Andhra Pradesh High Court - Amravati
Tadiboina Gurumurthy 9 Ors vs Tadiboina Tataiah Died 16 Ors on 16 February, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
I.A.Nos.2 of 2021
In
A.S.No.915 of 2010
ORDER:
I.A.No.2 of 2021 is filed under Order XXXIX Rule 1 and Section 151 of the Code of Civil Procedure, 1908 ('the Code') seeking interim injunction restraining the 5th respondent, her supporters and associates not to change the nature or physical features including alienation of items 2 to 4 of the schedule property in O.S.No.154 of 1998 on the file of XI Additional District and Sessions Judge (FTC), Guntur at Tenali, pending disposal of A.S.No.915 of 2010 on the file of this Court.
2. Heard learned counsel for the parties.
3 (a) Certain factual aspects of the case relevant to this petition are as follows:
The petitioners in I.A.No.2 of 2021 are the plaintiffs 3, 5, 6, 7, 11, 14, 16, 17, 18 and 20. Plaintiffs 3, 5 and 6 died during pendency of the appeal. I.A.No.6 of 2021 is filed to condone delay of 2101 days in filing application to set aside the order of abatement for not bring the legal representatives of the deceased 6th appellant. I.A.No.7 of 2021 is filed to set aside the order of abatement caused due to the death of the 6th appellant. I.A.No.8 of 2021 is filed to bring on record the legal representatives of deceased 6th appellant, as respondent nos.18 to 20.
(b) Though there are 17 respondents, out of whom respondent nos.1, 3, 4, 8, 12 and 16 died, the relief in I.A.No.2 of 2021 is sought against only respondent No.5.2
(c) The appellant no.2 who is the plaintiff No.5 in O.S.No.154 of 1998 has sworn to the affidavit filed in support of I.A.No.2 of 2021.
(d) The suit, O.S.No.154 of 1998, was filed for declaration that the plaintiffs got 6/7th share in the suit schedule items 1 to 4 and for recovery of their possession and also for cancellation of the registered sale deed, dated 07.09.1994, and the registered gift deed, dated 07.09.1994, executed by Tadiboina Venkat Ratnam in favour of Tadiboina Jyothirmai, who is the 5th defendant in O.S.No.154 of 1998 and 5th respondent in the appeal. The suit was dismissed by common judgment and decree dated 23.12.2009. O.S.No.154 of 1998 was decided along with O.S.No.122 of 2001 (old no.95 of 1998), which was tried with it by recording common evidence.
4. The case of the petitioners, in brief, is as follows:
(a) Even before arguments were heard in the aforesaid suits, Tadiboyina Chiranjeevi Seetharamanjaneyulu, who is the plaintiff in O.S.No.122 of 2001 died. But, his legal representatives were not brought on record by the date of pronouncement of judgment on 23.12.2009. The plaintiffs, who are appellants in A.S.No.263 of 2010 filed against the decree and judgment passed in O.S.No.122 of 2001, took a plea that the judgment and decree passed in favour of a dead person is null and void and unenforceable in law. Item no.2 of the schedule property in O.S.No.154 of 1998 admeasuring 111 square yards comprising of Madras terraced house bearing D.No.7-19/1, in T.S.No.80 of Tenali Town and item nos.3 & 4, which are two shops admeasuring 23.3 square yards and 14 square yards respectively with D.No.7-11-10 of T.S.No.80 of Tenali Town are situated adjacent to one another. The road known as Gopal Reddy street is situated towards East of items 3 & 4. To the West side of these shops, item No.2 is situated. Akkalavari Street is on the Northern side of items 2 to 4.
Thus, properties in items 2 to 4, totally admeasuring 148 square yards, have become very valuable being situated abutting two main roads in a commercial 3 locality of Tenali Town. The 5th respondent has been receiving rents from items 3 & 4 all along.
(b) Taking advantage of the fact that some of the appellants have become aged and some of them having passed away during the pendency of the appeals, the 5th respondent, with the assistance of her children, associates and followers got items 3 & 4 shops vacated about two months back and has been making serious efforts to alienate items 2 to 4 to bring third parties into the lis. She is also contemplating to demolish the Madras terraced house in item no.2 and items 3 & 4 to construct a new building in the entire premises admeasuring 148 square yards. Her acts would result in irreparable loss and damage to the appellants in case the appeals are allowed unless interim injunction is granted. It would also avoid multiplicity of proceedings and safeguard interests of both the parties pending the appeal.
