Telangana High Court
Penthala Aruna vs Kudikala Swamy on 11 March, 2022
THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CMA No.121 of of 2018
JUDGMENT:
1. This Civil Miscellaneous Appeal is filed assailing the order dated 29.01.2018 in IA No.1105 of 2016 in OS No.162 of 2016 on the file of the II Additional District Judge at Warangal.
2. This IA No.1105 of 2016 was filed under Order-39, Rules-1 & 2 read with Section 151 of the Civil Procedure Code, 1908 (for short 'CPC') by the petitioner/plaintiff against the respondent/defendant. Feeling aggrieved by the dismissal of said application, the plaintiff has filed this Civil Revision Petition.
3. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit.
4. The plaintiff has filed the original suit for declaration of title and cancellation of judgment and decree in OS No.7 of 2006 on the file of the Principal Senior Civil Judge, Warangal and for perpetual injunction against the Page 2 of 14 AVRJ CMA No.121 of 2018 defendant. Along with the original suit, the above IA is filed for temporary injunction against the defendant and his men from interfering with the possession of the plaintiff over the plaint schedule property - land admeasuring 1325 square yards in Survey No.197/part, a house plot situated at Enumamula Village, Hanamkonda Mandal, Warangal District.
5. i) The main averments of the affidavit filed in support of the application are that the plaintiff is in exclusive possession and enjoyment of the suit property. She let out the same to M/s. M.I.S., a construction company for stocking their cement on monthly rent of Rs.5,000/- per month. She got the suit schedule property levelled through her husband by spending more than Rs.3 lakhs and also got constructed compound wall around the suit land by obtaining permission from the Gram Panchayat, Enumamula village.
ii) It is further stated that the defendant has obtained nominal and collusive decrees against his own son-K. Venkateshwarlu in OS No.7 of 2006 on the file of the Page 3 of 14 AVRJ CMA No.121 of 2018 Principal Senior Civil Judge, Warangal, in respect of the suit property cancelling the registered gift deed document No.3116 of 2000, dated 05.12.2000 executed by him in favour of his son after expiry of six years. The defendant has also filed another suit OS No.1040 of 2012 on the file of the Principal Junior Civil Judge for the relief of mandatory injunction to dismantle the tin shed existing in the suit land against his own son-K. Venkateshwarlu, fraudulently obtained a decree on 26.02.2013, thereafter filed EP No.635 of 2013 for executing the said decree in OS No.1040 of 2012 for eviction of judgment debtor, K. Venkateshwarlu from the suit schedule property. The executing Court has amended the boundaries of suit schedule property in EP No.635 of 2016 and a direction was issued to the plaintiff to dismantle the tin shed and compound wall.
iii) The executing Court even without considering the counter filed by the husband of the plaintiff in EA No.3 of 2016 allowed the said application directing the bailiff to dismantle the tin shed and compound wall and evict the Page 4 of 14 AVRJ CMA No.121 of 2018 judgment debtor who was not in possession of EP schedule property. It is a collusive decree and son of the defendant, who is the judgment debtor, has clearly stated that he is not concerned with the suit property, hence prayed for temporary injunction to protect her possession over the suit schedule property.
6. This application is resisted by the respondent/ defendant before the trial Court by filing a detailed counter. He has obtained decree in OS No.7 of 2006 for cancellation of registered gift deed dated 05.12.2000 and also filed another suit in OS No.1040 of 2012, obtained a mandatory injunction against his son, thereafter, filed Execution Petition and that later his son did not contest the said Execution Petition. During delivery of possession, the plaintiff's husband has created lot of hurdles. The Executing Court after hearing both the parties directed the bailiff to deliver the vacant possession. He has filed OS No. 7 of 2006 for cancellation of registered gift deed executed in favour of his son and that he has also filed a copy of notice sent to the plaintiff's husband asking him not to enter into Page 5 of 14 AVRJ CMA No.121 of 2018 the sale transaction with his son-K. Venkateshwarlu, since the gift deed is not genuine and he is taking steps for cancellation of the same. However, in spite of knowledge, the plaintiff's husband has entered into the sale transaction with defendant's son. Later, the said gift deed is cancelled. As per the orders in EP No.635 of 2013, possession of the suit schedule property is also delivered to the defendant. The suit in the present form is not maintainable and the plaintiff is not entitled for temporary injunction as prayed for.
