Telangana High Court

Sandeep Khurana vs Kishore Lal Yadav Died As Per Lrs on 30 July, 2021

Bench: M.S.Ramachandra Rao

  THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO


                 Civil Revision Petition No.972 of 2021


ORDER :

This Civil Revision Petition is filed under Article 227 of the

Constitution of India challenging the order dt.30.04.2021 passed in

Interlocutory Application No.83 of 2021 passed in O.S.No.516 of

2020 on the file of III Junior Civil Judge, City Civil Court,

Hyderabad.

2. The petitioner herein is plaintiff in the above suit.

The case of the petitioner/plaintiff

3. He filed the said suit for declaration of his title to the plaint

schedule property and for a perpetual injunction restraining

respondents from interfering or dispossessing him from the subject

property. He alleged that he is in possession of the suit schedule

property where he was running a shop by name Haryana Handloom

Shop since 1966 through his father, that his father expired, that

thereafter, he was enjoying the property by paying necessary taxes.

4. He contended that there was entry in the Town Survey Land

Records in respect of the subject property as G - Abadi; that he was

also issued a notice under Section 7 of the Andhra Pradesh Land

Encroachment Act, 1905 by the 5th respondent and that he had also

filed an application for regularization of his occupation before the ::2:: MSR,J crp_972_2021

State Government. He contended that his father and himself had been

in possession for more than 50 years and he has acquired title to the

plaint schedule property through adverse possession.

5. According to him, Kishore Lal Yadav (the deceased - 1st

defendant) had filed R.C.No.281 of 2013 before the III Additional

Rent Controller, City Small Causes Court, Hyderabad for his eviction;

that he had filed a counter in the said case stating that the property did

not belong to the Kishore Lal Yadav (deceased-1st defendant) as his

vendor Late Ajay Kumar had no title to convey because it was

Government land; that the said R.C. was allowed by III Additional

Rent Controller on 21.08.2019; that Kishore Lal Yadav died in the

mean time; and petitioner had preferred a Rent Appeal R.A.No.111 of

2019, and the Additional Chief Judge, City Small Causes Court,

Hyderabad on 22.01.2019 had ordered stay of eviction of petitioner

until further orders, and that the said appeal is pending. He also stated

that he had issued notice under Section 80 of the C.P.C. since there

was a threat of dispossession.

6. In the suit, the petitioner impleaded the legal representatives of

Kishore Lal Yadav as defendant nos.1 and 2; the Collector,

Hyderabad District; Revenue Divisional Officer, Nampally; and the

Tahsildar, Nampally as defendant nos.3 to 5 in the suit.

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IA No.83 of 2021

7. After the suit was filed, the structure in the suit schedule

property was destroyed in a fire mishap which allegedly occurred on

06.02.2021 and the petitioner then filed Interlocutory Application

No.83 of 2021 seeking permission of Court below to raise a temporary

structure in the suit schedule property, pending disposal of the suit.

8. He contended that all the goods in the shop worth Rs.5 lakhs

were destroyed and he had also suffered a loss of Rs.25 lakhs on

account of the said fire accident and a case was registered with the

Police Station, Sultan Bazar, Hyderabad, and investigation is in

progress in F.I.R.No.38 of 2021.

9. He also alleged that his family consists of a widowed mother

who is a Senior Citizen, and a divorced sister and a mentally retarded

brother, apart from petitioner's own wife and minor children; that the

source of income for their survival was the said shop; taking

advantage of the destruction of the shop, the State Government put up

a board on 08.02.2021 showing that the property belongs to the

Government; that for the survival of petitioner and his family

members, he may be permitted to raise a temporary structure on the

property to run a business as defendants / respondents were

obstructing him from raising any temporary structure therein.

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The counter of respondents 1 and 2

10. Counter-affidavit was filed by respondent nos.1 and 2 disputing

the contentions of petitioner and stating that the petitioner was only a

tenant of Late Kishore Lal Yadav; that though the Revenue

Department issued a notice under Section 7 of the Andhra Pradesh

Land Encroachment Act, the said Kishore Lal Yadav filed objections

thereto and also filed a Writ Petition No.32072 of 2013; that petitioner

and his father, having admitted landlord and tenant relationship and

had paid rents, cannot now set up a plea of adverse possession. He

admitted about filing of R.C.No.281 of 2013 and the stay granted in

favour of petitioner in R.A.No.111 of 2019 against the judgment in

the R.C. by the Additional Chief Judge, City Small Causes Court,

Hyderabad.

