Allowed

Chukka Sanyasamma v. Banti Venugopala Reddy

Telangana HC9 Feb 2012SA/145/2007

Case brief

AI extract

What is this about?

In this second appeal against a decree granting permanent injunction, the Single Judge set aside the lower courts' judgment. The Court held the plaintiff lacked locus standi and possession to seek injunctive relief, having allegedly sold the property to third parties. The appeal was allowed and the injunction suit dismissed.

What did the court decide?

The decree and judgment confirming the injunction decree were set aside; the suit seeking permanent injunction was dismissed.

Chukka Sanyasamma Vs Banti Venugopala Reddy — Contract and Commercial Disputes | Telangana HC (2012)

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No.145 of 2007

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Date:09-02-2012 Between:

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Chukka Sanyasamma and another …Appellants And Banti Venugopal Reddy …Respondent

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No.145 of 2007

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JUDGMENT:

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This second appeal arises out of the decree and judgment dated 09.10.2006 passed by the IV Additional District Judge, Visakhapatnam in A.S.No.73 of 2004 confirming the decree

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and judgment dated 29.01.2004 passed by the III Additional District Munsif, Visakhapatnam in O.S.No. 2602 of 1998.

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2. The suit filed by the plaintiff for permanent injunction before the III Additional District Munsif, Visakhapatnam in O.S.No. 2602 of 1998 was decreed and the defendants therein preferred A.S.No.73 of 2004 before the IV Additional District Judge, Visakhapatnam. The learned first appellate Court confirmed the decree and judgment passed by the trial Court holding that the plaintiff is entitled for permanent injunction. Feeling aggrieved, the plaintiff preferred the present second appeal.

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3. I have heard Sri O.Manohar Reddy, the learned counsel appearing for the appellant and Sri Rama Rao Mavidi, the learned counsel appearing for the respondents.

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4. For the sake of convenience, the parties will be referred to as “the plaintiff and the defendants” as referred in the suit.

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5. The plaintiff instituted the suit for simple injunction in respect of an extent of 200 square yards of site. His version is that originally his father Banti Venkata Swamy purchased 30 cents of land which is equivalent to 659 square yards in Sy.No.2, plot NO.45/B under a registered sale deed dated 09.09.1956. Admittedly, the father of the plaintiff gifted 200 square yards of site to the first defendant under a registered gift deed dated 22.09.1990 vide document No.6145. According to the plaintiff, the first defendant is the fostered daughter of late Venkata Swamy. Whereas, the defendants contended that she is also the natural daughter of late Venkata Swamy. In any event, since the title of the first defendant in respect of the said 200 square yards by virtue of the registered gift deed executed by late Venkata Swamy is required to be considered and also another question required to be considered is whether she took possession of the property under the said registered gift deed dated 22.09.1980 and is in possession of the property on the date of suit, her relationship with late Venkata Swamy is not of much consequence. The plaintiff’s version is that, though, late Venkata Swamy executed

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the gift deed, the first defendant did not accept the gift as there was a proposal to lay a road through the said land. As the first defendant did not accept the gift, the original gift deed remained with late Venkata Swamy. Thus, according to the plaintiff, the gift was not acted upon and the possession of the property under the gift deed dated 22.09.1980, was not delivered to the first defendant.

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6. On the other hand, it is the contention of the defendants that under the gift deed-Ex.A-5 late Venkata Swamy put the first defendant in possession of the property, since then she has been in possession and enjoyment of the property without any interruption from any corner. The second defendant is the husband of the first defendant. The defendants’ case is that in the site gifted to the first defendant initially they raised a hut and thereafter constructed asbestos roofed house and they have been residing therein. They also contended that when the plaintiff, his mother Narasayyamma and his brother-in-law Gudla Nagaraju tried to dispossess the defendants from the schedule mentioned property, they instituted O.S.No.687 of 1991 on the file of the III Additional District Munsif, Visakhapatnam and obtained a decree against them on 25.01.1995. This fact is not in dispute. However, the contention of the plaintiff is that the plaintiff’s father when the defendants tried to dispossess him from the property purchased by him under registered sale deed, filed O.S.No.274 of 1989 on the file of the VII Additional District Munsif, Visakhapatnam for permanent injunction and obtained decree of permanent injunction against them on 24.07.1989.

