Allowed

Chinna Geetha Devi v. Mididoddi Shankaraiah

Telangana HC20 Dec 2013CRP/3528/2013

Case brief

AI extract

What is this about?

The court allowed a Civil Revision Petition quashing an appellate order that set aside a temporary injunction. Restoring the lower court order, the court granted an injunction restraining defendants from registering, alienating, or creating charges on suit property based on the plaintiff's prima facie case of title and possession.

What did the court decide?

Impugned C.M.A. order set aside; original injunction order restored restraining defendants from registering, alienating, or creating charge on property pending suit disposal.

Chinna Geetha Devi Vs Mididoddi Shankaraiah — Property and Title | Telangana HC (2013)

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HON’BLE Dr. JUSTICE K.G. SHANKAR C.R.P.No.3528 of 2013

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Date: 20.12.2013

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Between: Chinna Geetha Devi AND Mididoddi Shankaraiah and 6 others.

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… Respondents/

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HON’BLE Dr. JUSTICE K.G. SHANKAR

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C.R.P.No.3528 of 2013

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ORDER:

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The plaintiff in O.S.No.22 of 2011 on the file of the Senior Civil Judge, Nagarkurnool, Mahabubnagar District obtained a temporary injunction against the defendants restraining them to register, alienate and create charge over the suit schedule property pending disposal of the suit. The defendants challenged the same before the Additional District Judge, Wanaparthy in C.M.A.No.32 of 2012. Through the impugned order, dated 20.06.2013, the learned Additional District Judge set aside the orders dated 02.06.2012 of the trial Court by dismissing I.A.No.78 of 2011.

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2. Sri N. Vidya Prasad, learned counsel for the plaintiff contended that the plaintiff is seeking for a declaration of her title and possession over the suit schedule property. The defendants were also sought to be injuncted

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from creating any registered document, alienating and creating charge over the suit schedule property, which belongs to the plaintiff.

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3. Venkataiah and Rameshwaramma are man and his wife. They have three sons viz., Balisetty, Koteshwar and Ramisetty and a daughter by name Jaya Lakshmamma. Venkataiah is no more.

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4. The case of the plaintiff is that Venkataiah purchased Ac.4.15 guntas of land in Survey No.497 on 01.07.1977 in the name of Ramisetty. When Balisetty, Koteshwar and Ramisetty tried to obtain mutation of the property in their name after the demise of Venkataiah, their mother-Rameshwaramma filed a partition suit in O.S.No.30 of 2000 on the file of the Principal District Judge, Mahabubnagar. Jaya Laskshmamma, daughter of Venkataiah was arrayed in O.S.No.30 of 2000 as defendant No.4. The three brothers Balisetty, Koteshwar and Ramisetty are defendants 1 to 3 in O.S.No.30 of 2000.

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5. Balisetty in his turn filed O.S.No.147 of 1999 on the file of the Junior Civil Judge, Nagarkurnool, Mahabubnagar District. The same was transferred to the Principal District Court, Mahabubnagar and renumbered as O.S.No.32 of 2006. A third party by name Venkat Reddy filed a suit for partition and injunction in respect of 200 square yards in Survey No.497 as O.S.No.42 of 2004 on the file of the Junior Civil Judge, Nagarkurnool. It was also

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transferred to the Principal District Court, Mahabubnagar and was renumbered as O.S.No.33 of 2006.

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6. O.S.Nos.30 of 2000, 32 of 2006 and 33 of 2006 were disposed of through a common judgment, certified copy of which is Ex.R.1. O.S.No.30 of 2000 was treated as the main suit. It is claimed by the learned counsel for the plaintiff that the judgments and decrees in O.S.Nos.30 of 2000, 32 of 2006 and 33 of 2006 have become final.

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7. While so, the first defendant claimed that he purchased Ac.0.02 guntas in Survey No.497 and sold 26.88 square yards each to defendants 2 to 7, who are no other than the children of his sister, through registered sale deeds under Ex.R.2 to R.7 dated 30.10.2001.

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The defendants filed a writ petition against the Panchayat when the Panchayat did not grant permission to them to make constructions in the sites purchased by them from the first defendant. The entire property which the first defendant claims and the plaintiff claims are situate in Survey No.497. The plaintiff claims that Ac.0.02 guntas of land purchased by the first defendant is not the plaint schedule property.

