Andhra HC (Pre-Telangana)
Syed Jameel vs K.V.V. Nageshwara Rao And Anr. on 6 February, 2004
Equivalent citations: AIRONLINE 2004 AP 10
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. This C.R.P. is directed against the judgment dated 27-10-2003 passed by the I Additional District Judge, Ranga Reddy District at L.B. Nagar, in C.M.A. No. 14 of 2003, setting aside the order dated 9-12-2002, passed by the Principal Junior Civil Judge, Hyderabad West and South, Ranga Reddy District, in I.A. No. 209 of 2002 in O.S. No. 82 of 2002. The facts of the case in brief may be noted, and they run thus - The 2nd respondent-Allapur Co-operative Housing Society Ltd., was formed with the object buying, selling, holding and developing land for allotment to its members. One Sri. V. Satyanarayana, who was a member of the said society, was allotted a plot bearing No. 21-A, and he purchased the same under Ex. B2-sale deed dated 11-6- 1973 from the society. Subsequently, Sri. Satyanarayana sold the said plot to the 1st respondent under Ex. B1-sale deed dated 10-11-1983. While the matters stood thus, the 2nd respondent on the ground that the original allottee failed to construct house in the allotted plot and kept it vacant for more than 28 years, re-allotted the plot to the petitioner, who joined the society as a member during 1990, purportedly invoking Clause 42(A)(10) of the Bye-laws of the society. The petitioner states than an amount of Rs. 50,000/- was collected from him by the society, and that in the meeting convened on 2-4-2000, that registration of the plot in favour of the petitioner would be done after one year. The petitioner claimed that on the basis of Ex. A3-allotment letter dated 10-12-1999, issued by the society, he constructed a house and is also running a school therein. It is the case of the petitioner that when the 1st respondent tried to interfere with his possession, he filed suit O.S. No. 82 of 2002 on the file of the Principal Junior Civil Judge, Hyderabad West and South, Ranga Reddy District, seeking permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit schedule property, and obtained ad interim injunction in I.A. No. 209 of 2003 on 9-12-2002. Thereagainst, the 1st respondents filed an appeal in C.M.A. No. 14 of 2003 on the file of the I Additional District Judge, Ranga Reddy District, who by his judgment and decree dated 27-10-2003, allowed the appeal setting aside the order of the trial Court. Hence, the petitioner filed this C.R.P.
2. Heard the learned Counsel for the petitioner and the learned Counsel for the 1st respondent.
3. The learned Counsel for the petitioner submitted that as the original allottee had not constructed the house in the plot allotted to him and kept it vacant for more than 28 years, the 2nd respondent passed a resolution on 20-9-1999 to re-allot the said plot to the petitioner and in pursuance of which, the society issued Ex. A3-letter of allotment dated 10-12-1999. Inasmuch as the petitioner as on the date of filing of the suit was in possession of the suit schedule property by constructing a house and running a school therein, which is reflected by Ex.B4-FIR dated 8-2-2000 lodged by the 1st respondent, the appellate Court ought not to have set aside the order passed by the trial Court granting ad interim injunction in favour of the petitioner, and more so when the fundamental principle governing grant of ad interim injunction is prima-facie case and balance of convenience. The learned Counsel submitted that the Court below failed to look into the conditions recited in Ex.B1-sale deed dated 10-11-1983, which the 1st respondent had violated, and therefore, the 2nd respondent cancelled the sale deed and re-allotted the plot to the petitioner. At any rate, he submits that the appellate Court having held that the question whether or not the 2nd respondent can invoke the Bye-laws to cancel the allotment, is a question raising a debate, ought not to have vacated the ad interim injunction granted in favour of the petitioner by the trial Court. The learned Counsel for the petitioner submitted that even assuming the petitioner is not the real owner of the suit property, but as on the date of filing of the suit, he being in possession thereof by constructing a house and running a school therein, cannot be evicted, except by the due process of law. In support of his submission, that a person in possession of a property can claim injunction even against its rightful owner, placed reliance on the judgments in Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. of the apex Court, and the judgments in Karthiyayani Amma v. Govindan and Sarladevi v. Shailesh of the Kerala and Bombay High Courts respectively.
4. On the other hand, the learned Counsel appearing on behalf of the 1st respondent submitted that according to the own admission of the petitioner, he has no sale deed executed by the 2nd respondent in his favour. The claim of the petitioner is merely on the basis of Ex.A3-letter of re-allotment dated 10-12- 1999, which does not confer any title on the petitioner. Inasmuch as the petitioner has purchased the plot from the original allottee, under Ex.B1-sale deed dated 10-11-1983. He assailed the propriety of the 2nd respondent to unilaterally cancel the sale deed. He contended that if the vendor of the 1st respondent had violated the conditions of allotment, the remedy of the 2nd respondent to approach the Arbitrator as per the provisions of the A.P. Co-operative Societies Act, 1964. Even assuming the petitioner is in possession of the suit property, the same being not supported by title, the petitioner cannot seek injunction against the true owner. In support of this submission, he placed strong reliance on the judgment of this Court in K. Ankaiah v. Tirumala Tirupathi Devasthanams . He thus submitted that the appellate Court had rightly set aside the order of the trial Court granting ad interim injunction in favour of the petitioner, and prayed to sustain the impugned order.
