Telangana High Court
Smt.Nunemunthala Saraswathi ... vs Smt. Buyya Susheela on 8 August, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy, N.Tukaramji
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
CIVIL MISCELLANEOUS APPEAL No.396 of 2024
JUDGMENT:(per the Hon'ble Sri Justice P.SAM KOSHY) Heard Sri B.Venkateswara Rao, learned counsel representing Sri M.V.Durga Prasad, learned counsel for the appellants and perused the record.
2. The present Civil Miscellaneous Appeal has been filed under Order XXXXIII Rule 1 of C.P.C., assailing the order dated 13.12.2023 in I.A.No.1395 of 2021 in O.S.No.303 of 2021 passed by the learned VI Additional District Judge, Ranga Reddy District at Kukatpally.
3. The appeal is preferred by the appellants- plaintiffs against vacating of ad interim injunction granted on 18.12.2021 and dismissing I.A.No.1395 of 2021, which was an application filed under Order XXXIX Rules 1 and 2 read with Section 151 of C.P.C. The appellants-plaintiffs have filed a suit in O.S.No.303 of 2021 on the file of learned VI Additional District Judge, Ranga Reddy District at Kukatpally, for partition and separate possession in respect of suit 2 PSK,J&NTR,J CMA_396_2024 schedule property measuring Acs.2-27 guntas in Survey No.169/AA of Kondapur Village, Serilingampally Mandal, Ranga Reddy District.
4. Initially, along with Suit, the appellants-plaintiffs also moved an Interlocutory Application for grant of injunction and the trial Court vide its order dated 18.12.2021 granted ad interim injunction. Subsequently, the respondents-defendants entered appearance and filed their counter and written statement along with vacate stay petition seeking to vacate ad interim injunction granted on 18.12.2021. The trial Court after hearing both sides, while dismissing the application in I.A.No.1395 of 2021 filed under Order XXXIX Rules 1 and 2 CPC filed by the appellants-plaintiffs, vacated ad interim injunction granted on 18.12.2021.
5. The factual matrix of the case is that the appellants-plaintiffs are three daughters born to Sri Buyya Achaiah and they are claiming their share in the ancestral property in Survey No.169 i.e., suit schedule property contending that the entire land, in fact, was inherited by their father Sri B.Achaiah from his ancestors. 3
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6. According to the appellants-plaintiffs, they have an equal share in Ac.2-27 guntas of suit schedule property. However, a perusal of the record would show that the father of the appellants-plaintiffs late B.Achaiah along with respondents-defendant Nos.2 and 3, two sons of B.Achaiah i.e., brothers of the appellants- plaintiffs had sold Ac. 0- 38 guntas of land vide registered Sale Deed that was executed on 11.01.2022 and it was sold to respondent No.4. The said Sale Deed was executed for the land to an extent of Ac.0-38 guntas in the suit schedule property located in Survey No.169. As per Sale Deed, the suit schedule property was clearly identified and it was reflected that Northern portion of land was road, Southern portion of land was neighbours' lands, East portion of land was part of Survey No.169 of Kondapur Village and West portion of land was part of Survey No.169 of Kondapur Village.
7. The contention of respondent No.4 is that he had purchased the property in the year 2002 and entered into a Development Agreement with respondent No.5 and development activities in the suit schedule property began. It is then the appellants-plaintiffs woke up suddenly and filed a suit for partition seeking for ad interim 4 PSK,J&NTR,J CMA_396_2024 injunction in respect of any development activities on the suit schedule properties and also seeking temporary injunction to restraint upon the respondents- defendants from altering or changing the nature of the suit schedule property.
8. Initially ad interim injunction was granted on 18.12.2021, which now stands vacated and I.A. for temporary injunction was dismissed vide impugned order dated 13.12.2023.
