Telangana High Court
Basa Jagadishwar Rao vs Basa Rajeshwar Rao on 2 November, 2020
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
CIVIL MISCELLANEOUS APPEAL NO.241 OF 2020
J U D G M E N T:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is filed challenging the order dt.19.02.2020 in I.A.No.192 of 2019 in O.S.No.9 of 2019 passed by the II Additional District Judge, Karimnagar at Jagtial.
2. The appellant herein is the plaintiff in the said suit.
3. He filed the said suit against the respondents for partition of the suit schedule property and for delivery of 1/4th share therein to him. The suit schedule property consists of urban vacant land of an extent of 2964.50 sq.yds., in Sy.No.1210 within the municipal limits of Korutla municipality, Jagtial District.
4. The respondents are none other than the appellant's two brothers and his sister. They are children of one B.Bhumaiah and Laxmi Bai. The said Bhumaiah had allegedly inherited the property from his father Rajaiah.
The case of the appellant
5. It is the contention of the appellant in the plaint that the property had been purchased with the funds of joint family by Rajaiah MSR,J & TA,J ::2:: cma_241_2020 along with other properties and on his death, Bhumaiah inherited the same; and on the death of Bhumaiah, all the children of Bhumaiah succeeded to the suit schedule property.
6. According to the appellant, there is a RCC double floored building in the suit schedule property with a plinth area of 327½ sq.yds., in which the appellant had invested Rs.5,00,000/- and a hospital is being run therein. He contended that he came to know that the 2nd defendant colluded with other defendants and created a forged document showing that the 2nd defendant is the exclusive owner of the property and put up the property for sale; thereupon he issued a legal notice dt.25.03.2019 to the 2nd defendant; and therefore, he is entitled to sue for partition as there was no response from the 2nd defendant. I.A.No.192 of 2019
7. Along with the suit, the appellant filed I.A.No.192 of 2019 under Order XXXIX Rules 1 and 2 CPC for an ad interim injunction restraining the respondents from alienating or selling the suit schedule property pending disposal of the suit. He reiterated the contents of the plaint in the said Interlocutory Petition.
The stand of the 2nd defendant in the said IA
8. Counter affidavit was filed by the 2nd defendant in the suit/1st respondent in IA No.192 of 2019 herein opposing grant of relief to the appellant.
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9. While admitting the relationship between the parties, he however denied that the parties were enjoying the joint family properties left by Bhumaiah or Rajaiah. It was denied that the appellant and the respondents constituted a joint Hindu family.
10. He contended that he is the exclusive owner and possessor of the suit schedule property by virtue of a registered Will dt.05.03.1992 (Ex.R1) executed by his father Bhumaiah and his mother Laxmi Bai. He denied that under the influence of other respondents, he had put the suit schedule property for sale and that the appellant is entitled to a share therein. He also denied that he created any false documents or forged any document conferring exclusive rights therein on himself. He also denied that the appellant was in joint and constructive possession of the suit schedule property.
11. The 2nd defendant/1st respondent contended that under the terms of the registered Will dt.05.03.1992 (Ex.R1):
(i) the 1st defendant in the suit/2nd respondent in the IA was given half of the southern portion of H.No.192/B with ground floor and first floor situated at Telipada, Padma Nagar, Bhiwandi, Thane District, a portion of open place of H.No.1-4-68/A, Plot No.3, of an area of 580 sq.yds., at Korutla Village and a plot situated at western and northern sides of H.No.1-1-92 of Alle Ashok Kumar constructed up to basement level in an area of 40½ sq.yds., at Korutla Village;
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(ii) that he ( the 2nd defendant) was given under the said Will ground floor and first floor house with open place bearing H.No.1-4-66/A and 1-4-66/A-1 of a plinth area of 327 ½ sq.yds., and open area of 2637 sq.yds., totaling to 2964 ½ sq.yds., at Korutla Village (the suit schedule property) and a portion of open place bearing H.No.1-4-68/A (Plot No.2), of an area of 575 sq.yds., at Korutla Village and a old house with H.No.3-6-73;
(iii) the appellant/plaintiff was given under the said Will half of northern portion of H.No.192/B with ground floor and first floor situated at Telipada, Padma Nagar, Bhiwandi, Thane District, a portion of open place bearing H.No.1-4-68/A (Plot No.1) of an area of 551 sq.yds., at Korutla Village apart from the plot constructed up to basement level with pillars situated at eastern side of H.No.3-6-3 and on the southern side of H.No.3-6-2 of an extent of 50 sq.yds., at Aylapuram Darwaja, M.G.Road, Korutla Village.
He also pointed out that the above property which was given to the plaintiff/appellant had been sold away by the plaintiff under registered sale deed Document No.492/2003 dt.22.04.2003.
(iv) According to the 2nd defendant/1st respondent, the land in an extent of Ac.0.03 gts., at Maddula Cheruvu, Korutla Village had been given to the 3rd defendant.
12. He alleged that all these properties were being enjoyed by the respective parties after the death of the executants of the Will.
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13. According to him, these facts had been suppressed by the appellant and the appellant had also obtained valuable properties at Mumbai. He alleged that the relief of injunction being an equitable remedy the appellant ought not to have been granted any interim relief as he did not approach the Court with clean hands and suppressed the facts.
The order of the trial court in IA No.192 of 2019
14. Initially, the Court below granted a status quo order on 03.09.2019 in I.A.No.192 of 2019.
15. In I.A.No.192 of 2019, the appellant marked Exs.P1 to P25 while the respondents marked Exs.R1 to R34.
16. By order dt.19.02.2020, the Court below dismissed I.A.No.192 of 2019 and vacated the status quo order granted by it on 03.09.2019.
