly the petition is dismissed.

Assailing the same, the present C.M.A came to be filed.

8. Heard Mr. P. Rajkumar, learned Counsel for the

Appellant and Mr. A.K.Kishore Reddy, learned counsel for the

respondents.

9. During hearing learned counsel for the appellant would

contend that the court below failed to see that the appellant 5 Dr.KMR, J CMA.No.126 of 2022

filed several suits, which are in his favour as he is absolute

owner of the property and granted permanent injunction. The

court below ought to have seen that 552.5 sq.yds in S.No.103,

which is a part and parcel of Ac. 1.34 cents grabbed by other

person is the petition schedule property. One Smt.

Kunapureddy Ranganayakamma was in illegal occupationof the

petition schedule property earlier, though the appellant

demanded her to vacate the same. Subsequently they

dismantled the old structures and started construction. Further

the 17th respondent also did not take steps to stop work inspite

of complaint also. Therefore, the court below has not considered

the issues in a right perspective and passed impugned order,

which is not in accordance with law. Hence the impugned order

is liable to be set aside.

10. Learned counsel for the respondents reiterated the

contents urged before the court below and vehemently opposed

to allow the C.M.A as the court below rightly discussed the

points in right perspective and rightly dismissed the petition in

accordance with law.

11.Learned counsel for the appellant filed Memo dated

04.09.2023 stating that as per directions of the court below in 6 Dr.KMR, J CMA.No.126 of 2022

I.A.No.599 of 2021, dated 09.02.2022 undertaking affidavit filed

by the respondents 2 to 14 and the photographs showing the

construction activity being undertaken by them in the plaint

schedule property for perusal of the court. Wherein it was stated

that the 2nd respondent undertake and declare that the

constructions made by them shall be subject to result of the

suit and they shall be liable to remove the constructions.

12. Perused the record.

13. As per status dated 09.02.2022 of the court below, the

court below suggested for giving of an undertaking by the

respondents/ defendants for their removal of the construction,

made by them, voluntarily in case they lose the case, for which

both the parties agreed the same. Basing on the directions, the

respondents have given undertaking.

14. It is contended by the learned counsel for the

appellant that the respondents given undertaking and

proceeding with construction and 80-90% of the work have been

as per photographs filed along with a Memo. Since the suit is

being kept pending and completed construction and now the

respondents are making hectic efforts to sell away the plots to

various persons by creating third parties interest over the 7 Dr.KMR, J CMA.No.126 of 2022

property. If they succeed, any amount of prejudice will be

caused. Hence learned counsel for the petitioner expressed

urgency to dispose of the suit before the court below and

requesting to issue direction to the respondents not to sell any

of the plot in the apartment to any third parties till the disposal

of the suit before the court below.

15. As could be seen from the photographs, majority of

work have been completed in the apartment, therefore there is

every possibility to sell the plots to various individuals by the

respondents, if they to do so, third parties interest will be

involved, again the appellant has to take legal steps against

them also as contended by the appellant. Therefore to avoid

multiplicity of proceedings in the matter and in view of several

rival contentions raised by the both the counsel, which has to

be decided on trial only before the court below.

16. Under the aforesaid circumstances, this Court is

inclined to dispose of the C.M.A, while directing the respondents

not to create any third parties interest by selling the plots in the

apartment/ property till finality of the suit before the court

below. The court below is directed to conclude the trial and

dispose of the suit on merits as expeditiously as possible. Both 8 Dr.KMR, J CMA.No.126 of 2022

the parties to the suit are hereby directed to co-operate with the

court below to dispose of the suit at the earliest.

17. With the above direction, the C.M.A is disposed of.

There shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any,

pending shall stand closed.

________________________________ Dr.JUSTICE K. MANMADHA RAO

Date 29.09.2023.

KK
                              9                      Dr.KMR, J
                                           CMA.No.126 of 2022



     THE HON'BLE DR.JUSTICE K. MANMADHA RAO




                    C.M.A.No.126 of 2022




Date: 29.09.2023.

KK