K. Suvarna Devi vs M. Mohan Rao And 2 Others
2022 Latest Caselaw 5904 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                     C.M.A.No.528 of 2020

JUDGMENT:

This Civil Miscellaneous Appeal is filed by the

appellant/plaintiff assailing the order dated 28.12.2019 in

I.A.No.440 of 2015 in OS No.239 of 2015 on the file of the

II Additional District Judge, Ranga Reddy District at L.B.

Nagar.

2. As per the order impugned dated 28.12.2019, a

common order was passed in IA Nos.440 and 441 of 2015

in OS No.239 of 2015 by the learned II Additional District

Judge wherein the applications filed under Order-39 Rules

1 & 2 read with Section 151 of the Civil Procedure Code,

1908 (for short 'C.P.C.') to restrain the respondents/

defendants from interfering with the peaceful possession

and enjoyment of the petitioner/plaintiff over the suit

schedule property and to restrain them from alienating the

suit schedule property pending disposal of the original suit

were dismissed after due enquiry. Assailing the order dated

28.12.2019 in IA No.440 of 2015, the present C.M.A. is

filed.

AVR,J CMA No.528 of 2020

3. This I.A.No.440 of 2015 was only filed under

Order-39 Rules 1 & 2 read with Section 151 of C.P.C. for

ad-interim injunction restraining the respondents/

defendants and their men from interfering with day-to-day

business of the petitioner/plaintiff in the suit schedule

premises pending disposal of the original suit.

4. Heard learned counsel on behalf of the

appellant/plaintiff and respondents/defendants. The

submissions made by the learned counsel on either side

have received due consideration of this Court.

5. For the sake of convenience, the parties are

hereinafter referred to as plaintiff and defendants as

arrayed in the original suit.

6. The plaintiff has filed the original suit in OS

No.239 of 2015 for declaration of ownership and

possession and also to declare that the registered sale deed

dated 24.09.2007 as illegal, null and void and for

consequential perpetual injunction. Along with the said

AVR,J CMA No.528 of 2020

original suit, the present application is filed for the relief

stated above.

7. During enquiry in IA No.440 of 2015 along with

IA No.441 of 2015, in all Exs.P.1 to P.12 documents were

marked on behalf of the petitioner/plaintiff, whereas

Exs.R.1 to R.7 documents are marked on behalf of the

respondents/defendants. The learned II Additional District

Judge after careful appreciation of the entire material

including the documents as indicated above, held that

except certain oral submissions with regard to possession

of suit schedule property from the date of agreement of

sale-Ex.P.2, the plaintiff has not produced any

documentary evidence. Further held that the boundaries in

respect of land covered by Ex.P.2 and the sale deed-Ex.R.3

under which the defendants are claiming suit schedule

property are quite distinct and that there is no prima facie

case in favour of the plaintiff and the balance of

convenience is not in favour of the plaintiff and that the

defendants would suffer more irreparable loss and injury

when compared with the plaintiff in case of grant of

AVR,J CMA No.528 of 2020

temporary injunction. Accordingly, both the interlocutory

applications in IA Nos.440 and 441 of 2015 were

dismissed.

