Andhra Pradesh High Court - Amravati
Origala Ranga Rao vs Desu Srinivasa Rao And 20 Others on 29 August, 2019
Author: G. Shyam Prasad
Bench: G. Shyam Prasad
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
AND
THE HON'BLE SRI JUSTICE GUDISEVA SHYAM PRASAD
Civil Miscellaneous Appeal nos. 4 of 2019 & 1331 of 2018
COMMON JUDGMENT:(Per Hon'ble Sri Justice M.Seetharama Murti) These two Civil Miscellaneous Appeals, viz., (i) C.M.A.no.4 of 2019 filed by the plaintiffs; and (ii) C.M.A.no.1331 of 2019 filed by the 11th defendant arise out of a single order, dated 07.12.2018, of the learned Judge, Family Court-cum-VIII Additional District Judge, Ongole, Prakasam District, at Ongole, passed in I.A.no.793 of 2018 in O.S.no.320 of 2015.
2. We have heard the submissions of Sri Anup Koushik Karavadi, learned counsel appearing for the plaintiffs/appellants in C.M.A.no.4 of 2019 ('plaintiffs', for brevity); and of Sri Ravi Shankar Jandhyala, learned counsel appearing for the 11th defendant/appellant in C.M.A.no.1331 of 2018 ('defendant', for brevity). Defendants 1 to 10 and 12 to 16 are stated to be not necessary parties to these appeals. We have perused the material record.
2.1 The parties in these appeals shall hereinafter be referred to as arrayed in the suit for convenience and clarity.
3. The introductory facts, in brief, are as follows:
The plaintiffs instituted the suit against the defendants for declaration that the plaintiffs are the absolute title holders of the plaint schedule property with possession, that is, plots 1 to 6 shown in the plaint plan and for perpetual injunction and costs. The 11th defendant is also resisting the suit. In the said suit, the plaintiffs filed the subject MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 2 interlocutory application under Order XXXIX Rule 1 read with Sections 94 & 151 of the Code of Civil Procedure, 1908 ('Code', for brevity) requesting to grant a temporary injunction restraining the 11th defendant from making any constructions in the schedule land or in any way changing the physical features of the schedule land pending the disposal of the suit. The 11th defendant filed a counter and resisted the said application. By the order impugned these appeals, the trial Court disposed of the petition by holding in the operation portion of the impugned order as follows:
'Having regard to the peculiar facts and circumstances of the case, I am of the opinion that the petitioners are not entitled to any equitable relief since the 11th respondent already obtained permanent injunction orders under Ex.B5 in respect of the petition schedule property, therefore, in view of the above preponderance authoritative pronouncements it is just and necessary to direct the 11th respondent to execute undertaking in favour of petitioners (within two weeks from the date of this order) that he would not make any constructions in the schedule vacant site or in any way change the physical features of the schedule land till disposal of the main suit. Accordingly, the petition is disposed of.' As already noted, both the plaintiffs and the 11th defendant are aggrieved of the aforesaid order and hence, these two appeals are filed.
4. The case of the plaintiffs in support of their request for grant of temporary injunction against the 11th defendant, in brief, is this: 'The suit is posted for trial. Ever since the suit was filed, the 11th defendant is making attempts to change the physical features of the vacant schedule land by way of making huge constructions and thereby, defeating the purpose of the suit filed for declaration and for perpetual MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 3 injunction. The report filed by the Commissioner in I.A.no.423 of 2016 discloses that the plaint schedule property is a vacant site. As a first measure, to cause loss to the plaintiffs, after filing of this suit by the plaintiffs, the 11th defendant filed O.S.no.547 of 2017 for perpetual injunction on the file of the Court of the learned Junior Civil Judge, Ongole, against all the plaintiffs and another Ariga Venkateswarlu alleging that he entered into development agreement with third parties. These plaintiffs having entered appearance are contesting the said suit. The learned Principal Junior Civil Judge granted temporary injunction against the plaintiffs herein in I.A.no.2434 of 2016, by orders, dated 28.11.2017. The plaintiffs herein filed C.M.A.no.32 of 2017. It is pending on the file of the Court of learned VIII Additional District Judge, Ongole. The 11th defendant even by the date of filing of the suit in O.S.no.547 of 2016, executed a development agreement-cum-General Power of Attorney, dated 