Andhra HC (Pre-Telangana)
Hari Vasudeva Sarma vs Hari Naga Sri Venkata Krishna Murthy And ... on 23 August, 2007
Equivalent citations: 2008(1)ALD452, AIR 2008 (NOC) 206 (A. P.), 2008 AIHC (NOC) 720 (A. P.)
JUDGMENT P.S. Narayana, J.
1. This civil miscellaneous appeal is filed by the appellant/1st respondent/ 1st defendant in I.A. No. 276/2007 in O.S. No. 206/2007 on the file of Principal Senior Civil Judge, Vijayawada. Respondents 1 and 2 are the plaintiffs/petitioners in the said LA. No. 276/2007 in O.S. No. 206/2007 and these minors, represented by their guardian and next friend, the grand father, instituted the said suit for partition and separate possession of their 2/3rd share in the plaint schedule property, for recovery of mesne profits and other appropriate reliefs. The 3rd respondent in the civil miscellaneous appeal is the 2nd respondent/2nd defendant in I.A. No. 276/2007 in O.S. No. 206/2007 aforesaid.
2. The learned Principal Senior Civil Judge, Vijayawada, after framing the Points for consideration at Para-5 discussed the documentary evidence Exs.A-1 to A-6 and Ex.B-1, recorded certain reasons at Para-7 and ultimately allowed the application granting temporary injunction in favour of the respondents 1 and 2 herein/petitioners/ plaintiffs in the said suit till the disposal of the suit and both the parties were directed to bear their own costs. Hence the present civil miscellaneous appeal.
3. Sri V.R. Reddy Kovvuri, the learned Counsel representing the appellant had taken this Court through the respective pleadings of the parties and also the affidavit filed in support of the application before the Principal Senior Civil Judge, Vijayawada and the counters filed by the respective parties and the stand taken by the parties and would maintain that it is an admitted fact that the petition schedule property had been purchased by the appellant for valid consideration under registered sale deed dated 23.10.1991 and from that time onwards, the appellant had been in possession and enjoyment of the property. The Counsel also would point out that unfortunately this portion of the property is just adjacent to the main road, but however the Counsel would maintain that only a portion of the property had been purchased out of the total extent of the property available with the 3rd respondent/2nd defendant in the suit. The learned Counsel also would maintain that the appellant/1st defendant and the 3rd respondent/2nd defendant are brothers and the partition also is not in serious dispute. The learned Counsel also would submit that as can be seen from the material available on record, in the light of the subsequent criminal proceedings, this litigation had been thought of and only with a view to put the appellant into trouble, this suit had been instituted as though the plaintiffs are entitled to the respective shares. The learned Counsel also specifically pointed out that the 3rd respondent herein, the father of respondents 1 and 2, the plaintiffs in the suit, had sold only an extent of 119.6 sq. yards out of 681 1/2 sq. yards which had fallen to his share and even if the stand taken by the plaintiffs needs serious consideration, it is needless to say that as father, the 3rd respondent is entitled to dispose of the l/3rd share which would be far more than the extent which had been already alienated by him and even in this view of the matter, the trial Court could have arrived at a conclusion that no strong prima facie case had been made out by the respondents 1 and 2/petitioners/plaintiffs for obtaining such temporary injunction which they had prayed for. The Counsel also pointed out that the registered sale deed was executed on 23.10.1991 and for sufficiently a long time having kept quiet, in the light of the subsequent events, surprisingly this litigation had been thought of only with a view to see that the 1st defendant/1st respondent/appellant in the present civil miscellaneous appeal, is prevented from proceeding with the proposed constructions. The Counsel also would maintain that even if any improvements are made by the appellant, the same will be subject to the result of the suit. Even otherwise, in the light of the fact that only an extent of 119.6 sq. yards out of 681 1/2 sq. yards had been purchased even by the sale deed dated 23.10.1991, always the parties would be at liberty to work out the equities, if any, even in the event of the respondents 1 and 2/ plaintiffs succeeding in the said suit. Further, the Counsel also pointed out that on a careful reading of the averments made in the plaint or the averments made in the affidavit filed in support of the application, it is clear that no serious allegations as such had been made as against the father and this would go to show that the litigation itself is a speculative one which had been thought of for extraneous reasons and with ulterior motive to harass the appellant.