7. The Court below during enquiry on behalf of the plaintiff got marked Exs.P.1 to P.26 and no documents were exhibited on behalf of the defendant. No oral evidence was adduced on either side. On careful analysis of the facts of the case and on appreciating the material available on record, the Court below has dismissed the said application with an observation that the parties are at liberty to work out their remedies as provided under CPC before the Principal Junior Civil Judge, Warangal in EP No.635 of 2013.
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8. Heard learned counsel for the appellant/plaintiff and respondent/defendant. Perused the material available on record. Detailed submissions have been made by the learned counsel on both sides, which are more or less on pleaded lines. Therefore, it may not be necessary to refer in detail such submissions.
9. The plaintiff has filed original suit for declaration of title and also to declare that the judgment and decree in OS No.7 of 2006 on the file of the Senior Civil Judge, Warangal is collusive and not binding on the plaintiff and for perpetual injunction against the defendant. The suit is filed in respect of suit schedule property house plot admeasuring 1325 square yards of Survey No.197 part of Enumamula village. The plaintiff has purchased the suit property from the daughter-in-law of defendant, being the wife of defendant's son. It appears, the defendant has executed a registered gift deed in favour of his son K. Venkateshwarlu, vide document No.3116 of 2000, dated 05.12.2000. In turn, the said Venkateshwarlu has executed a registered gift deed in respect of the suit Page 7 of 14 AVRJ CMA No.121 of 2018 property in favour of his wife-Padma, who sold the suit schedule property to the plaintiff herein.
10. In the meanwhile, the defendant herein has filed the suit in OS No.7 of 2006 for cancellation of registered gift deed document No.3116 of 2000, dated 06.12.2000 executed by the defendant in favour of his son-K. Venkateshwarlu. That suit in OS No.7 of 2006 was decreed. As stated above, the said K. Venkateshwarlu has executed Ex.P.2-gift deed document No.539 of 2006, dated 04.03.2006 in favour of his wife, who in turn sold the same under Ex.P.1, sale deed dated 1141 of 2006, dated 10.04.2006 in favour of the plaintiff. It appears, the plaintiff has also obtained mutation in respect of the suit schedule property and raised compound wall by obtaining required permissions under Exs.P.4 & P.5 respectively and she has paid construction fee, as per the receipt under Ex.P.7. The plaintiff has filed Exs.P.4 to P.10 documents issued by the Gram Panchayat, Enumamula Village, effecting the mutation, granting permission for construction, resolution of Gram Panchayat, tax paid Page 8 of 14 AVRJ CMA No.121 of 2018 receipt, approved plan, licence fee receipt and trade licence respectively.
13. Though all the above documents are not seriously disputed by the defendant, it is the contention of the defendant that he has issued a notice to the plaintiff's husband before filing the suit in OS No.7 of 2006 stating that his son- K.Venkateshwarlu has fraudulently obtained registered gift deed under Ex.P.3 by deceiving him and advised the plaintiff's husband not to enter into any such sale transaction either with his son or his daughter-in-law. Though the defendant has not filed any such copy of notice, the plaintiff has filed certified copy of plaint in OS No.7 of 2006 as Ex.P.14 and certified copies of judgment and decree in OS No.7 of 2006 as Exs.P.13 and P.14 respectively. The defendant has obtained a decree against his son cancelling the said gift deed document No.3116 of 2000, dated 06.12.2000. Consequently, creating a cloud on the title of the plaintiff under Ex.P.1 in respect of the suit schedule property, since the plaintiff is claiming the suit schedule property only through Ex.P.3, which was Page 9 of 14 AVRJ CMA No.121 of 2018 executed by the defendant in favour of his son, in turn he executed Ex.P.2 in favour of his wife, who in turn executed Ex.P.1 in favour of the plaintiff.
12. Thus, once Ex.P.3 gift deed is cancelled and no appeal is preferred, the judgment and decree dated 06.12.2012 have attained finality. It effects the title of the plaintiff over the suit schedule property through Ex.P.1. The defendant has also filed OS No.1040 of 2012 on the file of the learned Principal Junior Civil Judge, Warangal for mandatory injunction and that suit was decreed, certified copy of plaint in OS No.1040 of 2012 is marked as Ex.P.16 and the decree is marked as Ex.P.17. After obtaining the decree in OS No.1040 of 2012, the defendant has filed EP No.635 of 2013 and obtained possession. The related documents including possession delivery warrant and report of the Field Assistant are filed and marked as Exs.P.18 to P.21.