09.05.2016, in favour of the Managing Partner of D.V.R. Constructions, D.Venkateswara Reddy, for construction of apartments in the present plaint schedule property. The said D.V.R.Constructions got published a news item in Eenadu Telugu Daily, dated 05.11.2016, calling for objections from the public for availing loan from a Bank. Having failed to proceed with the constructions due to financial constraints, the 11th defendant and D.V.R. Constructions entered into a registered ancillary agreement, dated 16.10.2017. After obtaining temporary injunction in I.A.no.2434 of 2016 in O.S.no.547 of 2016, by orders, dated 28.11.2017, the 11th defendant got cancelled the development agreement, dated 09.05.2016, by means of registered cancellation deed, dated 30.06.2018, and cancelled the ancillary agreement, dated 16.10.2017, by means of registered cancellation deed, MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 4 with a mala fide intention to create further third party interest. Due to his mala fide acts, the 11th defendant entered into another Development Agreement-cum-GPA, dated 05.09.2018, with Sri Tulasi Constructions, Hyderabad, Managing partner, Bhimandam Narasimha Reddy. Week days ago, the 11th defendant himself dug two bore wells in the North East corner of the plaint schedule property and started proclaiming that he himself will start constructions in the plaint schedule property. The plaintiffs have got prima facie case. The balance of convenience is in their favour. Unless a temporary injunction restraining the 11th defendant from making any constructions in the plaint schedule property and from changing the physical features of the schedule land is granted pending disposal of the suit, the purpose of the suit will be defeated and the plaintiffs suffer serious loss and injustice. The photographs showing the vacant plaint schedule property and the existence of two bore-wells, which were dug in the corner of the site are filed along with the application.'
5. Per contra, the case of the 11th defendant, in brief, is this:
The actual extent of land in Survey no.305 of Ongole is Ac.5.78 cents. It is a patta land. The revenue records viz., no.3 Adangal and R.S.R clearly show that this defendant's ancestor's name, that is, Ogirala Kotaiah's name, stood in the records since more than 100 years. Originally, Ogirala Subbaiah, the father of this defendant, was the owner of land on the Northern side of the plaint schedule property. He owned Ac.1.17 cents of land. He had three wives; (i) Mahalakshmamma; (ii) Audemma; and, (iii) Lakshmamma. This defendant, his elder brother Rangaiah and Younger brother, Anakabu are the sons of Subbaiah through MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 5 Audemma. Gajula Audemma, Kolla Koteswari and Adusumilli Manikyam and Pasupulati Anjamma are the daughters of Subbaiah through his third wife, Lakshmamma. Pullamma and Kotaiah are Subbaiah's granddaughters. Subbaiah settled an extent of Ac.0.58 ½ cents on Indla Kotaiah and Pullamma. Indla Rangaiah is the son-in-law of Ogirala Subbaiah. Out of love and affection, the father of this defendant settled joint half extent, that is, Ac.0.58 ½ cents to Indla Pullamma and her brother Kotaiah under a registered settlement deed, dated 14.06.1943. In the remaining extent of Ac.0.58 ½ cents, Subbaiah was having a right. There was family understanding to give the Western Ac.0.58 ½ cents to Pullamma and to take Eastern Ac.0.58 ½ cents by Subbaiah. In the year 1957, Ogirala Subbaiah died. His three sons, Rangaiah, Ranga Rao and Anka Babu became jointly entitled to the said Eastern Ac.0.58 ½ cents. In the year 1982, the brothers felt that it was not feasible for the three brothers to enjoy the said site of Ac.0.58 ½ cents. Therefore, the eldest brother Rangaiah, the younger brother Anka Babu relinquished their rights in the said bit of Ac.0.58 ½ cents in favour of this defendant after taking Rs.3,000/- from this defendant. Accordingly, a registered relinquished deed has been executed in favour of this defendant by his two brothers, on 30.04.1982. From that time onwards, this defendant has been in exclusive and peaceful possession and enjoyment of Ac.0.58 ½ cents (Eastern) with full rights over the property with the knowledge of one and all. Pullamma, who is the grand daughter of Subbaiah died leaving behind Ogirala Radhakrishna Murthy, Ogirala Hari Babu and Ogirala Chenchaiah, and Yamunabathi Aruna. Pullamma's husband is also no more. Pullamma's brother, by name, Kotaiah, who is other settlee of Ogirala Subbaiah of 1943 also died as a bachelor. Therefore, the Western MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 6 Ac.0.58 ½ cents belongs to Ogirala Radhakrishna Murthy, Ogirala Hari Babu and Ogirala Chenchaiah, who are the sons of Pullamma and the Eastern Ac.0.58 ½ cents belongs to this defendant. So, the entire Ac.0.58 ½ cents is vacant and is in possession and enjoyment of this defendant. On the Southern side of this defendant's property is the plaint schedule land and some other land. It originally belonged to Ogirala Peraiah and Chenchaiah, sons of Chengalrayudu. They have title and possession to an extent of Ac.1.44 ½ cents. They sold Ac.1.44 ½ cents to Devathu Sreeranganadham, on 19.09.1981, and executed a registered sale deed in his favour. He was in peaceful possession and enjoyment of the said extent. Later, the said Devathu Sreeranganadham, Kannaiah and Sreeramulu gave General Power of Attorney to Ariga Venkateswarlu S/o Guravaiah to sell their land, that is, the land purchased from Ogirala Chenchaiah and Peeraiah. But, in the General Power of Attorney, the GPA holder got mentioned the said extent of land Ac.1.88 cents instead of Ac.1.44 ½ cents. They got mentioned or included an extent of Ac.0.43 ½ cents in excess without having any right. Later, the extent of Ac.1.88 cents was divided into plots and sold as house sites. If all the title deeds are put together, the total extent will exceed the original right of Ac.1.44 ½ cents. Therefore, if false excessive extent was got mentioned in the sale deed, they cannot get it. The GPA holder, Ariga Venkateswarlu, is one such a purchaser of more extent than he is entitled to. Later, an extent of Ac.1.88 cents was divided into plots and sold as house sites. The plaintiffs 1 to 6 are such purchasers. The plaint schedule property in the present suit is a portion of the said excessive extent of Ac.0.43 ½ cents. The plaintiffs and other purchasers have no extent of land as purchased by them. Similarly, the MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 7 plaintiffs 1 to 6 and other such purchasers are entitled to Ac.1.44 ½ cents only but not Ac.1.88 cents. Even though certain extent has been mentioned in the sale deed, the petitioners are not entitled for the plaint schedule property, which is not owned and possessed by their vendor. The 3rd plaintiff, by name Nizampatnam Venkata Subba Rao is alone the direct purchaser of his plot (under original vendors' document, dated 19.09.1931). The other plaintiffs purchased their respective plots from the different subsequent purchasers of the property in the same schedule. The 1st plaintiff also purchased two plots recently even though the Court passed judgments against the schedule property. In the year 2005, the GPA holder Ariga Venkateswarlu, Nizam Patnam Venkata Subba Rao and Nagasuri Ananda Babu hatched a plan to grab the property of this defendant. The said Ariga Venkateswarlu as plaintiff field a suit in O.S.no.225 of 2005 on the file of Principal Junior Civil Judge Court, Ongole, for grant of permanent injunction against this defendant and others to sell their plots and other purchasers plots in excessive extent of Ac.0.43 ½ cents to encroach the Northern side land under the guise of permanent injunction because Southern side is shown as 30 feet road in the plaint schedule. In the said suit, Nizam Patnam Venkata Subba Rao and Nagasuri Hari Babu, who are 3rd and 5th plaintiffs in O.S.no.320 of 2015 were examined as PWs 2 & 3 respectively. The trial Court dismissed the suit O.S.no.225 of 2005 on contest, on 17.06.2008, without granting permanent injunction by giving a finding that 'the plaintiff miserably failed to explain about the variation of extent owned by the plaintiff, PWs 2 & 3 and also failed to say the measurements of the original disputed site and its location on land and as they failed to take steps for appointment of an Advocate Commissioner for the said purpose.' Later, MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 8 Ariga Venkateswarlu, who is the plaintiff in O.S.no.225 of 2005 preferred an appeal, A.S.no.96 of 2008, against the decree & judgment of the trial Court in O.S.no.225 of 2005 on the file of Principal Junior Civil Judge's Court, Ongole. The learned II Additional District Judge, Ongole, allowed the said appeal, on 13.04.2009, by setting aside the trial Court judgment. Aggrieved of the said decree & judgment in A.S.no.96 of 2008, of the learned II Additional District Judge, Ongole, this defendant preferred a second appeal in S.A.no.425 of 2009 before this Court. The said second appeal is pending. This defendant, who is the 4th defendant in O.S.no.225 of 2005, filed a petition to the Survey authorities of Ongole to survey his land situated in Sy.no.305 of Ongole Town, after paying challan of