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7. The defendants further contended that when the plaintiff wanted to sell away the suit schedule property to the third parties and rumours were spread about the intention of the plaintiff, the defendants got published a notice in Eenadu daily newspaper on 20.05.1998 stating therein that the plaintiff has no right or interest in the property to sell the same to the third parties. Thus, according to the defendants, the gift deed executed by late Venkata Swamy in respect of the first defendant is perfectly valid and the possession was delivered

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under the said gift deed and therefore, it is not open for the plaintiff or his father Venakta Swamy to claim any rights in the property after the gift deed was executed. Further, they claim that they are in possession of the property and in proof thereof, they filed Ex.B-1 registration extract of settlement deed executed by the father of the plaintiff in favour of the first defendant, Ex.B-2 the property tax receipt, Ex.B-3 the electricity bill and Ex.B-4 the certified copy of the decree in O.S.No.68 of 1991 on the file of the III Additional District Munsif, Visakhapatnam.

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8. Both the Courts below recorded concurrent findings to the effect that since Ex.A-5 original gift deed executed by late Venkata Swamy in favour of the first defendant was with him, it has to be presumed that, though the gift was made, it was not acted upon and the possession of the property covered by the gift deed was not delivered to the first defendant. Both the Courts below further were of the view that since the father of the plaintiff filed O.S.No.274 of 1989 in respect of the plaint schedule property against the defendants and obtained a decree, the decree is binding on the plaintiff and the subsequent suit filed by the defendants in respect of the same property is not maintainable. In this context, the learned counsel appearing for the appellants/defendants would submit that late Venkataswamy obtained the decree in the said suit without service of notices on the defendants and therefore, the defendants being not aware of the said suit, the decree and judgment passed in the said suit passed without going into merits is not binding on them. Both the Courts below proceeded on the premise that since originally the property belonged to late Venkata Swamy and in view of the fact that the possession of the property was not delivered to the first defendant under the gift deed dated 22.09.1980 and as the gift was not acted upon, the defendants cannot claim any rights in the property.

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9. The second appeal filed by the defendants has been admitted on considering the

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involvement of the following substantial questions of law for determination.

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a) Whether the judgment and decree of the lower appellate court in confirming the judgment and decree of the trial court and in decreeing the suit for bare injunction is

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legally sustainable and is supported by evidence on record?

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b) In a suit for permanent injunction whether the Courts below are not in error in going into the question of the gift settlement deed executed in favour of the appellant and giving a finding that the gift deed was not accepted is legally sustainable?

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c) Having regard to the fact that the earlier suit filed by the appellants against the plaintiff was decreed in O.S.No.687 of 1991 dated 25.01.1995 on the file of the III Additional District Munsif, Visakhapatnam whether the courts below are not in error for nonconsideration of the maintainability of the suit for bare injunction between the same parties?

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d) Whether the Courts below are not in error in decreeing the suit for injunction on the basis of the alleged admissions made by the defendant in the examination even though the plaintiff has failed to prove his possession over the property?

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e) Whether a suit for bare injunction without seeking a declaration of title without seeking cancellation of the gift deed, is maintainable?

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f) Whether the reasoning of the courts below in decreeing the suit for bare injunction is supported by evidence on record?

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10. In the learned trial Court, the plaintiff instituted suit for simple injunction. He admitted specifically in the suit about the execution of Ex.A-5 registered settlement deed dated 22.09.1980 by his father late Venkata Swamy in favour of the first defendant. His specific contention was that the gift was not valid. His contention was only it was not acted upon. The question for consideration before the learned trial Court was whether the plaintiff is in possession of the plaint schedule property on the date of the suit, if so, he is entitled for the relief of permanent injunction. The genuineness of the gift was not at all in question before the learned trial Court. Yet, the learned trial Court indulged in considering the validity and binding nature of the gift. The gift deed executed by late Venkata Swamy clearly indicates that the possession of the property was delivered to the defendants under the said Ex.A-5 gift deed. Therefore, it is not open for the plaintiff who claims rights under late Venkata Swamy to contend that the possession of the property was not at all delivered to the defendants. Further, the defendants adduced enough evidence to show that they have built asbestos roofed house in the schedule mentioned property and they have been living therein. The learned trial Court unnecessarily indulged in examination of the question as to the validity of the gift and its binding nature. There was no issue before the learned trial Court about the genuineness of the gift since the plaintiff did not seek the relief