5. The 5th respondent filed counter affidavit. The averments of the counter, in brief, are as follows:
The legal representatives of the plaintiff in O.S.No.122 of 2001 were brought on record, vide orders dated 07.02.2009 in I.A.No.5 of 2009 in O.S.No.122 of 2001, which became final as no appeal was filed. Item no.2 of the plaint schedule property in O.S.No.154 of 1998 is same as item no.1 of the plaint schedule property in O.S.No.122 of 2001. The suit in O.S.No.122 of 2001 was decreed in favour of the husband of the 5th respondent, vide common judgment dated 23.12.2009. The suit in O.S.No.154 of 1998 in respect of all items of the plaint schedule property was dismissed. The 5th respondent got item Nos.3 & 4 of the plaint schedule property under registered sale deed and gift deeds dated 07.09.1994. After dismissal of the suit, she had executed a registered gift deed dated 19.07.2017 in respect of the property covered by items 3 & 4 of the plaint schedule property in O.S.No.154 of 1998 in favour of his son. Likewise, she had also executed a registered gift deed dated 4 01.09.2020 in respect of property of an extent of 27.65 square yards, being her undivided 1/4th share, in favour of her son. In pursuance of the gift deeds, her son obtained permission for demolition of the old building and for construction in Tenali Municipality vide orders dated 24.08.2021. He obtained mortgage loan of Rs.20 lakhs on 01.09.2021 from Chaitanya Godavari Grameena Bank, Guntur, for the said purpose and started demolition of the old building. While so, on 10.11.2021, the 2nd appellant tried to stall the work with the help of police. The appeals were filed in the year 2010 and all these years, the petitioners kept quiet without proceeding with the matters. The petitioners have no manner of right, title or possession over item nos.1 to 4 of the plaint schedule property in O.S.No.154 of 1998. This Court granted injunction on 15.11.2021 before which time, the 5th respondent had executed registered gift deeds. The petitioners, under the guise of injunction orders, are trying to interfere with the construction activity. The appeals were not filed against the legal representatives of the husband of the 5th respondent though they were brought on record long back in 2009. Hence, the interim injunction order dated 15.11.2021 granted in I.A.No.2 of 2021 be vacated else the 5th respondent will be put to irreparable loss.
6. The main contention of the petitioners is that the 5th respondent is going to alienate the property and alter the nature of the property by demolishing and reconstructing the structures in item nos.2 to 4 of the schedule property. The contesting respondent, i.e., the 5th respondent does not dispute the fact of the proposal for changing the nature of the property by demolishing and reconstruction of the existing structures. Further, it is contended that respondent No.5 has already alienated the properties by way of gift to her son under two registered gift deeds in the year 2017 itself and further that her son has obtained loan of about Rs.20 lakhs from the Bank for the purpose of raising new constructions. Thus, from the admitted facts, it is clear that the apprehension of the petitioners is well founded. However, for granting the 5 relief of interim injunction, the petitioners shall show existence of prima facie case, balance of convenience and irreparable loss.
7. Insofar as prima facie case is concerned, no statement is made in the affidavit supporting the petition. But the grounds of appeal would show how the judgment and decree impugned are questioned on merits. Any observations of this Court on the merits of the rival contentions would be premature at this stage. What is to be seen is the existence of dispute which requires to be decided and such prima facie case exists in this case as the appellants say that the respondents have not proved the Will under which the respondent no.2 is claiming title and rights over the suit schedule property and that the burden of proof heavily casts upon the party to prove the Will in accordance with the provisions of the Evidence Act.
8. The learned counsel for the 5th respondent placed reliance on the decision of this Court in Hari Vasudeva Sarma v. Hari Naga Sri Venkata Krishna Murthy1, wherein the interim injunction was refused holding that there is no prima facie case since extent of property sold by father/karta of joint family is less than the share which the father is entitled. This decision does not help as the context in which the injunction was refused is different.
9. Moreover, mere existence of a prima facie case does not entitle the petitioners to get the relief of interim injunction. Insofar as balance of convenience is concerned, the petitioners must be able to demonstrate that the petitioners would be put to more hardship by refusing the relief of injunction than the hardship likely to be caused to the respondent by granting the relief against the respondents.
10. In the present case, the property has already been alienated by way of gift. Therefore, there is no justification for the petitioners in asking the relief against the 5th respondent not to alienate the disputed properties. But 1 2008 (1) ALD 452 6 I.A.No.9 of 2021 has been filed to implead him in the appeal as well as all pending interlocutory applications. If he is added now to this petition the interim order cannot automatically extend against him as a party to the petition. He must also be given opportunity of hearing. Thus, it is as much equal as filing a fresh petition against him and moreover pleadings in petition also need to be amended to make pleadings specifically as against him which are not asked so far.
11. Insofar as changing the nature of the property in dispute is concerned, it is not the 5th respondent, who is making changes but the alienee is proposing to make the changes. So far the alienee is not a party to this petition. However, as the relief is claimed not just against the 5th respondent, her supporters etc., whether the relief sought binds the alienee, who is the son of the 5th respondent as well, because the alienation is made pending the lis and to his knowledge of the pendency of the lis, is another aspect and the same is not a matter argued.