Rs.250/- in State Bank of India, Ongole Branch, as user charges as the plaintiff did not take any steps to measure the site by way of appointment of an Advocate Commissioner. The Inspector of Survey along with the Surveyor of Ongole Municipal Corporation measured the land after giving notices to the plaintiff and other purchasers in Sy.no.305 of Ongole Town along with defendant's land of Ac.0.58 ½ cents and marked the boundaries in the presence of plaintiff and other purchasers. The boundary stones are already available on four sides of this defendant's land. The Inspector of Survey gave a copy of the field measurement rough sketch to this defendant. In the said sketch, this defendant's land was identified as 25511 square feet, which is equivalent to Ac.0.58 ½ cents in Sy.no.305 in Ongole Town. The copy of the rough sketch given by the Inspector of Survey, Ongole, dated 23.05.2012, was filed before this Court in S.A.no.425 of 2009. On 27.11.2014, the High Court delivered judgment by allowing the appeal S.A.no.425 of 2009 filed by this defendant by setting aside the decree & judgment passed in MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 9 A.S.no.96 of 2008 on the file of II Additional District Judge, Ongole, and confirming the lower Court judgment in O.S.no.225 of 2005 on the file of the Court of the Principal Junior Civil Judge, Ongole. The 3rd plaintiff and the 5th plaintiff deposed as PWs 2 & 3 along with the GPA (PW1) in O.S.no.225 of 2005 on the file of Principal Junior Civil Judge's Court, Ongole, for grant of injunction to save their plots along with other plots in the said excessive extent of Ac.0.43 ½ cents. The plaintiffs concealed the real facts. The judgment of the trial Court in O.S.no.225 of 2005 and that of the High Court in S.A.no.425 of 2009 are suppressed and the present fresh suit is filed with bad intentions and to grab the Northern side land. The total extent of land of all subsequent purchasers should be Ac.1.44 ½ cents but not Ac.1.88 cents. If Ac.1.44 ½ is divided into plots and roads, the plaintiffs will not get the suit site at all and the other purchasers also will not get similar extents. This defendant and his family members are in possession and enjoyment of Ac.0.58 ½ cents only and not more. Similarly, the GPA and other purchasers of house sites from Devathu people in the survey numbers mentioned therein, their GPA can execute title deeds to an extent of Ac.1.44 ½ cents and give possession of the said extent only but not Ac.1.88 cents. The plaintiffs have neither title nor possession over the plaint schedule property. This defendant's own sister had field a suit O.S.no.270 of 2006 on the file of the Court of the learned Additional Senior Civil Judge, Ongole, against this defendant and some others for partition. The said suit was dismissed, on 24.08.2012, on contest. The appeal in A.S.no.260 of 2013 against the decree & judgment in O.S.no.270 of 2006 is pending before the High Court. A.S.M.P.No.828 of 2013 was filed seeking to grant stay. The said petition was dismissed, on 09.07.2015, by the High Court by MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 10 observing that there is no prima facie case and the balance of convenience is not in their favour and that the plaintiffs miserably failed to prove their case. As per the Master plan of Ongole Municipal Corporation, there is a 40 feet road on Eastern side of this defendant's property. Now, there is only 30 feet road in existence. On 09.05.2016, this defendant gifted an extent of 114.70 square meters or 137.15 square yards of site from Ac.0.58 ½ cents of his own property, which is worth Rs.16,46,000/- under a registered gift deed under document no.3473/2016. This defendant and his daughter previously entered into a development agreement with D.Venkateswara Reddy, who is Managing Partner of D.V.R. Constructions. After going through the title deeds, link documents, previous cases records and judgments related to the said property and also papers of the fresh litigation, the builder obtained legal opinion from his senior counsel and after satisfying with the title, possession and enjoyment of this defendant over the said property, the builder entered into the said agreement with this defendant. After knowing about the same, the plaintiffs started causing hurdles to this defendant by issuing false notices to the Bank authorities and to the Ongole Municipal Commissioner not to sanction any loan and not to issue any approved plan. The Ongole Municipal Corporation issued an approved plan in favour of this defendant after perusing the documents. As the plaintiffs are creating unnecessary nuisance and hurdles to this