17. After considering the contentions of both the parties, it referred to Exs.R.14 to R.16 and Exs.R.22 to R.27 which were mutation proceedings of the Commissioner, Korutla Municipality mutating the names of the appellant and respondent nos.1 and 2 / defendant nos.2 and 1 and noted that in the said proceedings Ex.R.1 - Registered Will dt.05.03.1992 was mentioned; that one of the items of property given to the appellant under the Will Ex.R.1 had been sold away by the appellant under Ex.R.2 - registered Sale Deed dt.22.04.2003, i.e., premises of extent 39.75 Sq.yds. at House No.3-6-7 which was suppressed by the plaintiff; Ex.R.3 Tax Assessment receipt, Ex.R.4 MSR,J & TA,J ::6:: cma_241_2020 Municipal Tax Assessment of the House No.3-6-7 showed that the name of the appellant was recorded as owner thereof in the Assessment Year 2000-01, while Exs.R.5 and R.6 Municipal Assessments for the years 2002-03 and 2011-12 were in the name of the purchaser of the said property by name Chandraiah; and all these documents showed that the appellant and respondents are in exclusive possession and enjoyment of their respective properties as per allotment made in the Ex.R.1 - registered Will Deed executed by their parents.
18. It then held that the appellant had suppressed the material facts and approached the Court with unclean hands. It observed that none of the documents relied upon by the appellant established the joint possession claimed by him over the suit schedule property.
19. It observed that if the status quo order granted in favour of the appellant is continued, then irreparable loss or damage would be caused to the 1st respondent / 2nd defendant.
20. It therefore dismissed I.AN.o.192 of 2019 and vacated the status quo order granted by it on 03.09.2019.
The present Civil Miscellaneous Appeal :
21. Challenging the order dt.19.02.2020 in I.A.No.192 of 2019 in O.S.No.9 of 2019, the present C.M.A. is filed by the appellant.
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22. It is the contention of the appellant that since he had filed a comprehensive suit for partition and relationship between the parties is not in dispute and since the property is ancestral joint family property, the Court below ought to have allowed I.A. No.192 of 2019; and that it erred in vacating the order of status quo on the ground that balance of convenience is in favour of 1st respondent and on the ground that the appellant was not able to establish joint possession. It is his contention that in a suit for partition, nature of possession is not the criteria and that the question whether the suit schedule property is joint family property or is exclusive property of the 1st respondent is to be decided after trial.
23. The counsel for respondent no.1 refuted the said contentions and supported the order passed by the Trial Court. The consideration by the Court:
24. We have noted the submissions of both sides.
25. From the facts narrated above, it is clear that the appellant is asserting that the plaint schedule property is joint family property of himself and the other respondents, but the respondent no.1 is disputing the said fact and contending that the plaint schedule property had been allotted to him under a registered Will Deed Ex.R.1 dt.05.03.1992 executed by the parents of all the parties, that it is not joint family property and the appellant is also not in joint possession of the same.
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26. It is no doubt true that the question whether the plaint schedule property is joint family property or the exclusive property of 2nd defendant / respondent no.1 is a matter to be gone into in the suit.
27. But, prima facie, it was open for the trial court to consider the evidence adduced before it in I.A.No.192 of 2019 and give a tentative finding on the said aspect.
28. In this connection, after considering the material on record, it opined that the properties allotted to the respective parties under the registered Will Ex.R.1 dt.05.03.1992 are shown to have been mutated in the names of the respective parties indicating their exclusive enjoyment of the same.
29. We agree with the finding of the Trial Court that Ex.R.14 to R.16, R.22 to R.27 which is mutation proceedings of the Commissioner, Korutla Municipality indicate mutation of the names of the appellant and respondent nos.1 and 2 after referring to Ex.R.1 - registered Will dt.05.03.1992.
30. Exs.R.20, 21 are Tax Assessments of the House No.1-4-345, 4- 1-998 of 2nd respondent covered by Exs.R.24 and R.27, whereas Ex.R.22 and 25 are the Tax Assessments of House No.1-4-346 of 1st respondent and Exs.R.23 and R.26 are the Tax Assessments of House bearing No.1-4-337 of the appellant.
31. None of the above documents were denied by the appellant.
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32. More particularly, Ex.R.2 is a registered Sale Deed dt.22.04.2003 executed by the appellant of an extent of 39.75 Sq.Yds. and house no.3-6-7 in favour of one Chandraiah; Ex.R.3 and R.4 are the Tax Assessments for the said property in the name of the appellant for the Assessment Year 2000-01 while Exs.R.5 and R.6 are the Tax Assessments for the same property for the years 2002-03 and 2011-12 in favour of the purchaser R. Chandraiah.
33. If all properties are joint family properties as is contended by the appellant, the appellant alone could not have sold this property which was also covered by Ex.R.1 - registered Will dt.05.03.1992 in favour of R. Chandraiah.
34. No explanation is offered by the appellant why he suppressed this transaction which relates to one of the items allotted to him under Ex.R.1.
35. We agree with the finding of the Trial Court that the evidence on record shows that the properties covered by Ex.R.1 - registered Will were being separately enjoyed by the parties and the appellant was not in joint possession of the plaint schedule property which was prima facie in the exclusive possession and enjoyment of the 1st respondent; and that the appellant was guilty of suppression of facts which would disentitle him to the equitable relief of temporary injunction pending suit.
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36. Accordingly, we find no merit in the Civil Miscellaneous Appeal. It is accordingly dismissed. No costs.
37. It is made clear that the findings / observations made herein shall not be taken into account by the Court below while deciding the suit and the suit shall be decided uninfluenced by the same.
38. As a sequel, miscellaneous petitions pending if any in this Civil Miscellaneous Appeal, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.AMARNATH GOUD, J Date: 02-11-2020 Svv/Ndr