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of cancellation of the gift deed. It is the contention of the plaintiff that subsequently late Venkata Swamy executed a registered Will Ex.A-3 in favour of the plaintiff. As rightly contended by the learned counsel appearing for the defendants when once the property was gifted to first defendant under a registered gift deed by late Venkata Swamy, he is no more competent to execute a Will in respect of the same property in favour of the plaintiff. Further the defendants filed O.S.No.687 of 1991 against the plaintiff alleging that they were attempting to trespass into the schedule mentioned property and obtained permanent injunction against them. In view of the said decree and judgment passed in favour of the defendants and against the plaintiff, the present suit filed by the plaintiff seeking injunction simplicitor is not maintainable.

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11. The most crucial aspect in this case is that even according to the plaintiff the first defendant, the father of the plaintiff and the plaintiff sold away the schedule mentioned site to Marianna on 06.02.1995 under Ex.A-6, an agreement to sell, dated 06.02.1995. The plaintiff also states that in turn the said Marianna sold the property to PW-2 P.V.Vijaya Prathap under Ex.A-7 agreement to sell.

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12. Under Ex.A-6 the property was allegedly delivered to Marianna and under Ex.A7 the property was allegedly delivered to Mr.K.V.Prathap when the plaintiff is one of the vendors and sold the property to Marianna and when again the property was sold to Vijaya Prathap, I am of the considered view that the plaintiff has no locus standi to file the suit for injunction simplicitor. This crucial aspect has been overlooked by both the Courts below. Since, admittedly under the above said agreements to sell, the property was passed on to third parties, the plaintiff without their presence cannot individually maintain a suit for injunction. This is a serious flaw in the case of the plaintiff which disentitles him to seek the relief of injunction. More over, the plaintiff did not adduce any satisfactory evidence to show that he is in exclusive possession and enjoyment of

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the property. Whereas, the defendants filed the documents above referred to show that they have built a house in the schedule mentioned site and they have been living there. The important factor requires determination in a suit for injunction simplicitor is the factum of possession on the date of filing of the suit. From the evidence on record, it appears that the defendants are in possession of the scheduled mentioned property on the date of the suit, but there is no evidence to show that the plaintiff is in possession of the property. Even according to the plaintiff the property was sold to third parties and if that is so, he cannot claim the possession in respect of the schedule mentioned property. This important fact which is crucial in determination of the crux of the issue in a suit for simple injunction has been overlooked by both the Courts below. Both the courts below unnecessarily indulged into examination of the validity of the gift deed without there being any issue in regard to the said aspect.

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13. Therefore, in my view, the findings recorded by both the Courts below are contrary to the pleadings and evidence on record and without applying the basic principles required to be followed in dealing with a suit for simple injunction. The findings recorded by both the Courts below being perverse and contrary to the evidence on record, constitute a substantial questions of law for consideration in this second appeal and this Court can interfere with the said findings.

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14. For the reasons stated hereinbefore, the plaintiff is not entitled for decree of permanent injunction and the decree and judgment passed by the trial Court which is confirmed by the first appellate Court are liable to be set aside in this second appeal.

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15. For the foregoing reasons, the decree and judgment dated 09.10.2006 passed by the IV Additional District Judge, Visakhapatnam in A.S.No.73 of 2004 confirming the decree and judgment dated 29.01.2004 passed by the III Additional District Munsif, Visakhapatnam in O.S.No. 2602 of 1998 are set aside. The suit filed by the plaintiff

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seeking permanent injunction is dismissed. The second appeal is allowed. There

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shall be no order as to costs.

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R. KANTH RAO,J

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Date:09-02-2012 CCM

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HON’BLE SRI JUSTICE R.KANTHA RAO

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SECOND APPEAL No.145 of 2012

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Date:09-02-2012

Chukka Sanyasamma v. Banti Venugopala Reddy

Case brief

What is this about?

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Chukka Sanyasamma v. Banti Venugopala Reddy

Case brief

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