defendant though they have no right, title, possession and enjoyment over the property, this defendant filed a suit in O.S.no.547 of 2016 against the plaintiffs and their GPA, Ariga venkateswarlu for grant of perpetual injunction. On 28.11.2017, the learned Principal Junior Civil Judge, Ongole, granted temporary injunction. No facts are suppressed MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 11 by this defendant before any individual or any authority. This defendant has got clear title, possession and enjoyment over the property. He has given sufficient time to the builder to start the construction. As he was unable to secure the amount for construction, on 30.06.2018, this defendant cancelled the development agreement and GPA with him and entered into a fresh Development agreement with GPA with one Bhimanandam Narasimha Reddy, who is the Managing Partner of Sri Tulasi Constructions, Hyderabad, on 05.09.2018. This defendant raised construction in his own site. The plaintiffs have no right to interfere with the peaceful possession and enjoyment of this defendant's property. The plaintiffs again restarted the litigation even though the High Court confirmed the right, possession and enjoyment of this defendant over the property to an extent of Ac.0.58 ½ cents on Northern side to the plaintiffs' property as surveyed by the Inspector of Survey in the presence of the GPA Ariga Venkateswarlu and others. The Court disbelieved the contention of the vendor of the plaintiffs. The present suit is filed with mala fide intentions to cause hurdles to this defendant and the builder and to make unlawful gain. This defendant is a retired employee and is a law abiding citizen. On 12.05.2016, the plaintiffs, by name, Nizampatnam Venkata Subba Rao and Nagasuri Ananda Babu sent one Sambasiva Rao, Ongole, as mediator by proposing that the plaintiffs are ready to withdraw this suit if this defendant pays Rs.20,00,000/-. He also threatened that if this defendant failed to pay any amount, they will see how this defendant and the builder can complete the Apartment in the subject property. This defendant refused to pay even a single pie as there is no need to pay any amount. Thereafter, they got issued a notice to blackmail this defendant and the builder. The plaintiffs gave a paper MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 12 publication through Eenadu Telugu daily of Prakasam District Edition with false averments by suppressing all the facts with a mala fide intention to blackmail this defendant and his builder for wrongful gain. Immediately, on 14.10.2018, this defendant gave a public notice with all true facts in the same newspaper. The respondents 15 & 16 in this interlocutory application are not parties to the suit. Without showing them as parties to the suit, they cannot be impleaded as respondents in this interlocutory application. Unless the 15th respondent and Anitha, who are parties to the development agreement-cum-General Power of Attorney, dated 05.09.2018, are added as parties to the suit, this interlocutory application is not maintainable. Earlier also, the plaintiffs filed another application for grant of temporary injunction. No order is granted to the plaintiffs in that application. After coming to know of the said mischievous acts, the Sub Registrar, Ongole, issued show cause notices to the plaintiffs as to why the registered documents should not be put in black list. This defendant filed an application in I.A.no.315 of 2017 against the plaintiffs and the same is pending. Basing on the fraudulent document bearing nos.2505 of 2004, dated 27.05.2004, 7433 of 2004, dated 15.12.2004 and 7435 of 2004, dated 15.12.2004, the plaintiffs filed this false suit against this defendant and others. This defendant is a senior citizen and aged about 74 years. Taking advantage of the old age of this defendant, the plaintiffs by colluded with others and other defendants and are causing loss to this defendant by creating unnecessary hurdles. They have no interest to get ready in the suit.
They have not approached the Court with clean hands. Since the Surveyor measures the schedule property in the presence of both the parties after giving notice and as the Surveyor submitted a report before MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 13 the High Court, the High Court confirmed this defendant's title and possession over the property. Afterwards only this defendant started construction in his own property. Despite all these, the plaintiffs gave started the present litigation. The plaintiffs have no prima facie case as well as the balance of convenience in their favour. Hence, the petition may be dismissed.'