4. Per contra, Sri P.R. Prasad, the learned Counsel representing the respondents 1 and 2 would maintain that in view of the fact that the relationship between the parties not being in serious controversy and further in view of the fact that the 1st respondent already had taken birth even by the date of the alienation and the 2nd respondent was in womb, as co-parceners, these parties are entitled to their respective shares i.e., l/3rd each, i.e., 2/3rd share in the undivided total extent of the property. The Counsel also would maintain that in the case of undivided co-parceners, each coparcener would be entitled to an interest in each inch of the property unless there is a regular partition and till then if the appellant/ 2nd defendant is permitted to proceed with the constructions, the respondents 1 and 2/ plaintiffs would be put to serious loss. The learned Counsel also would further submit that in the light of the convincing reasons which had been recorded by the learned Principal Senior Civil Judge, Vijayawada, at Para-7 in particular, since the learned Principal Senior Civil Judge, Vijayawada exercised the discretion properly, the same need not be disturbed and at the best the civil miscellaneous appeal may be disposed of with a direction to dispose of the suit at an early date. The Counsel also had brought to the notice of the Court that in the counter filed before the learned Principal Senior Civil Judge, Vijayawada, the appellant/ 1st defendant had taken a specific stand that he was not proceeding with any constructions whatsoever. The learned Counsel also placed reliance on certain decisions to substantiate his submissions.
5. Sri C.V.V. Prasad, the learned Counsel representing the 3rd respondent in the civil miscellaneous appeal/2nd defendant in the suit, the father of the minors, in a way had supported the stand taken both by the appellant and also supported the stand taken by the respondents 1 and 2/plaintiffs.
6. Heard the Counsel and perused the material available on record.
7. In the light of the rival contentions advanced by the Counsel on record, the following Points arise for consideration:
1. Whether the temporary injunction granted by the learned Principal Senior Civil Judge, Vijayawada in I.A. No. 276/2007 in O.S. No. 206/2007 dated 16.4.2007 to be confirmed or to be disturbed or to be modified or to be set aside in the facts and circumstances of the case?
2. If so, to what relief the parties would be entitled to?
8. The parties hereinafter would be referred to as petitioners/plaintiffs and respondents/defendants as shown in O.S. No. 206/2007 on the file of Principal Senior Civil Judge, Vijayawada, for the purpose of convenience.
9. Point No. 1: The petitioners filed the suit against respondents for partition and separate possession of the plaint schedule property and also for recovery of mesne profits on the ground that the plaint schedule property is the ancestral property and the same was partitioned, evidenced through a partition list dated 24.3.1983 after the death of the father of the defendants. It is also stated that according to the said partition list, apart from the other ancestral property, the plaint schedule property fell to the share of the 2nd respondent under a registered sale deed dated 23.10.1991. It is also further stated that there is no necessity to dispose off the said property by the 2nd respondent because both of the defendants and the defendant's eldest brother by name Sri Sreerama Murthy are financially sound and the sale is neither for the benefit of the joint family nor for the benefit of the minors. The 1st respondent is aware that the 2nd respondent is having issues who are the petitioners and they are having l/3rd share each in the plaint schedule property. The share of the petitioners cannot be sold by the 2nd respondent and the 1st respondent should not have purchased the same. It is also stated that the 1st respondent filed a suit in O.S. No. 18/2002 on the file of II Additional District Judge, Krishna at Vijayawada against the 2nd respondent and their elder brother which was subsequently withdrawn by the 1st respondent on 28.11.2006 and later the guardian and the next friend of the petitioners came to know that the 1st respondent illegally and unlawfully purchased the 2/3rd share of the petitioners and got the above said registered sale deed. The said sale deed is not valid and the guardian of the petitioners had put up the matter before the mediators. The mediators advised the respondents to deposit the value of the petitioners' share in the Court after obtaining permission, but the 1st respondent refused to accept the said proposal. The 1st respondent had let out two shop rooms which form part of the plaint schedule property to number of tenants who include Chinni Venkata Ramesh Kumar. The 1st respondent collected monthly rent of Rs. 5,000/- to Rs. 6,000/- out of which the plaintiffs are entitled to 2/3rd rent as mesne profits in accordance with the law of limitation. As such the plaintiffs are entitled to recover their shares of rent from the 1st defendant till the time of filing of the suit which will be for prior three years. It is also stated that both the respondents in collusion with each other coming to know about the intended dispute and claim of the plaintiffs are causing waste and damage to the plaint schedule property in order to put the plaintiffs to wrongful loss for which the petitioners claim further damages. The 1st respondent in collusion with the 2nd respondent are going to raise structures by demolishing the existing structure with an intention to change the physical feature of the site and building which was already constructed by the 2nd respondent in 1991 itself. The 1st respondent has no right either to alter the structure or to construct a new structure in the plaint schedule property. Hence the petitioners got issued a notice on 16.2.2007 demanding to divide the property and handover the vacant possession of 2/ 3rd share to the petitioners both in the structures and site from out of the plaint schedule property with all easements and also pay Rs. 4,000/- per month towards the two shares out of three shares belonging to the plaintiffs towards rents collected by the 1st respondent with interest at 24% per annum from the respective months from three years prior to the filing of the suit as mesne profits and further the 1st respondent is demanded not to alter the existing structure or raise new structure, but he is making hasty efforts to make constructions and they sent a reply with false allegations. The respondents are not entitled to and also make new constructions and therefore they may be restrained by means of temporary injunction not to make new constructions till disposal of the suit.