12. It is to be seen whether refusal to grant of the relief of interim injunction would cause hardship to the petitioners. In this regard, it is submitted by the petitioners that if the property is constructed by raising loan from a bank, even if the petitioners win the appeal and the loan is not discharged by the respondents, the bank would sell the property to realize the loan and thereby, there will be hardship to the petitioners. From the statement on record, in the absence of any evidence, it is not known whether the loan is sanctioned or disbursed or whether the suit property is the security to the loan or some other property was given as security for raising such loan. Further, it is not known whether the bank was put to notice of the pendency of the litigation. Since the loan was recently secured, whereas the lis is pending for about three decades, the rights of the bank to proceed against these properties are also circumscribed by many other aspects. Under these 7 circumstances, any construction made pending the lis is subject to the outcome of the result in the appeal and the interests of the petitioners is in a way protected in that regard.
13. Regarding the aspect of irreparable loss, the learned counsel for the petitioners placed reliance on the decision of the Supreme Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass2, wherein at paragraph no.10, it was observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. It was further observed that in the said case, no such case of irreparable loss is made out except contending that the legal proceedings were likely to take a long time, therefore, the respondent should not be permitted to put the scheduled property to better use and in those circumstances, the lower appellate Court and the High Courts were not justified in permitting the respondent to change the nature of the property, even on conditions. The Supreme Court restored the interim injunction granted by the trial Court.
14. Learned counsel for the 5th respondent further placed reliance on the decision of a Division Bench of this Court in D.S. Rao v. G. Audemma3, wherein this Court observed that the plaintiffs are not entitled to interim injunction since the person who kept quiet for long time and allowed others to deal with the property exclusively would not be entitled to an order of injunction and that the Court should not interfere only because the property is a very valuable one. It was also observed that in dealing with such matters of grant or refusal of injunction, the Court must make all endeavours to protect the interest of the parties by balancing the conveniences and inconveniences, particularly as 2 (2004) 8 Supreme Court Cases 488 3 2020 (1) ALD 368 (AP) (DB) 8 temporary injunction is an equitable relief which will be granted when a plaintiff's conduct is free from blame and approaches the Court with clean hands. The Division Bench refused to grant interim injunction against the 11th defendant from making constructions pending suit, in the context of the fact that he obtained an order of temporary injunction in a suit filed by him against the plaintiffs and appeal filed by them against such order was pending and further the Municipal Corporation granted permission to 11th defendant despite objections raised by the plaintiffs. Further the Division Bench observed that the Court below was in error in directing the 11th defendant to give an undertaking not to make constructions and not to change physical features of the suit till disposal of suit. Drawing analogy from the decision, learned counsel submitted that the present petition has been filed at a belated stage after prolonged litigation.
15. In answer to the contention of the learned counsel for the respondents, learned counsel for the petitioners rightly submitted that since changes have been proposed recently and immediately after coming to know about such attempts, the petitioners were prompted in approaching this Court without any further delay and thus the said decision has no application to the present case. Therefore, on this count, the petition cannot be opposed.
16. In no two cases, facts would be identical. The decisions relied by both parties would guide this Court in taking decision appropriate to the facts and circumstances in the present case.
17. So far, it is only respondent No.5 who is exercising control over the property as can be seen from the averments of the petitioners that respondent No.5 has been receiving rents of item Nos.3 and 4 all along. Son of respondent No.5, though not a party directly in the lis so far, he was acting by virtue of rights of his mother who is party to the lis and against whom the 9 present reliefs are sought. So, he is not altogether unconnected or stranger to the lis.
18. As the proceedings implead him would take some more time to culminate the procedures, and meanwhile if the nature of the property is changed, it would further complicate the issues. At the same time, respondent No.5 or her alienee cannot be indefinitely be restrained by an interim order since some other interlocutory applications are pending and time likely to take for final disposal of the appeal can not be assessed for the present.
19. Further, there is no evidence on record or submission made during oral arguments about the exact current status of the properties viz., whether demolition is about to be or just commenced or completed or new construction has commenced etc.
20. Under all these circumstances, it is appropriate to grant interim injunction.
21. In the result, the petition is allowed granting interim injunction against the 5th respondent, her supporters and associates from changing the nature or physical features including alienation of item Nos.2 to 4 of the schedule property in O.S.No.154 of 1998 on the file of XI Addl. District and Sessions Judge (FTC), Guntur at Tenali for a period of three months from the date of this order or until disposal of appeal whichever is earlier.
_________________ B.S.BHANUMATHI, J 16th February, 2022 RAR/PNV 10 THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI I.A.Nos.2 of 2021 In A.S.No.915 of 2010 DATED : 16-02-2022