Telangana High Court
Smt. A.Nageswaramma vs K. Vijaya Laxmi on 31 January, 2025
Author: T. Vinod Kumar
Bench: T.Vinod Kumar, P.Sree Sudha
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT JUSTICE P.SREE SUDHA
C.M.A. No.631 of 2024
O R D E R:
(per Hon'ble Sri Justice T.Vinod Kumar)
Heard learned counsel for the appellants, Sri A.Venkatesh, learned
Senior Counsel appearing on behalf of Sri S.Srinivas, learned counsel for
respondent No.5, and perused the record.
2. This Civil Miscellaneous Appeal is directed against the order,
dt.11.11.2024 in IA.No.473 of 2024 in OS.No.80 of 2024 on the file of the
Senior Civil Judge-cum-Additional Chief Judicial Magistrate, Medchal
Malkajgiri District at Kukatpally.
3. The appellants herein are the plaintiffs in the above suit filed. The
appellants had filed the said suit seeking declaration that plot No.103 in
survey No.121-part of Kukatpally Village, being claimed by the defendants as
against the suit schedule property i.e., plot Nos.101 & 102 in survey No.121-
part of Kukatpalli Village & Municipality, belonging to the plaintiffs, does not
exist and to grant perpetual injunction restraining the defendants from
interfering with their peaceful possession over the suit schedule plot No.101 &
102.
4. The appellants further contend that pending consideration of the
aforesaid suit filed by them, they had filed the underlying interlocutory
application viz., IA.No.473 of 2024 under Order XXXIX Rules 1 & 2 of CPC for
grant of injunction, and that the Court below dismissed the said application
without appreciating the title of the appellants to the subject property has
been affirmed by the Civil Court in O.S.No.549 of 1996 as confirmed in
AS.No.97 of 2000, further confirmed by the withdrawal of the Second Appeal
vide SA.No.487 of 2005, dt.14.08.2023.
5. The appellants further contend that notwithstanding the aforesaid
orders, the respondents, in particular the 5th respondent, is proceeding with
the construction on the basis of the municipal permission obtained, and the
Court below had erred in not injuncting the respondents from proceeding with
the construction, thereby interfering with the possession of the appellants
over the subject property.
6. Per contra, learned Senior Counsel appearing on behalf of the 5th
respondent would submit that since, the appellants by their own admission in
the plaint filed in OS.No.80 of 2024 admit to the fact of existence of plot
No.103 by showing the same as one of the boundaries, they cannot plead non-
existence of plot No.103.
7. Learned Senior Counsel would further contend that the suit vide
O.S.No.549 of 1996 filed by the 1st respondent's vendor was only an
injunction suit simplicitor and the withdrawal of second appeal vide
SA.No.487 of 2005, during the year 2023 was on account of the plot of land
being sold by the 2nd respondent herein in favour of the 1st respondent herein.
8. Learned Senior Counsel would further contend that on the appellants
herein interfering with the 1st respondent's possession over the subject
property on being purchased by her from the 2nd respondent herein in the
year 2000, she had filed a suit vide OS.No.219 of 2008 against the 1st
appellant herein and the same was decreed on 14.11.2007, whereby the 1st
appellant herein was restrained from interfering, by granting perpetual
injunction either by herself, her henchmen, supporters and agent, and that
the said order in the aforesaid suit had attained finality.
9. Learned Senior Counsel would further contend that since, the
respondents are already injuncted from interfering with the peaceful
possession by virtue of the aforesaid judgment and decree in OS.No.219 of
2008, the appellants herein are not entitled for being granted with contra-
injunction, more particularly when the 5th respondent herein is proceeding
with the construction by obtaining necessary and valid permission from the
concerned authorities.
10. We have taken note of the respective submissions made.
11. Though the 2nd respondent herein was unsuccessful in getting an
injunction against the 1st appellant herein, and the said order having attained
finality, it is to be noted that the 2nd respondent herein had sold the subject
property subsequently in favour of the 1st respondent herein under a
registered sale deed, dt.10.01.2000. The 1st respondent on purchase of the
property had initiated proceedings thereafter against the 1st appellant herein
vide OS.No.219 of 2008, and the said suit has been decreed in favour of the
1st respondent herein vide judgment and decree, dt.14.11.2017, whereby the
1st appellant herein was injuncted from interfering with the possession of the
1st respondent herein.
12. Further, the trial Court had recorded a categorical finding as to the
appellants not being in possession, which is one of the prerequisite for grant
of injunction. Also, it is not shown to this Court of the appellants herein
having initiated any action against the said judgment and decree passed in
O.S.No.219 of 2008 as of date.
13. In the absence of the appellants herein showing to this Court of the
said order in OS.No.219 of 2008 being stayed or set aside by the appellate
Court, this Court is of the considered view that it is not open for the
appellants to file any suit seeking injunction against the 5th respondent, who
has only succeeded to the subject property under a registered gift deed
executed by the 1st respondent, being his mother.
14. Thus, this Court is of the considered view that the order of the Court
below in refusing to grant injunction in the underlying interlocutory
application vide IA.No.473 of 2024 filed by the appellants under Order XXXIX
Rules 1 & 2 of CPC in the suit vide OS.No.80 of 2024, does not suffer from
any error or irregularity, for being interfered with by this Court in this appeal.
15. Accordingly, the Civil Miscellaneous Appeal fails and is dismissed. No
order as to costs.
16. Consequently, miscellaneous petitions pending, if any, shall stand
closed in the light of this final order.
___________________
T. VINOD KUMAR, J
_________________
P.SREE SUDHA, J
31st January, 2025
gra