10. The 1st respondent resisted the same with the following averments. It is stated that the petitioners have no right to claim the plaint schedule property as prayed for and the application is not maintainable. A further stand was taken that the plaint schedule property is not ancestral property and it is the self-acquired property of the father of the respondents by name H.V.K. Murthy who died intestate in the year 1983 and after his death the plaint schedule property fell to the share of the 2nd respondent. The 1st respondent purchased 119.6 sq. yards out of 681 1/2 sq yards from the 2nd respondent under a registered sale deed. The 2nd respondent and his two more brothers and their mother got registered in favour of the 1st respondent. The 2nd respondent received the sale consideration and executed the sale deed. The 2nd respondent purchased in the same premises with the sale proceeds from his elder brother Hari Sree Ramamurthy for a valid consideration. At the time of partitioning of their father's self acquired property there were no issues to the respondents 1 and 2 and in fact their marriages also had not taken place by the time of partition in the year 1983. Further, there is no authentic date of birth certificates of minors by the guardian. The suit is not within time and is barred by limitation. The petitioners 1 and 2 and their father-2nd respondent are well aware about the purchase by the 1st respondent in the year 1983 under registered sale deed and he had been residing in the plaint schedule property since more than 15 years. The petitioners, their guardian and the 2nd respondent are residing in the same premises and they are aware of the said sale transaction. Since the date of partition, nobody challenged the partition. As per Law, the partition dated 24.3.1983 is true, correct and valid. Since the date of partition the executants are in peaceful possession and enjoyment of their respective shares allotted to them. The elders of the petitioners are behind their back and playing foul game with ulterior motive to grab the amount and with an intention to make a wrongful loss to the 1st respondent. The property inherited by the sons of late H.V.K. Murthy which was partitioned among them by way of partition list dated 24.3.1983 is admitted by the petitioners and therefore the property to be treated as their separate property devolved to the share of the executants and therefore the petitioners born to the 2nd respondent are not entitled to ask share by birth in the plaint schedule property. The 1st respondent filed I.A. No. 144/2007 in I.A. No. 291/2007 in O.S. No. 266/2007 on the file of III Additional Junior Civil Judge, Vijayawada for injunction and for other reliefs. The 2nd respondent filed another case against the 1st respondent in I.A. No. 190/2007 in O.S. No. 378/2007 on the file of the same Court and in both the I.As., orders had been reserved. Therefore, the petition is not maintainable and there is no question of collusion with the 2nd respondent. It is also further stated that the 1st respondent filed suit O.S. No. 18/2002 on the file of II Additional District and Sessions Judge, Vijayawada to compensate the loss caused to his the share as per partition dated 24.3.1983 due to road widening. During the pendency of the said suit, the 2nd respondent and their brother Hari Srirama Murthy came to settlement to give 9 Sq. Yards side road widening from the existing site and also agreed to pay Rs. 1,75,000/- each, in total Rs. 3,50,000/- to the 1st respondent. The 1st respondent bona fide believed the 2nd respondent and his brother Hari Srirama Murthy to withdraw the suit by way of filing the memo, but contrary to the above settlement the 2nd respondent and his brother failed to prove the funds and the two said cheques of Rs. 1,75,000/- each which were dishonoured by endorsement and memo "Stop payment by the Drawer". Therefore the 1st respondent filed two separate criminal cases under Section 138 of Negotiable Instruments Act against the 2nd respondent and the 2nd respondent is the man behind the curtain. There is no prima facie case and balance of convenience in favour of the petitioner and the petition is liable to be dismissed.
