Andhra HC (Pre-Telangana)
P.Lakshminarayana And Another vs T.Madhu Babu And Others on 10 April, 2014
Author: C.V.Nagarjuna Reddy
Bench: C.V.Nagarjuna Reddy
THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY
CIVIL MISCELLANEOUS APPEAL No.667 of 2013
10-04-2014
P.Lakshminarayana and another .. Appellants
T.Madhu Babu and others.. Respondents
Counsel for the appellants: Mr. P. Gangaiah Naidu, Senior Counsel,
For Mr. N. Bharath Babu
Counsel for the respondents: Mr. D. Hanumantha Rao
<GIST:
>HEAD NOTE:
? CITATIONS:
JUDGMENT:
This civil miscellaneous appeal arises out of order dated 17.07.2013 in I.A.No.3 of 2013 in O.S.No.7 of 2013 on the file of the learned Principal Senior Civil Judge, Tirupati.
The appellants herein filed O.S.No.7 of 2013 for permanent injunction restraining the respondents herein from interfering with their possession of the property bearing Municipal Door No.18-8-39C comprised in Sy.No.2/2 situated at Ward No.18, Madhura Nagar, Tirupati Municipal Corporation.
It is the pleaded case of the appellants that one T. Munaswamy Naidu, paternal grandfather of respondents 1 to 4, sold 0.28 cents of land, forming part of suit schedule land, to one T.G. Venkatarama Naidu, under Ex.P1 registered sale deed dated 29.04.1981, that the said Venkatarama Naidu, in turn, sold 200 square yards to one R. Madhura Vani under Ex.P2 registered sale deed dated 09.12.1983 and that he has gifted the remaining extent of land to his daughter and son-in-law under Ex.P3 gift deed dated 01.06.1996. The petitioners claimed to have purchased the entire suit schedule property under Exs.P6 and P4- registered sale deeds dated 10.07.2000 and 30.06.2004 executed by the daughter and son-in-law of T.G. Venkatarama Naidu and Madhura Vani respectively. It is the further pleaded case of the appellants that since the date of their purchase, they have been in possession and enjoyment of the suit schedule property, wherein a nursery is being run, that an old structure is in existence and that the property is surrounded by a compound wall on all four sides. That the father of respondents 1 to 4, namely; T. Krishnama Naidu filed O.S.No.61 of 1981, seeking partition of 71 items including the suit schedule property, and the said suit was dismissed on 29.08.1988, holding that there was prior partition. Against the same, A.S.No.200 of 1989 was filed before this Court. This Court disposed of the said appeal, by judgment and decree dated 28.12.2007, whereby this Court has remanded the case to the lower Court for ascertaining as to the items of the properties which were available for partition on the date of filing of the suit. After remand, the trial Court has passed a preliminary decree in respect of 45 items as against 71 items sought for partition and directed that the property shall be divided into 480 shares and respondents 1 to 4 were declared as eligible to claim 225/480th share in all the 45 items. Feeling aggrieved by the said judgement and decree, the other members of the family who were parties to the suit filed A.S.No.810 of 2010 before this Court, wherein an interim order not to pass final decree has been passed and the same is in force. After passing of the preliminary decree, respondents 1 to 4 have sold their purported share of properties in favour of respondents 5 to 8 under Exs.P13 and P14 registered sale deeds dated 14.12.2012 and 15.12.2012 respectively. The appellants have alleged that in pursuance of the said sale deeds, the purchasers have tried to interfere with their possession. Therefore, they have filed the suit for injunction. Pending the suit, they have also filed I.A.No.3 of 2013 for interim injunction.
Respondent No.1 filed a counter-affidavit, which was adopted by respondents 2 to 4. Respondent No.7 filed a separate counter-affidavit, which was adopted by respondents 5, 6 and 8. In both the counter- affidavits, they have taken the stand that the purported sale made by Munaswamy Naidu in favour of T.G.Venkatarama Naidu itself was illegal inasmuch as the suit schedule property was held to be joint family property and that the sale deed was executed one day after filing of the partition suit, which is hit by doctrine of lis pendens. It was further pleaded that respondents 1 to 4 who were allotted 225/480th share in the preliminary decree were allegedly entitled to sell the property and accordingly they have sold the property to respondents 5 to 8 under registered sale deeds. They have also filed certified copy of commissioners report filed in I.A.No.927 of 2010 in O.S.No.61 of 1981 dated 15.06.2013 and got the same marked as Ex.R6 to show that these properties have fallen to the shares of respondents 4 to 6.
Ordinarily, an application for injunction is adjudicated based on the elements of prima facie case, balance of convenience and irreparable injury. It is disappointing to note that the trial Court has not considered any of these elements. The only ground on which the trial Court dismissed the application was that when the suit schedule property is the subject matter of a partition suit, the suit for bare injunction without seeking the relief of declaration of title is not maintainable. In my opinion, this reasoning of the trial Court is wholly without any basis. The appellants have based their right to be in possession of the property on the registered sale deeds executed as far back as the years 2000 and 2004. A person whose physical possession is threatened is certainly entitled to seek protection of his possession by seeking the relief of injunction. Thus, the law does not preclude the appellants herein from filing a suit for bare injunction despite the fact that a preliminary decree has already been passed in favour of respondents 1 to 4. Undisputedly, the said preliminary decree is the subject matter of an appeal wherein the appellants have also filed an application for their impleadment and the said petition is stated to be pending. The respective rights of the parties are, therefore, expected to be adjudicated in the pending appeal. If pending the appeal, the appellants purported possession is threatened, they are entitled to file suit for injunction simplicitor and that is what they have precisely done. The trial Court, therefore, ought to have considered whether the appellants are in physical possession of the property and if so the respondents have been threatening to dispossess them. It ought to have disposed of the I.A. by applying the well-known parameters of prima facie case, balance of convenience and irreparable injury, instead of dismissing the application on a misconception that the suit for injunction simplicitor is not maintainable.
For the above-mentioned reasons, the order under appeal is set aside. The trial Court is directed to dispose of I.A.No.3 of 2013 afresh, keeping in mind the observations made hereinabove, within three months from the date of receipt of this order. Pending disposal of the I.A., interim injunction granted in favour of the appellants by this Court shall continue, subject to the condition that the appellants shall not change the physical features of the land.
The civil miscellaneous appeal is accordingly allowed. As a sequel, C.M.A.M.P.Nos.1728 and 1824 of 2013 shall stand disposed of as infructuous.
_____________________ C.V. NAGARJUNA REDDY, J 10th April, 2014