Allowed

V Ramalingeswara Prasad v. v Reddy Vijaya Kumar Reddy

Andhra Pradesh HC16 Jun 2021CRP/767/2019

Case brief

AI extract

What is this about?

The Single Judge civil revision petition challenged an appellate court order suspending an interim injunction in a property dispute. The court allowed the petition, holding that the appeal against the interim order was not maintainable under Order XL III Rule 1 and the suspension order was erroneous.

What did the court decide?

The Civil Revision Petition is allowed, setting aside the suspended order. Respondents are granted liberty to apply for recall of injunction, which the trial court must decide within two months.

V Ramalingeswara Prasad Vs v Reddy Vijaya Kumar… — Property and Title | Andhra Pradesh HC (2021)

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HON’BLE SRI JUSTICE M.GANGA RAO

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CIVIL REVISION PETITION No.767 of 2019

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ORDER :

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This Civil Revision Petition is filed against the docket order dated 04.12.2019 passed by the learned III Additional District Judge, Rajampet, in I.A.No.92 of 2019 in C.M.A.No.2 of 2019, whereby the ad interim order dated 12.10.2018 passed by the learned Senior Civil Judge, Rajampet in I.A.No.516 of 2018 in O.S.No.180 of 2018, is suspended.

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The revision petitioner filed suit in O.S.No.180 of 2018 before the Senior Civil Judge, Rajampet, for permanent injunction against the respondents 3 and 4, who are no other than his brother and sister-in-law and the respondents 1 and 2 and who are said to be the holders of agreements of salecum-General Power of Attorney, seeking permanent injunction stating that the petitioner/plaintiff and the 1^st defendant are the brothers being the sons of one Vandavasi Narasaiah Chetty. The suit schedule properties were owned, possessed and enjoyed by their father and after his death, the plaintiff and the 1^st defendant have unquestionable equal rights over the suit schedule properties. In order to have wrongful gain and distress to the plaintiff, the defendants 1 and 2 have deliberately executed the sale agreements-cum-GPA with incoherent title in favour of

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defendants 3 and 4 by registered documents. But, they shall not do so as they have no right to do so. The defendants 3 and 4 by using political force are exerting pressure on the police, to prevent the plaintiff from enjoying the legitimate share over the properties. In those circumstances, he approached the Court for permanent injunction. He filed copies of sale deeds standing in the name of his father late Narasaiah Chetty and also the copies of sale agreements stealthily executed by defendants 1 and 2 in favour of defendants 3 and 4 on 29.05.2018, 19.06.2018 and 18.07.2018, for proper appreciation of his plight over the disputed properties. As a matter of fact, the sale agreements executed by the defendants 1 and 2 in favour of defendants 3 and 4 do not bind the plaintiff and as such deprivation of the statutory legal right of the plaintiff cannot be taken away by 1^st defendant by his misdeeds. Further, the plaintiff is no way obliged to seek cancellation of such deeds as his possession is conjoint. Since the right of a co-owner by the act of a co-owner is at stake, the present suit for permanent injunction against the defendants 1 and 2 and their alienees i.e., defendants 3 and 4 is legally sustainable and proper.

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The trial court granted ad interim injunction on 12.10.2018. Against which, the defendants 3 and 4 filed C.M.A.No.2 of 2019 before the III Additional District Judge, Rajampet, wherein I.A.No.92 of 2019 is filed under Order XLI Rule 5 of C.P.C.to suspend the interim injunction order dated

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12.10.2018 passed in I.A.No.516 of 2018 in O.S.No.180 of 2018.

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The appellate court, vide docket order dated 04.02.2019 passed in I.A.No.92 of 2019 in C.M.A.No.2 of 2019, suspended the ad interim order dated 12.10.2018, on the ground that the records evidently show that the names of respondents 3 and 4/defendants 1 and 2 are mutated in the revenue records; that the respondents 1 and 2/defendants 3 and 4 are said to have purchased the property against whom also the suit is filed; that the suit is filed for injunction simplicitor but no specific relief for partition has been sought; that the possession appears to be with the respondents 3 and 4 herein in the revenue records, which has been delivered to the respondents 1 and 2 under the registered agreements of sale-cum-GPA; that the material placed by the respondents 1 and 2 shows that the possession has been delivered to them under the registered agreements of sale-cum-GPA; that it is not the case of the petitioner/plaintiff that he is not aware of the proceedings in I.A.No.993 of 2018 in O.S.No.20 of 2018 passed against him by the appellate court and it amounts to suppression of fact; that no ad interim order can be passed in favour of the petitioner/plaintiff as there is every suppression of fact and no such order can be passed against the co-sharer as contended by the petitioner/plaintiff himself; and that the suit itself appears to be defective with its prayer.

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Assailing the impugned docket order passed by the appellate court, the present civil revision petition is preferred.