The 2nd respondent, father of the petitioners/plaintiffs filed a counter with the following averments : It is stated that it is true that the plaint schedule property is the ancestral property which was partitioned among and by the defendants and their brothers, evidencing their previous partition through partition list dated 24.3.1983 after the death of the defendant's father. According to the said partition list, apart from other ancestral properties, the plaint schedule property fell to the share of the 2nd respondent/defendant. The plaint schedule property was purchased by the 1st respondent/defendant from the 2nd respondent/defendant and to that effect a sale deed dated 23.10.1991 had been executed. The 1st respondent filed O.S. No. 18/2002 on the file of II Additional District Judge against the 2nd respondent and their eldest brother which was subsequently withdrawn by the 1st defendant on 28.11.2006. The 2nd respondent is not having possession of the plaint schedule property and the 2nd respondent is no way concerned with the constructions, alterations or any structures in the plaint schedule property. The 1st respondent filed suit O.S. No. 266/2007 on the file of III Additional Junior Civil Judge against the 2nd respondent for permanent injunction restraining the 2nd respondent from ever interfering with the constructions in the plaint schedule property and I.A. No.l44/2007is filed for interim injunction which is pending. The 2nd respondent filed a suit O.S. No. 378/2007 on the file of III Additional Junior Civil Judge against the 1st respondent and the same is also pending. Therefore the 2nd respondent has nothing to do with the suit schedule property.
11. In the light of the specific stands taken by the respective parties, the petitioners and the respondents 1 and 2, the learned Principal Senior Civil Judge, Vijayawada, having marked Exs.A-1 to A-6 and Ex.B-1, appreciated the oral and documentary evidence available on record and came to the conclusion that since the 2nd respondent/ father cannot sell the entire plaint schedule property to the 1st respondent, the present appellant, and since such alienation is not valid and though the petitioners/plaintiffs were not born to the 2nd respondent/2nd defendant on the date of partition, but they were born on the date of alienation made by him, in the said circumstances the petitioners/plaintiffs are able to establish that they have got share in the plaint schedule property and the 2nd respondent has no right to alienate their shares to the 1st respondent and accordingly came to the conclusion that the petitioners/plaintiffs had made out a prima facie case and if the demolition of the present construction is permitted to be made, it would be detrimental to the interest of the petitioners/plaintiffs and accordingly allowed the application granting temporary injunction.
12. Ex. A.1 is a certified copy of the registered sale deed executed by the 2nd defendant in favour of the 1st defendant. Ex. B.1 also is a certified copy of the sale deed dated 23.10.1991. Ex. A.2 is a certified copy of the lease deed executed in favour of a tenant by the 1st defendant dated 7.2.2000. Ex. A.3 is a certified copy of the legal notice. Ex. A.4 and Ex. A.5 are the postal acknowledgements. Ex. A.6 is the reply notice issued by the 1st defendant dated 23.2.2007. Several of the facts are not in serious controversy between the parties. The fact that the respective properties had fallen to the respective shares, is not in serious controversy. The fact that a portion of the property which had fallen to the share of the 2nd respondent/2nd defendant had been alienated by virtue of a registered sale deed in favour of the appellant/1st respondent/1st defendant also is not in serious controversy. It is also pertinent to note that as can be seen from the specific stand taken by the parties, only an extent of 119.6 sq. yards out of 681 1/2 sq. yards which had fallen to the share of the 2nd defendant/ 2nd respondent, had been alienated. It is needless to say that even if the said extent already alienated is to be calculated, it would be far below the 1/3rd share to which ultimately the 2nd respondent/2nd defendant may be entitled to. It is no doubt true that in the case of undivided co-parceners, each co-parcener would be entitled to undivided interest in the total extent of the property unless and until the co-parceners divide such property by metes and bounds. The Counsel representing the respondents 1 and 2/plaintiffs placed strong reliance on the decisions of the Apex Court in Prasad v. V. Govindaswamy Mudaliar , Sunil Kumar v. Ram Prakash and Kartar Singh v. Harjinder Singh . The principal contention which had been advanced on the strength of the decisions referred to supra is that in view of the fact that the respondents 1 and 2/ petitioners/plaintiffs being the undivided co-parceners since they are entitled to the respective shares in the plaint schedule property, unless and until the same is divided by metes and bounds, till then in every inch of the undivided property since they would have interest, it would not be just and proper or equitable to permit the appellant/1st respondent/1st defendant to either demolish the existing structures or to raise new constructions. Strong reliance was placed by the learned Counsel for the respondents 1 and 2/ petitioners/plaintiffs on a decision of this Court in Chanumuri Subhaveni and Ors. v. Sappa Srinivasa Rao .