11. It was denied that any business was being carried on in the suit

schedule property and it is denied that it was the only source of

income for petitioner's family, though the fire accident was admitted.

They disputed the title of the State Government and opposed grant of

any permission to petitioner to construct temporary structure and

commence his business.

The stand of the 5th respondent

12. The 5th respondent filed a counter on behalf of respondent nos.3

and 4 disputing the possession of petitioner over the suit schedule

property and contending that the subject land is Government land and ::5:: MSR,J crp_972_2021

only the State is the title-holder, and not the petitioner or defendant

nos.1 and 2. They alleged that petitioner, under the guise of certain

documents, tried to encroach the suit schedule property for which

notice was given under Section 7 of the AP Land Encroachment Act,

1905 on 20.05.2011; that petitioner replied to the notice on

23.05.2011, and thereafter applied for regularization under

G.O.Ms.No.166 dt.16.02.2008, and that the same is pending. They

also disputed the claim of defendant nos.1 and 2 and denied that

petitioners suffered loss on account of fire accident.

The order of the Court below

13. Before the Court below, the petitioner filed Exs.P.1 to P.24

while the respondents filed Exs.R.1 and R.2.

14. By order dt.30.04.2021, the Court below dismissed

Interlocutory Application No.83 of 2021 in O.S.No.516 of 2020.

15. After noting the contentions of parties and referring to the

exhibits filed by them, it observed that petitioner has set up title to the

suit schedule property which is disputed by the State Government and

respondent nos.1 and 2, but observed that if petitioner is permitted to

raise any temporary structure in the suit schedule property it would

amount to decreeing the suit; and no interim relief can be granted

which would amount to decreeing the suit.

16. It observed that title to the property itself is in question; that

even to erect a temporary structure, permission by the Greater ::6:: MSR,J crp_972_2021

Hyderabad Municipal Corporation under Section 428 of the Greater

Hyderabad Municipal Corporation Act, 1955 is necessary, but there is

no whisper with regard to petitioner approaching the Municipal

offices for granting such permission; that the Court cannot go into the

merits of the case at this point of time, and there are trible issues to be

decided; and if permission, as sought by petitioner to raise temporary

structure is granted, it would amount to a pre-trial decree and it would

not be in the ends of justice to grant permission to make temporary

structure by exercising inherent powers.

The present CRP

17. Challenging the same, the present Civil Revision Petition is

filed.

18. Sri Kiran Palakurthi, counsel for petitioner, contended that the

Court below erred in refusing to grant relief in Interlocutory

Application No.83 of 2021 in O.S.No.516 of 2020 and permit the

petitioner to put up a temporary structure for doing business having

regard to the fact that the shop where the petitioner was doing

handloom business was destroyed in a fire accident on 06.02.2021

thereby causing huge loss to petitioner. He again reiterated that if

petitioner is not allowed to erect a temporary structure in the suit

schedule property, grave prejudice would be caused to petitioners

since their source of livelihood had been destroyed in the fire

accident.

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19. On the other hand, the learned Additional Government Pleader

for Appeals and Arbitration, appearing for respondent nos.3 to 5

refuted the said contentions and supported the order passed by the

Court below.

Consideration by the Court

20. I have noted the contentions of both sides.

21. Admittedly, there is a serious dispute about title to the property

among petitioner, respondent nos.1 and 2 and also respondent nos.3 to

5. The relief sought by petitioner is in the nature of an interim

mandatory injunction.

22. In Dorab Cawasji Warden vs Coomi Sarob Warden1, the

principles governing grant of such interim mandatory injunctions have

been set out. The Supreme Court held as follows :

"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:



    (1990) 2 S.C.C. 117
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                   (1)     The plaintiff has a strong case for trial. That is, it

shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one seeking such relief.

17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion."

23. In Deoraj v. State of Maharashtra2 also the Supreme Court

reiterated the same principles in the following terms:

"12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case

-- of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously

(2004) 4 SCC 697, at page 703 ::9:: MSR,J crp_972_2021

such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.

24. Thus, one of the elementary principles of granting relief of this

nature is that the plaintiff has a strong case for trial and it should be on

a higher standard than a prima facie case that is normally required for

a prohibitory injunction.

25. In the instant case, the claim for title of petitioner is not

supported by any document and though it is pleaded that petitioner

and his family acquired title by adverse possession by being in

possession for 50 years, the matter requires to be examined with

reference to evidence on record as to whether such a plea is valid or

not. Therefore, it cannot be said that the petitioner has been able to

show a strong case of a very high standard than a prima facie case.

26. Also, since the very suit is for declaration of title and for a