6. During the course of hearing before the trial Court the following exhibits were marked: 'Exhibit A1 is the certified copy of sale deed, dated 01.06.2015; exhibit A2 is the certified copy of sale deed, dated 01.06.2015; exhibit A3 is the certified copy of sale deed, dated 27.05.2004; exhibit A4 is the certified copy of sale deed, dated 11.12.1984; exhibit A5 is the certified copy of sale deed, dated 15.12.2004; exhibit A6 is the certified copy of sale deed, dated 15.12.2004; exhibit A7 is the certified copy of sale deed, dated 20.09.1915; exhibit A8 is the certified copy of sale deed, dated 20.11.1926; exhibit A9 is the certified copy of sale deed, dated 02.08.1928; exhibit A10 the certified copy of settlement deed, dated 19.01.1960; exhibit A11 is the certified copy of the registered sale deed, dated 26.07.1960; exhibit A12 is the certified copy of registered sale deed, dated 26.08.1904; exhibit A13 is the certified copy of mortgage deed, dated 19.06.1910; exhibit A14 is the certified copy of mortgage deed, dated 30.10.1920; exhibit A15 is the certified copy of sale deed, dated 26.04.1929; exhibit A16 is the certified copy of sale deed, dated 02.03.1966; exhibit A17 is the certified copy of settlement deed, dated 02.07.1981; exhibit A18 is the certified copy of sale deed, dated 15.02.1982; exhibit A19 is the certified copy of GPA, dated 15.02.1982;
MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 14 exhibit A20 are four photos; and, exhibit A21 is the corresponding CD.' 'Exhibit B1 is the certified copy of gift deed, dated 30.04.1982; exhibit B2 is the certified copy of judgment, dated 17.06.2008, in O.S.no.225 of 2005; exhibit B3 is the certified copy of rough sketch; exhibit B4 is the certified copy of judgment dated, 27.11.2014, in Second Appeal no.425 of 2009; exhibit B5 is certified copy of order, dated 28.11.2017, in I.A.no.2434 of 2016 in O.S.no.547 of 2016; exhibit B6 is certified copy of building permit order; exhibit B7 is the legal notice, dated 19.05.2016; exhibit B8 is the reply notice, dated 01.06.2016; exhibit B9 is the paper publication, dated 12.10.2018, published in Eenadu, Ongole District Edition; exhibit B10 is the paper publication, dated 12.10.2018, published in Eenadu, Ongole District Edition; exhibit B11 is the proceedings, dated 22.10.2018 of the District Collector; exhibit B12 is the proceedings, dated 22.10.2018, of the District Collector; exhibit B13 is the proceedings, dated 22.10.2018, of the District Collector; exhibit B14 is house tax receipt, dated 18.05.2016; exhibit B15 is the certified copy of written statement of D11 in O.S.no.320 of 2015; exhibit B16 is the Field Measurement Sketch; exhibit B17 is the certified copy of Commissioner's report in O.S.no.320 of 2015; exhibit B18 is the certified copy of sale deed, dated 19.09.1931; exhibit B19 is the certified copy of settlement deed, dated 14.06.1943; exhibit B20 is the certified copy of Gift Deed, dated 09.05.2016, issued by Mee-Seva; and, exhibit B21 is the certified copy of Adangal issued by Mee-Seva.' 6.1 Both the learned counsel made submissions in line with the pleadings of the parties.
MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 15
7. To begin with, it is apt to refer to the settled legal position with regard to granting or refusal of temporary injunctions. Ordinarily, the following three main principles govern the grant or refusal of injunction:
a) prima facie case; b) balance of convenience; and, c) irreparable injury. (See: Hindustan Petroleum Corporation Ltd., v. Srimannarayan [(2002) 5 SCC 760]). In grant or refusal of injunction, pleadings and documents play vital role. In the broad category of prima facie case, it is imperative for the Court to carefully analyse the pleadings and the documents on record and only on that basis the Court must adjudge the existence or otherwise of a prima facie case. The Court while granting or refusing to grant injunction should exercise sound judicious discretion to find the amount of substantial mischief or injury which is likely to be caused to the plaintiffs, if the injunction is refused, and compare it with that which is likely to be caused to the other side, if the injunction is granted. Only on weighing competing possibilities or probabilities of likelihood of injury, an injunction would be issued. In addition to the three basic principles, a Court while granting injunction must also take into consideration the conduct of the parties. A person who had kept quiet for a long time and allowed others to deal with the property exclusively would not be entitled to an order of injunction. The Court should not interfere only because the property is a very valuable one.