13. There cannot be any doubt whatsoever relating to the rights of the coparceners relating to the undivided co-parcenery property. While deciding an application for temporary injunction restraining the opposite party from changing the physical features or otherwise, the essential ingredients of strong prima facie case, balance of convenience and irreparable loss also may have to be considered. As already referred to supra, the parties are close relatives. It is pertinent to note that one brother, 2nd respondent/2nd defendant, alienated a portion of the property to an extent of 119.6 sq. yards only out of 681 1/2 sq. yards in favour of the appellant/1st respondent/1st defendant, that too, on 23.10.1991. This Court need not express any opinion relating to the dates of birth of the respective children and for the purpose of disposal of the present application it may be taken that these parties are prima facie entitled to the respective shares as claimed by them. It is also pertinent to note that the alienation was made by the father. The rights of the father as manager of the family to make alienations, no doubt, may be subject to certain limitations, but however, the right to make alienation by the father as such cannot be doubted. In the facts and circumstances, the grounds averred in the plaint on which these parties, the minor children, approached the Court by instituting the suit for partition, are not so strong so as to prima facie arrive at the conclusion that the respondents 1 and 2/petitioners/plaintiffs had made out such a prima facie case especially in the light of the general powers of a Hindu father to make alienation. As already specified supra, it is not a case where the father parted with the total extent of the property, but as already stated, only such extent which is far less than the share to which he may be entitled to, even if the facts available on record to be taken as they are, had been alienated. It may be true that the appellant in his anxiety to resist the application might have stated that he is not going to raise any constructions. That itself cannot be taken as if a strong prima facie case is made out by the respondents 1 and 2/petitioners/plaintiffs. It is true that the rights of the minors in relation to the respective shares in the co-parcenery property to be safeguarded. But equally, when there are no serious allegations as such levelled against the father of the minors who made the alienation, then, the facts may have to be carefully examined especially when only a portion of the property had been alienated by the father as kartha or manager of the family. On a careful analysis of the facts, this is a case where the parties slept over the matter for sufficiently a long time. May be they are minors, represented by the grand father, but the litigation was put into action in the light of certain subsequent events or misunderstandings as reflected from the material available on record in the light of the respective stands taken by the parties. This Court is not inclined to express any further opinion since this Court is deciding only an Interlocutory Application and these prima facie findings are recorded only for the limited purpose of appreciating whether any strong prima facie case had been made out by the respondents 1 and 2/petitioners/plaintiffs for entitlement of temporary injunction as prayed for. In the light of the facts and circumstances, this Court is thoroughly satisfied that the temporary injunction granted by the trial Court cannot be sustained.
14. Point No. 2: Accordingly, the order made by the learned Principal Senior Civil Judge, Vijayawada in I.A. No. 276/2007 in O.S. No. 206/2007 is hereby set aside and the civil miscellaneous appeal is allowed. However, it is made clear that if the appellant/1st respondent/1st defendant proceeds with any constructions whatsoever, such constructions would be subject to the result of the suit and further the parties not to claim any equity in the light of such constructions if any made. It is also made clear that the observations if any made by this Court had been made only for the purpose of appreciating, prima facie case while deciding the Interlocutory Application and it is needless to say that such findings not to come in the way of the learned Principal Senior Civil Judge, Vijayawada, while disposing of the suit on its own merits on the strength of the evidence which may be adduced by the parties. No costs.
15. At this stage, Sri Prasad, the learned Counsel representing the plaintiffs made a request for early disposal of the suit. It is stated that the pleadings are complete and in view of the same, let the learned Judge dispose of the suit at an early date, preferably within a period of six months from the date of receipt of this order.