13. The plaintiff has also filed Exs.P.22 to P.26, which are the affidavit of defendant in EA No.182 of 2015 in EP No.635 of 2013 as Ex.P.22, show cause notice dated Page 10 of 14 AVRJ CMA No.121 of 2018 28.04.2016 issued to plaintiff's husband in EA No.3 of 2016 as Ex.P.23, possession delivery warrant and report of the bailiff as Exs.P.24 and P.25 and copy of counter filed by the plaintiff's husband in EA No.3 of 2016 as Ex.P.26.
14. All the documents, as indicated above, are not helpful to the plaintiff in any way to prima facie establish her exclusive possession as on the date of filing of the suit over the suit schedule property. It appears, the defendant after obtaining decree in OS No.1040 of 2012 filed EP No.635 of 2013 and by due process of law, he has obtained the possession of the suit schedule property. Thereafter, the present suit is filed along with this application in the year 2016. By that time the plaintiff has lost her possession. Accordingly, the learned II Additional District Judge, Warangal has dismissed the application with an observation that the parties are at liberty to work out their remedies as provided under CPC before the Principal Junior Civil Judge, Warangal in EP No.635 of 2013.
15. This application in IA No.1105 of 2016 is filed under Order-39, Rule-1 (C) of CPC for temporary injunction. Page 11 of 14
AVRJ CMA No.121 of 2018 Order-39 of CPC provides that in any suit if it is proved by an 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, 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 and the documents filed along with it by the party. The second principle is that unless the injunction as prayed for is not granted, the plaintiff would be put to irreparable loss and injury before the suit is finally decided.
16. The object of granting temporary injunction is to preserve the matter in status quo till the case is finally decided. The law is well-settled that the grant of interim injunction is an equitable discretionary remedy and in exercise of judicial discretion either in granting or refusing such relief, the Court will look into the following: Page 12 of 14
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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 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 being 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.
17. That being the legal position, let us examine the documents and the averments in the affidavit filed in support of the respective cases. As discussed above, the plaintiff has filed Exs.P.1 to P.26 documents. The Page 13 of 14 AVRJ CMA No.121 of 2018 defendant has not disputed any of these documents. The plaintiff is claiming title and possession over the suit schedule property through Ex.P.1 only. Exs.P.2 and P.3 are the link documents. Ex.P.3 is the gift deed cancelled, as per the judgment and decree in OS NO.7 of 2006. Consequently, the wife of K. Venkateshwarlu in whose favour he has executed Ex.P.2 has no title and she cannot pass any better title or possession in favour of the plaintiff.
18. Though the plaintiff has alleged that she has obtained Gram Panchayat permission, constructed compound wall, paid licence fee etc., as per the Exs.P.4 to P.10, in view of the decree in OS No.7 of 2006 and in OS No.1040 of 2012 and the delivery of possession in EP No.635 of 2013, these documents are not helpful to the plaintiff in any way to prove her prima facie possession over the suit property. The documents Exs.P.3 to P.26 relate to OS No.7of 2006, OS No.1040 of 2012 and EP No.635 of 2013, which remained undisputed.
19. Therefore, viewed from any angle, in the facts and circumstances of the case, the plaintiff has failed to Page 14 of 14 AVRJ CMA No.121 of 2018 establish prima facie case, which is sine qua non, balance of convenience is also not her favour. On the other hand, the defendant having obtained decrees in OS No.7 of 2006 and in OS No.1040 of 2012 obtained possession of suit schedule property by filing EP No.635 of 2013. Hence, the plaintiff is not entitled for temporary injunction as prayed for. Accordingly, I do not find any irregularity or infirmity in the order impugned and it is sustained.
20. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order impugned dated 29.01.2018 in IA No.1105 of 2016 in OS No.162 of 2016 on the file of the II Additional District Judge, Warangal. However, in the circumstances of the case, there shall no order as to costs.
As a sequel, interlocutory applications, if any pending, shall stand closed.
________________________________ A. VENKATESHWARA REDDY, J.
Date: 11.03.2022 Isn