(See: Mandali Ranganna and Ors. v. T. Ramachandra [AIR 2008 SC 2291]). Grant or refusal of injunction would have serious consequences depending upon the nature thereof. In dealing with such matters the Court must make all endeavours to protect the interest of the parties by balancing the conveniences and inconveniences. In addition, temporary injunction being an equitable relief, the discretion to grant such relief MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 16 will be exercised only when the plaintiff's conduct is free from blame and he approaches the court with clean hands. (See: Seema Arshad Zaheer and Ors. v. Municipal Corporation of Greater Mumbai and Ors. [(2006) 5 SCC 282]).
8. Now we shall revert to the facts of the case.
The suit is filed seeking a declaration of title of the plaintiffs over the plaint schedule property and for a perpetual injunction by asserting possession of the plaintiffs over the said property. Now, the application for temporary injunction is filed against the 11th defendant to restrain him from making constructions. The said prayer itself indicates that the plaintiffs are not in possession of the property. Be that as it may. In the application filed for temporary injunction, on behalf of the plaintiffs, the 1st plaintiff stated that the suit is posted for trial and that ever since the plaintiffs filed the suit, 11th defendant is making attempts to change the physical features of the vacant schedule land by way of making huge constructions and thereby defeat the purpose of the suit filed for declaration of rights and perpetual injunction. It is also, however, stated that Commissioner's report in I.A.no.425 of 2016 discloses that the schedule property is a vacant site. It is not in dispute that the 11th defendant filed O.S.no.547 of 2017 for perpetual injunction against all the plaintiffs and another and that in that suit, in I.A.no.2434 of 2016, the learned Junior Civil Judge, Ongole, granted temporary injunction, on 13.11.2017, and that a CMA 32 of 2017 filed by the plaintiffs herein is pending on the file of VII Additional District Judge, Ongole. It is also the case of the plaintiffs that after obtaining injunction in the aforesaid interlocutory application in the aforesaid suit, 11th defendant entered MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 17 into a development agreement-cum-GPA, dated 05.09.2018, vide document no.7743 of 2018 with Sri Tulasi Constructions and that the defendant a week days prior to the filing of the subject application of the plaintiffs, that is, week days prior to 17.09.2018, dug two bore-wells in the plaint schedule land. In the said facts & circumstances, the plaintiffs pray that the 11th defendant must be restrained by an injunction from making any constructions. Be that as it may. Without dilating on the defence of the defendant, which is stated supra, in detail, it is pertinent to note that the Ariga Venkateswarlu filed O.S.no.225 of 2005 on the file of Principal Junior Civil Court, Ongole, for perpetual injunction and that the said suit was dismissed, on 17.06.2008. In the said suit, the 11th defendant, that is, the appellant in CMA 1331 of 2018, one of the two present CMAs, was shown as one of the defendants with name, Origala Rangaiah. On the dismissal of the said suit, the said Venkateswarlu filed A.S.no.96 of 2008 on the file of II Additional District Court, ongole. The said appeal was allowed, on 13.04.2009. Aggrieved thereof, the 11th defendant in the present suit, that is, the appellant in CMA 1331 of 2018, and his brothers filed SA 425 of 2009 before the High Court of Andhra Pradesh, and the second appeal was allowed, on 27.11.2014, after taking into consideration a survey report filed by the Inspector of Survey, Special Collector's office, Ongole, which was filed as per the directions of the then High Court of AP. The Field Measurement sketch, dated 23.12.2012, which was marked as an exhibit in the said second appeal, and the judgment in the second appeal are exhibited as exhibits B16 & B4 in the present proceeding, as is evident from the impugned order. We have gone through all the exhibits after calling for the records from the trial Court. The judgment in the second appeal has MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 18 become final. After the dismissal of the second appeal only, the present suit is filed by the plaintiffs herein is not in dispute. Admittedly, the 3rd plaintiff and the 5th plaintiff appeared as witnesses in the said suit, which culminated in the judgment in second appeal before the High Court. Therefore, the 11th defendant contends that the present suit is engineered by the plaintiffs after the judgment in the second appeal in favour of the 11th defendant by suppressing the fact that the second appeal was disposed of in favour of this 11th defendant and that therefore, the plaintiffs, who are seeking injunction by coming to Court with unclean hands are not entitled to the equitable relief. It is apt to note that the second appeal was allowed, on 27.11.2014, and the subject suit was filed by the