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8. The plaintiff contended that the defendants obtained a direction for granting permission to make constructions and that the defendants, however, did not make any constructions in the premises purchased by them. The learned counsel for the petitioner/plaintiff contended that the plaintiff is entitled to the temporary injunction as prima

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facie case, balance of convenience as well as irreparable loss are in her favour and that the appellate Court did not properly appreciate the case of the plaintiff.

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9. Sri Harender Pershad, learned counsel for the defendants submitted that the plaintiff did not assert about Ex.P.1 gift deed under which she allegedly acquired title in the written statement in O.S.No.33 of 2006 where the plaintiff was arrayed as defendant No.2 and that Ex.P.1 gift deed, therefore, cannot be accepted. Be it noted that Ex.P.1 is a registered gift deed. I do not consider that this is the stage at which the gift deed cannot be disputed. After due trial, it may be decided as to whether the plaintiff holds title over the plaint schedule property or otherwise.

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10. So long as the plaintiff claims that she is the owner and possessor of the plaint schedule property and produces Ex.P.1 gift deed, I consider that prima facie case of the petitioner is made out. The learned District Judge considered that temporary injunction sought for is unheard of where the plaintiff is claiming not only title but also possession over the plaint schedule property. I do not agree with this view of the learned District Judge.

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11. It is the contention of the learned counsel for the defendants that when the plaintiff is not only title holder but also is in possession of the suit schedule property, any allegations by the defendants would not affect the plaintiff in any manner. His submission is that alienees of the

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defendants would be hit by Section 52 of the Transfer of Property Act and that they would take the property at their own peril.

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12. The learned counsel for the plaintiff, on the other hand, submitted that in the event the defendants alienate the property which is in possession of the plaintiff, it may lead to multiplicity of the suits either by the alienees or by the plaintiff himself. He placed reliance upon Shankar Hills Plot Purchasers Welfare Association v. Ch. Anantha Redd y^[1] . In that case, the suit was laid seeking for a perpetual injunction to restrain the defendants from interfering with the possession of the plaintiffs over the plaint schedule property and also for perpetual injunction restraining the defendants from alienating the property. Regarding the relief of restraining the defendants from alienating the plaint schedule property, the Division Bench observed that the relief was not permissible in law and that such a relief, if at all, could be claimed in an interlocutory application and not as a principal relief in the suit. The suit was ultimately ordered to be returned by Division Bench to delete the relief to restrain the defendants from alienating the suit schedule property as a final relief in the suit.

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13. The learned counsel for the plaintiff relied upon this decision to show that as an interim measure, the relief of temporary injunction restraining the defendants from alienating the properties in the possession of the plaintiff can be awarded. I am afraid that the Division Bench did not

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express such a view.

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14. The learned counsel for the plaintiff submitted that in order to avoid future multiplicity of proceedings, the temporary injunction sought for by the plaintiff deserves to be granted, where prima facie case, balance of convenience and irreparable loss and injury are in favour of the plaintiff. In view of Ex.P.1 registered sale deed,

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I conclude that the plaintiff has made out a prima facie case in view of her contention that she is in possession of the suit schedule property; and by claiming that the defendants have been attempting to alienate by asserting title to the same, she has established the balance of convenience in her favour. I, therefore, agree with the finding of the learned trial Judge that this is a fit case for grant of temporary injunction.

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15. The learned Additional District Judge inter alia held that court fee was paid for declaration only. The learned counsel for the plaintiff submitted that court fee was paid under Section 24 (b) of the Andhra Pradesh Court Fee and Suits Valuation Act and that the question of paying any court fee for the temporary injunction does not arise. In view of the judgment of the Division Bench in Shankar Hills Plot Purchasers Welfare Association (supra), the plaintiff could not have asked for a final relief of injunction. The question of payment of court fee for such an injunction which the plaintiff could not seek does not arise.

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16. Consequently, the Civil Revision Petition is

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allowed. The impugned order in C.M.A.No.32 of 2012 on the file of the Additional District Judge, Wanaparthy dated 20.06.2013 is set aside. The orders of the trial Court in I.A.No.78 of 2011 dated 02.06.2012 are restored granting temporary injunction in favour of the plaintiff and against the defendants restraining the defendants from registering, alienating and creating charge over the plaint schedule property, pending disposal of the suit. Miscellaneous Petitions, if any, pending in this revision shall stand closed. No costs.

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Dr. K.G. SHANKAR, J

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Date: 20.12.2013 Isn

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[1] 2013 (5) ALT 688 (D.B.)

Chinna Geetha Devi v. Mididoddi Shankaraiah

Case brief

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Chinna Geetha Devi v. Mididoddi Shankaraiah

Case brief

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