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Sri Venkateswarlu Chakkilam, learned counsel appearing for the revision petitioner/plaintiff, states that the appellate court erroneously without jurisdiction suspended the order of the trial court by the impugned docket order as the appeal itself is not maintainable against the ad interim order granted under Order XXXIX Rule 1 of C.P.C. The only remedy available to the respondents 1 and 2 herein is to file the vacate stay petition under Order XXXIX Rule 4 of C.P.C. by moving an application in the suit, when the trial court passed a reasoned order. He further submits that the appellate court by way of cryptic, unreasoned and nonspeaking order, suspended the interim order granted by the trial court by the impugned docket order. He further emphatically submits that the respondents 1 and 2 have no locus standi to maintain the appeal on the ground that the property purchased by them is a joint family property and the injunction cannot be granted against the co-owner. The said pleading itself totally destroys the case of the respondents 1 and 2 in view of their specific case that they purchased the property from the respondents 3 and 4 and obtained separate possession of the same when the property itself is an undivided joint family property and in the absence of any documentary evidence on record to show that they are in

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possession of the property by virtue of agreements of salecum-GPAs.

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Sri N.Ashwani Kumar, learned counsel for respondents 1 and 2/defendants 3 and 4, states that originally the suit schedule properties belonged to one Vandavasi Narasaiah and after his death, respondents 3 and 4/defendants 1 and 2 were acquired the right and title over the suit schedule properties. They executed the registered documents dated 29.05.2018, 19.06.2018 and 18.07.2018 in favour of respondents 3 and 4. The appellate court has justified in observing that the names of the respondents 2 and 3 (defendants 1 and 2) are reflected in the revenue records and the material was filed to show that the possession was delivered to them under the registered agreements of salecum-GPA. The revision petitioner has suppressed the material facts with regard to the filing of O.S.No.20 of 2018 by the 2^nd respondent (1^st defendant) on the file of the III Additional District Judge, Rajampet for declaration of right and title over the schedule properties. The revision petitioner willfully did not disclose before the trial court that he filed I.A.No.993 of 2018 in O.S.No.20 of 2018 under Order I Rule 10 of C.P.C. and the same was dismissed. The appellate court has rightly suspended the ex parte ad interim order passed by the trial court. The appeal against the ex parte ad interim injunction is maintainable under Order XLIII Rule 1 of C.P.C. The trial court has passed an ex parte ad interim

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injunction without assigning proper reasons under Order XXXIX Rule 3 of C.P.C. and without weighing out the prima facie case, balance of convenience and irreparable injury. In support of his contention, he relied on the decisions reported in – 1) A.Venkatasubbaiah Naidu Vs. S.Chellappan and others¹ , 2) E.Managamma Vs. A.Muniswamy Naidu² , 3) Meenavalli Balaram Vs. Nadlapatla Satya Pavani Vardhanamma³ and 4) Bachaspati Bhattacharya and others Vs. Mira Bhattacharjee and others⁴ .

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In the facts and circumstances of the case and considering the submissions of the learned counsel, and on perusal of the record, this Court found that the suit schedule properties originally belonged to Vandavasi Narasaiah, who is said to be the father of the revision petitioner and the 3^rd respondent/1^st defendant. The record does not reveal that the said Narasaiah has executed any Will deed. In the absence of Will deed, it could be easily understood that the revision petitioner/plaintiff and the 3^rd respondent/1^st defendant are legally entitled for inheritance of the suit schedule properties acquired by their late father Narasaiah. The respondents 3 and 4/defendants 1 and 2, without having any right or title to the property, are steeply executed the agreements of sale-cum-GPA dated 29.05.2018, 19.06.2018 and 18.07.2018 in favour of the respondents 1 and 2/

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1 (2000) 7 SCC 695

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2 AIR 1983 AP 128

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3 1997(5) ALD 20

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4 AIR 2008

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defendants 3 and 4. But, the respondents 1 and 2 are nowhere pleaded that the recitals of the agreements-cum-GPA contain the averments that they were put in possession of the property or the property was delivered to them effectively. Even if they claimed that they are in possession of the property without such recital, the GPA needs to be registered by paying proper stamp duty. Then only, the transfer of possession is legally justified.

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It appears from the record that the respondents 3 and 4/defendants 1 and 2 were filed a suit for perpetual injunction. In that suit, the revision petitioner/plaintiff filed I.A.No.993 of 2018 in O.S.No.20 of 2018 under Order I Rule 10 of C.P.C. and the same was dismissed. Non-disclosure of filing of such petition by the revision petitioner/plaintiff in the suit for injunction, does not cause prejudice to the respondents/defendants and it could not amount to misleading the court by suppressing of fact.

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In the facts and circumstances of the case, when the acts of the joint co-owner along with others i.e., defendants 3 and 4, who are said to be purchasers and depriving the rights of the revision petitioner/plaintiff as co-owner having joint possession of the property, the suit for injunction simplicitor against the third party purchasers through the joint co-owner is maintainable.

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In view of the above discussion, the Civil Revision Petition is allowed, setting aside the docket order dated 04.12.2019 passed by the learned III Additional District Judge, Rajampet, in I.A.No.92 of 2019 in C.M.A.No.2 of 2019. However, the respondents 1 and 2/defendants 3 and 4 are given liberty to approach the trial court by way of application under Order XXXIX Rule 4 of C.P.C. In the event of filing of such application, the trial court is directed to consider the same as per law uninfluenced by any of the observations made in this revision petition and the impugned order passed by the appellate court, and dispose of the application as expeditiously as possible, preferably within a period of two (2) months thereafter. The parties are directed to cooperate with the trial court. However, there shall be no order as to costs.

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