plaintiffs thereafter in the year 2015. Further, admittedly, the 11th defendant filed a suit for perpetual injunction on the file of Junior Civil Court, Ongole and that in the said suit O.S.no.547 of 2016, a temporary injunction was granted in I.A.no.2434 of 2016, on 28.11.2017, in favour of the 11th defendant and against the plaintiffs herein and the said Venkateswarlu and that against the said order, CMA no.32 of 2017 filed by the plaintiffs herein is pending on the file of VII Additional District Judge, Ongole. The Municipal Corporation, Ongole, had also issued permission to the 11th defendant despite objections raised by the plaintiffs herein. In the above said factual backdrop, the Court below rightly held that the plaintiffs are not entitled to the equitable relief. However, the trial Court strangely directed the 11th defendant to give an undertaking in favour of the petitioners that he should not make constructions in the schedule vacant site. In this milieu of factual position and contentions and on the averments made by the 1st plaintiff in support of the application for temporary injunction it is MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 19 abundantly clear that the plaintiffs have no prima facie case much less a semblance of case. Further, the plaintiffs 3 & 5 who appeared as witnesses in the suit which culminated in a judgment in the second appeal in favour of the 11th defendant, being aware of the second appeal proceedings, suppressed the same and filed the present suit. The very allegations that ever since the suit was instituted the 11th defendant is making attempts to change the physical features of the schedule lands by way of making huge constructions prima facie are suggestive of the fact that the plaintiffs have no prima facie case in their favour. When such is the position and when the trial Court was not inclined to grant an injunction in favour of the plaintiffs on the ground that they are not entitled to equitable relief, we find that the trial Court is not justified in directing the 11th defendant to give any undertaking that too, in directing the 11th defendant to give an undertaking to the plaintiffs. Generally, whenever a party is required to give an undertaking, the party will be directed to file an undertaking affidavit into Court and the same will be taken on record so that action for contempt can be initiated by the Court, if found necessary; but, no direction will be given to give an undertaking to the opposite party. In view of the well settled law, if any constructions are made in a property, which is the subject matter of the suit, during the pendency of a suit, it is needless to state that any such constructions will always be subject to the result or outcome of the suit. The photographs filed before this Court and the submissions made reflect that construction of a multi-storied building reached upto five floors and above and the construction by now made a considerable progress and that it is nearing completion.
MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 20
9. In that view of the matter and for all the afore-stated facts and reasons, the case of the plaintiffs that the trial Court ought to have granted an injunction in their favour restraining the 11th defendant from making constructions in the schedule property is devoid of merit and therefore, their appeal in CMA 4 of 2019 is liable for dismissal and the Civil Miscellaneous Appeal of the 11th defendant in CMA 1331 of 2018 deserves to be allowed setting aside the direction in the impugned order directing the 11th defendant to execute undertaking in favour of the plaintiffs to the effect that he will not make constructions in the schedule vacant site and that he will not change the physical features of the site till the disposal of the suit.
10. In the result, the CMA no.4 of 2019 is dismissed and CMA no.1331 of 2018 is allowed and as a sequel, I.A.no.793 of 2018 in O.S.no.320 of 2015 on the file of VIII Additional District Judge, Prakasam, at Ongole is dismissed subject to the observation that the constructions that are made and are being made by the 11th defendant in the subject property involved in the suit shall be subject to the result of the suit.
Both parties are directed to bear their respective costs. Since the suit is of the year 2015, the trial Court is directed to dispose of the suit as expeditiously as possible and preferably within three months from the date of the receipt of a copy of this common judgment.
There shall be no order as to costs.
MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 21 As a sequel, pending miscellaneous petitions, if any, shall stand dismissed.
_______________________ M. SEETHARAMA MURTI, J _________________________ GUDISEVA SHYAM PRASAD, J 29th August, 2019 RAR MSRM, J & GSP, J C.M.A.nos.4 of 2019 & 1331 of 2018 22 THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI AND THE HON'BLE SRI JUSTICE GUDISEVA SHYAM PRASAD C.M.A nos. 4 of 2019 & 1331 of 2018 (Judgment of the Division Bench delivered by Hon'ble Sri Justice M.Seetharama Murti) 29th August, 2019 RAR