8. The simple case of the plaintiff, as culled out

from the pleadings in the plaint, is that the plaintiff has

entered into the notarized agreement of sale with the

erstwhile owner-Smt.G.B. Suguna on 15.07.1986 as in

Ex.P.2, though the caption of said document reflects as

agreement of sale, it is out and out sale and the entire sale

transaction is completed, the plaintiff has paid the entire

sale consideration of Rs.25,000/-, it was acknowledged by

the owner, possession of the property was also delivered,

pursuant to the said agreement of sale and the owner has

also delivered a link document dated 16.01.1982, but failed

to execute the regular registered sale deed. Having vexed

with the attitude of the erstwhile owner, the plaintiff herein

has filed OS No.929 of 2000 on the file of the Principal

Junior Civil Judge, Ranga Reddy District, East & North, for

specific performance of said agreement of sale and also

obtained ad-interim injunction, vide IA No.2998 of 2000

AVR,J CMA No.528 of 2020

dated 07.09.2000, but as the matter was settled amicably

outside the Court, the suit was withdrawn on 08.03.2001,

thereafter, sale deed was not executed. Thus, the

petitioner has perfected her title. She has paid the entire

sale consideration to the erstwhile owner, but all of sudden

on 24.07.2014, the defendants have tried to interfere with

her possession claiming that they are the real owners and

that they have purchased the suit schedule property from

the erstwhile owner-Smt.G.V. Suguna. Hence, she has

verified the records and filed the present suit.

9. The specific case of the defendants is that the

suit filed by the plaintiff is not maintainable, she has no

locus standi to file the suit and the interlocutory

application for interim injunction, she is neither the owner

nor in possession of suit schedule property, the description

of boundaries given in the petition schedule property are

not in accordance with the boundaries as mentioned in

Ex.P.2-agreement of sale dated 15.07.1986, the petitioner

was never in possession of the suit schedule property, she

has no prima facie case and balance of convenience is not

AVR,J CMA No.528 of 2020

her favour. Basing on the agreement of sale, she cannot

claim ownership over the suit schedule property. Though

the plaintiff has filed OS No.929 of 2000 for specific

performance, it was unconditionally withdrawn and no

such registered sale deed was executed pursuant to the

alleged settlement outside the Court. Whereas the

defendants have obtained a sale deed in respect of suit

schedule property, vide document No.6752 of 2007 dated

24.09.2007 from Kum. M. Jyothi, who in turn purchased

the suit schedule property under agreement of sale-cum-

General Power of Attorney from the original owner-Smt.

Suguna and since the time of purchase, they are under

exclusive possession and enjoyment of the same.

10. Be it stated that admittedly/undisputedly the

plaintiff has filed OS No.929 of 2000 on the file of the

learned Principal Junior Civil Judge, Ranga Reddy District,

East and North, for specific performance of contract of sale

deed dated 15.07.1986 as in Ex.P.2. Copy of the plaint is

marked as Ex.P.3/Ex.P.8, that suit was dismissed as not

pressed and the plaintiff has not obtained any permission

AVR,J CMA No.528 of 2020

from the Court before withdrawing the said suit. Though,

it is alleged by the plaintiff that in view of amicable

settlement outside the Court for execution of the registered

sale deed that the suit in OS No.929 of 2000 was

withdrawn by her, no such document is filed by the

plaintiff to that effect.

11. As per the plaint averments, possession was

delivered to the plaintiff and she is in exclusive possession

and enjoyment of the suit schedule property from the date

of Ex.P.2. But, having filed the suit for specific performance

in OS No.929 of 2000, the plaintiff withdrew the same and

that suit not reached/ended to its logical conclusion. The

plaintiff has also not filed any piece of paper to show her

possession or enjoyment either before filing the suit in OS

No.929 of 2000 or subsequent to withdrawal of the same,

except Ex.P.4 complaint lodged before the Police,

Naredmet, Exs.P.5 & 6 letter addressed and

acknowledgment from the GHMC and Ex.P.7 with regard to

payment of certain amount to the President of Muthyala

Rao Cooperative Housing Society. But these documents

AVR,J CMA No.528 of 2020

stated above by no stretch of imagination would establish

the title and possession over the suit schedule property.

12. Whereas, the defendants having pleaded that

they have purchased the suit schedule property through

Ex.R.3 able to establish that their predecessor-in-title has

obtained agreement of sale-cum-G.P.A. and that a sale

deed was executed in Ex.R.3 in their favour. They have

also furnished Encumbrance Certificate and electricity

consumption bills to show they are prima facie possession

over the suit schedule property. It is pertinent to mention

that though the plaintiff is claiming suit schedule property

under Ex.P.2, the boundaries mentioned therein and the

boundaries of suit schedule property are quite distinct and

the plaintiff is not able to explain the same.