5. When the 2nd respondent was formed in 1967, the petitioner was not its member, and he came to become its member only in the year 1990. The plot which the petitioner is claiming to be in possession by virtue of Ex. A3-letter of allotment dated 10-12-1999, was originally allotted to one Sri. Satyanarayana by the 2nd respondent way back in 1973, and the 2nd respondent also executed Ex.B2-sale deed dated 11-6-1973 in favour of the said original allottee. Thereafter, the original allottee sold the plot to the 1st respondent under Ex. B1-sale deed dated 10-11-1983 and since then he became the owner thereof. The claim of the petitioner is merely based on Ex. A3-letter of allotment dated 10-12-1999, which admittedly does not confer any title on him. and as of today, there is no sale deed executed by the 2nd respondent in favour of the petitioner in respect of the allotted plot. Though it is the contention of the petitioner that inasmuch as the original allottee had breached the conditions of Ex. B2-sale deed dated 11-6-1973, in that he had kept the plot vacant for more than 28 years, and in those circumstances, the 2nd respondent had cancelled the allotment and re-allotted to him, an in pursuance thereof he is in possession of the plot by constructing a house and running a school therein, the fact remains no title was transferred in favour of the petitioner by the 2nd respondent. Be that as it may, the question as to whether the 2nd respondent under the Bye-laws is vested with the power to unilaterally cancel the sale deed executed in favour of the original allottee, for alleged breach of the conditions of sale, is a question, which has to be decided in the suit, and more so by the date when such unilateral decision was taken by the 2nd respondent, the plot stood vested in the 1st respondent by virtue of Ex. B1-sale deed dated 10-11-1983. The contention of the petitioner that even assuming that he is not the owner of the property, yet having regard to the fact that he is in possession of the property, he can injunction against the rightful owner thereof, cannot be accepted. As on today, there is no sale deed executed in favour of the petitioner by the 2nd respondent, and his claim is merely based on Ex. A3-letter of allotment dated 10-12-1999 and Ex.A4-FIR, dated 8-2-2000 lodged by the 1st respondent with the police. The letter of allotment admittedly does not confer any title on the petitioner over the suit property. On the other hand, the 1st respondent produced Ex. B1-sale deed dated 10-11-1983 executed by the original allotee in favour of the 1st respondent, to prove his title over the property. In the absence of any document produced by the petitioner conferring title upon him over the suit property, his possession of the suit property is unlawful. The petitioner admittedly made the application seeking ad interim injunction invoking the provisions of Order XXXIX, Rules 1 and 2 CPC, and it is well settled that a person seeking ad interim injunction pending disposal of the suit has to satisfy the Court about his prima facie title or right over the disputed property, possession and balance of convenience. The documents relied upon by the petitioner in support of his claim for ad interim injunction do not prove his prima facie title to the property, and therefore, the appellate Court had rightly set aside the order passed by the trial Court granting ad interim injunction in favour of the petitioner. A learned single Judge of this Court in K. Ankaiah v. Tirumala Tirupathi Devasthanam upon analyzing the provisions of Order XXXIX, Rules 1 and 2 CPC, and relying on the decision of the apex Court in Pratprai N. Kothari v. John Braganza (1999) 4 SCC 403, wherein it was held that "a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner", held thus:
All the decisions relied upon by the learned Counsel for the revision petitioners do not relate to the principles of law applicable for the disposal of a petition filed under Order XXXIX, Rules 1 and 2 CPC. The principles governing grant or refusal of ad interim injunction invoking the provisions of Order XXXIX, Rules 1 and 2 CPC, are well known. Any party seeking interim injunction pending disposal of a civil suit shall satisfy the Court about his prima facie title or right over the disputed property, possession on the date of the suit and the balance of convenience. In the present case the revision petitioners took divergent stands regarding their source of right over the disputed property. They pleaded at one stage that under a document namely, proceedings issued on 6-9-1999 the dispute property was allotted to them as an alternative accommodation. They failed to prove the said source. Another source pleaded by them is oral agreement between them and the TTD. They have not proved this source of title or right. Though plaint was amended to take the plea about oral agreement, the averments in the affidavit filed in support of interim injunction application remain unaltered. The only plea in the affidavit is about proceedings dated 6-9-1993. The affidavit remains silent about oral agreement. Therefore, there is no prima facie title or right over the suit property in their favour. Regarding possession, at best they can be treated as licensee continuing in possession after expiry of period of the licence. The said possession is unlawful possession. Therefore, on the date of the suit they have no prima facie right to be in lawful possession of the disputed property. Their possession cannot be treated as settled possession or long or continuous possession. Further, they are not entitled to seek injunction against the true owner on the basis of their sole unlawful possession or possession without any right to be lawfully in possession of the disputed property. Regarding balance of convenience, it is to be stated that allowing the revision petitioner to continue in possession till the disposal of the suit will cause hardship and hindrance to innumerable pilgrims attending the renowned temple. Their possession is causing obstruction for the development activities of the temple. Therefore, the revision petitioners failed to satisfy any of the principles governing the grant of interim injunction pending disposal of the suit.
In the instant case, even if it is assumed that the petitioner is in possession of the suit property, at best he would be in possession of the property only from the date of reallotment in his favour by the 2nd respondent on 10-12-1999, which admittedly does not confer any title on the petitioner, and in any case, the power of the 2nd respondent to cancel the original sale deed after lapse of 28 years and reallot the plot in favour of the petitioner, being disputed by the 2nd respondent, merely on the basis of alleged possession, injunction cannot be issued against a true owner, in the instant case, the 1st respondent who is in possession of a valid sale deed having been executed by the original allotee of the plot by the 2nd respondent. Having regard to the fact that the judgment in K. Ankaiah v. Tirumala Tirupathi Devasthanams, was rendered following the latest decision of the apex Court on the issue in Prataprai N. Kothari v. John Braganza, reliance placed by the learned Counsel for the petitioners in support of his case that the petitioner can seek injunction even against the rightful owner of the property, are of no avail to him. In view of the foregoing reasons, I do not find any reason to interfere with the order under revision in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The C.R.P. is devoid of any merit, and the same is according dismissed. No costs.