9. Learned counsel for the appellants-plaintiffs contended that the Sale Deed executed by their father and two brothers in the year 2002 is without their knowledge. That they have been kept in dark all these years and therefore, the said Sale Deed is one which has been executed by playing fraud upon the appellants-plaintiffs. Further, it was also the contention of appellants-plaintiffs that the respondents- defendants in the guise of having purchased land to an extent of Ac.0-38 guntas in Survey No. 169 being also subsequently purchased land in Survey Nos. 165, 166 and 167 and have now encroached upon certain portion of the suit schedule property beyond Ac. 0-38 guntas that they have purchased from the father of the appellants-plaintiffs and defendant Nos.2 and 3. Respondent 5 PSK,J&NTR,J CMA_396_2024 No.4 is now converting the entire land as contiguous to Survey Nos. 169, 165, 166 and 167, thereby the substantial claim of the appellants-plaintiffs would get adversely effected in the event after respondent No.4 is permitted to develop upon encroached portion of schedule land i.e., Ac.2.27 guntas.
10. Having heard learned counsel for the appellants-plaintiffs that respondent No.4 has purchased Ac. 0-38 guntas of land vide registered Sale Deed also shows executed on 11.01.2002, the registered Sale Deed also shows specific boundaries mentioned in the Sale Deed and there is no claim put forth by the defendants over a portion of the suit schedule property beyond Ac.0-38 guntas of land that he has purchased. The appellants-plaintiffs have admitted that they have no concern whatsoever so far as purchase of land by respondent No.4 As far as in Survey Nos. 165, 166 and 167. As far as the appellants-plaintiffs are concerned, they are only keen to protect their portion of land in Survey No. 169.
11. Having considered the contentions and pleadings put forth by learned counsel for the appellants- plaintiffs, we are of the considered opinion that Ac.0-38 guntas of land, which was sold to 6 PSK,J&NTR,J CMA_396_2024 respondent No.4 vide registered Sale Deed on 11.01.2022 was in fact executed by father of the appellants along with respondent Nos.2 and
3. From the year 2002 i.e., the time when Sale Deed was executed in respect of Ac.0-38 guntas of land to respondent No.4 till 19.03.2020 i.e., the date on which father of the appellants died, there seem to be no grievance raised by the appellants whatsoever in respect of their ancestral property is concerned or seeking for any partition of the said property. It is only after death of their father, in the year 2021 for the first time, the suit for partition has been filed, by which time much water had flown and respondent No.4 had already entered into a Development Agreement with respondent No.5. Respondent No.5 started substantial constructions on the property that they had purchased in the year 2002. All these facts were taken into while consideration by the trial Court while Court vacating the ad interim injunction granted on 18.12.2021 in favour of the appellants- plaintiffs.
12. We are also in agreement with the findings and reasons given by the trial Court so far as vacating of ad interim injunction is concerned.
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13. However, what we feel is that the injunction, which was vacated would be confined only so far as Ac.0-38 guntas of land purchased by the respondent No.4 from the father of the appellants- plaintiffs and defendant Nos.2 and 3 in Survey No. 169. The land to an extent of Ac.0-38 guntas would be that which stand the specifically covered under the registered Sale Deed executed on 11.01.2022. This in other words means that the injunction which was granted by the trial Court in respect of Survey No.169, which is owned and possessed by the family of the appellants-plaintiffs, would be still operative minus that Ac.0-38 guntas of land aforementioned. There can be no interference or an injunction be made operable upon the Ac.0-38 guntas of land purchased by the respondent No.4.
14. As far as that Ac.0-38 guntas of land specified in the sale deed dated 11.01.2022 (Ex.P24) the said property shall not be available for partition. At the same time, the respondent Nos.4 and 5 would be injuncted to the extent of interfering with the remaining portion of the suit schedule property minus Ac.0-38 guntas. The respondent No.4 also would not be permitted to seek for alteration or changing of the nature of suit schedule property except to the extent of Ac.0-38 8 PSK,J&NTR,J CMA_396_2024 guntas purchased by respondent No.4 in Survey No.169. All other contentions raised by appellants-plaintiffs so also the respondents/ defendants are left open to be raised, considered and decided by the Trial Court.
15. Accordingly, the Civil Miscellaneous Appeal is partly allowed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal shall stand closed.
_________________________ JUSTICE P.SAM KOSHY _________________________ JUSTICE N.TUKARAMJI Date: 08.08.2024 YVL