13. This application in IA No.440 of 2015 is filed

under Order-39 Rules-1 & 2 of CPC for temporary

injunction. Order-39 of CPC provides that in any suit if it

is proved by the affidavit or otherwise that the defendant

threatens the plaintiff with respect to the property in the

suit, the Court may by order grant temporary injunction,

AVR,J CMA No.528 of 2020

restraining the defendant until the disposal of the suit, as

the Court thinks fit. The fundamental principle for grant of

temporary injunction is that no injunction would be

granted unless a prima facie case is made out from the

plaint, the documents filed along with it and the affidavit

filed by the party. The second principle is that unless the

injunction prayed for is not granted, the plaintiff would be

put to irreparable loss and injury before the suit is finally

decided.

14. The object of granting temporary injunction is

to preserve the matter in status quo till the case is finally

decided. The law is also well-settled that the grant of

interim injunction is a discretionary remedy and in

exercise of judicial discretion in granting or refusing such

relief, the Court will look into the following:

i) whether the person seeking a temporary injunction has made out a prima facie case. This is sine qua non;

ii) whether the balance of convenience is in his favour i.e., whether it would cause much inconvenience to him if injunction

AVR,J CMA No.528 of 2020

is not granted than the inconvenience which either side would be put if injunction is granted.

iii) Whether such person seeking a temporary injunction would suffer irreparable loss and injury.

However, it is not necessary that all the three conditions

must be satisfied. That the first condition is sine qua non.

At least two conditions must be satisfied by the plaintiff

conjunctively and mere proof of one of three conditions

does not entitle a person to obtain temporary injunction.

15. The above being the legal position, let me

examine the pleadings in the plaint and averments in the

supporting affidavit filed in IA No.440 of 2015 and Exs.P.1

to P.12 and Exs.R.1 to R.7. As discussed above, none of

the documents filed on behalf of the plaintiff shows her

exclusive possession, title or enjoyment over the suit

schedule property and right from the date of Ex.P.2 or from

the date of dismissal of the suit in OS No.929 of 2000 or at

any point of time. Whereas, Ex.R.3-document would show

that the defendants have obtained sale deed through the

AVR,J CMA No.528 of 2020

GPA holder of the original title holder and they have also

filed link documents and electricity consumption bills to

establish their possession.

16. Among all these documents exhibited on behalf

of both the parties, Ex.R.3 is the crucial document i.e., sale

deed executed in favour of the defendants prima facie

discloses the possession of defendants over suit schedule

property. Equally, Ex.P.8 copy of the plaint along with a

memorandum filed by the plaintiff showing that the

plaintiff is not pressing the suit and the suit may be

dismissed as withdrawn on 08.03.2001 is fatal to the case

of the plaintiff, since subsequent to the withdrawal of the

suit in OS No.929 of 2000 which was filed for specific

performance of agreement of sale dated 15.07.1986, no

steps were taken nor any sale deed was executed in favour

of the plaintiff.

17. That being the factual situation, in my

considered opinion, the plaintiff has failed to establish the

essentials required for grant of ad-interim injunction as

prayed for and that I do not find any irregularity in

AVR,J CMA No.528 of 2020

appreciation of the material available on record by the

Court below. The order impugned dated 28.12.2019 in IA

No.440 of 2015 does not warrant any interference by this

Court and it is sustained.

18. In the result, the Civil Miscellaneous Appeal is

dismissed as devoid of merits. The order impugned dated

28.12.2019 in IA No.440 of 2015 in OS No.239 of 2015 on

the file of the II Additional District Judge, Ranga Reddy

District at L.B. Nagar, is hereby confirmed. However, in the

circumstances of the case, there shall be no order as to

costs.

Miscellaneous Applications, if any pending in this

appeal, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 16.11.2022 Isn