Partly allowed

Muda Nagabhushanam Gupta, v. Sri Chilam Vishnu Bhoopal

Telangana HC7 Mar 2014CMA/1018/2013

Case brief

AI extract

What is this about?

This civil miscellaneous appeal challenged a trial court order granting interim injunction on suit land. The court set aside the injunction, finding balance of convenience with the respondent due to ongoing construction, though it allowed a bank guarantee to protect the petitioner.

What did the court decide?

Order granting interim injunction set aside; appellant directed to furnish bank guarantee of Rs. 1.50 crores.

Muda Nagabhushanam Gupta, Vs Sri Chilam Vishnu Bhoopal — Property and Title | Telangana HC (2014)

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THE HON’BLE Ms.JUSTICE G.ROHINI AND

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THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY

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CIVIL MISCELLANEOUS APPEAL No.1018 OF 2013

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JUDGMENT: (Per T. Sunil Chowdary, J)

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1 This Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of CPC, challenging the order and decree dated 18.11.2013 passed in I.A.No.464 of 2013 in O.S.No.27 of 2013 on the file of the I-Additional District Judge, Nizamabad, whereunder and whereby the petition filed by the respondent herein/plaintiff under Order XXXIX Rules 1 & 2 of CPC seeking interim injunction restraining the appellant herein/ defendant from making any sort of construction in the suit schedule property pending disposal of the main suit was allowed.

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2 For the sake of convenience, appellant and respondent will hereinafter be referred to as respondent and petitioner respectively as they were arrayed before the trial Court.

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3 Succinctly, the case of the petitioner is that the petitioner is the absolute owner of an extent of Ac.3.36 guntas of land in Sy.No.223 situated at Phulong, Nizamabad; out of which he sold Ac.3.20 guntas i.e. 2800 sq. yards under registered sale deed No.3617 of 1977, 2000 sq. yards under registered sale deed No.3618 of 1977 and an extent of Ac.2.20 guntas under registered sale deed No.121 of 1979. The left over extent is Ac.0.16 guntas, which is, hereinafter referred to as the suit schedule land. The respondent is carrying on business as proprietor of M/s. Venu Oil and Rice Mill in the land purchased through the above registered sale deed bearing Nos.3617 and 3618 of 1977. In the year 1996

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on the request made by the respondent, suggesting constructive possession of the petitioner over the suit schedule land, and out of trust and assurance given by him that he will vacate the suit schedule land, the petitioner permitted the respondent to use the suit schedule land without any rent for his business and other purposes. The respondent sold more than Ac.1.20 guntas of land in Sy.No.223 to different purchasers by converting it into residential plots through registered sale deeds. In the year 2002, the petitioner came to Nizamabad and requested the respondent to vacate Ac.0.16 guntas of land for which the respondent falsely stated that the land of the petitioner mixed with the other land. The petitioner applied to the authorities for demarcation of his Ac.0.16 guntas of land. The respondent, in collusion with the revenue officials, approached the Hon’ble High Court and filed writ petition No.25561 of 2002 against the petitioner and others. In the said writ petition the petitioner filed counter stating that he will take steps for recovery of possession of Ac.0.16 guntas of land through process of law. Based on the counter of the petitioner, the Hon’ble High Court disposed of the writ petition on 20.10.2003 directing the petitioner not to take steps to dispossess the respondent from the said land as otherwise than due process of law.

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4 Under the circumstances, the petitioner filed the main suit seeking a decree for declaration of title and recovery of possession of the suit schedule land. Along with the suit, I.A.No.464 of 2013 is filed under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction restraining the respondent/defendant from making any construction over the plaint schedule property. It was pleaded in the affidavit filed in support of the petition for injunction that the respondent had gathered gravel, cement and other building material with a view to construct

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a commercial complex in the suit schedule land and that the prima facie case and balance of convenience are in favour of the petitioner. It was also pleaded that if no injunction is granted, it may cause untold hardship to the petitioner.

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5 The respondent field counter affidavit inter alia contending that he is the rightful owner and is in exclusive possession and enjoyment of the entire extent of land measuring Ac.2-20 guntas in Sy.No.223 of Nizamabad Shivar, surrounded by twelve feet height existing old compound wall together with existing old sheds and structures and a new building etc, bearing municipal No.5-6-661 corresponding to Old No.5-6-573/7A situated in Ward No.5, Block No.6 at Phulong area, Nizamabad. He has been in possession and enjoyment of the entire extent of land in Sy.No.223 for more than 34 years. The suit as filed by the petitioner through the general power of attorney is not maintainable. The suit is belated and barred by limitation and hence the same is liable to be rejected. The respondent asserts that he, being not only as purchaser, but also by continuous and adverse possession since 1979, has perfected his title to the suit schedule land. ON 24.6.1977 the father of the plaintiff agreed to sell the entire extent of land in Sy.No.223 of Nizamabad admeasuring Ac.3.28 guntas for a total consideration of Rs.1,70,000/- and executed registered sale deeds on different dates. In the sale deed pertaining to the document No.121 of 1978, it is mentioned that Ac.0.16 guntas covered by grave yard and Mangamma Gudi is excluded. Before getting registered sale deed in respect of Sy.No.221, the respondent addressed a letter dated 27.01.1979 to the father of the petitioner confirming/informing that Ac.0-16 guntas of land covered by grave yard and Mugamma Gudi were in Sy.No.221 but not in Sy.No.223. The petitioner and his father assured that they will

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confirm with village Patwari and delete the same from the sale transaction. After verification, an extent of Ac.0-16 guntas of land was excluded from the Sy.No.223 as they are the owners of the entire extent in Sy.No.221 and 223. They have included the area of Ac.0.16 guntas of land covered by grave yard and Mangamma Gudi at the time of registration of sale deed in respect of Sy.No.221 vide document No.941 of 1979. It is not correct to state that this respondent has been in possession and enjoyment of the suit schedule land with the permission of the petitioner. For the first time, the petitioner’s father has taken a plea in the counter filed by them in writ petition No.25561 of 2002 before the Hon’ble High Court that this respondent has been in permissive possession of the suit schedule land. On 27.12.2002, the Mandal Surveyor conducted demarcation of Sy.No.223 and stated that no vacant land of Ac.0.16 guntas is available and there is an oil mill with compound wall and other residential houses in Sy.No.223. The petitioner executed illegal Registered Agreement of Sale-cumGeneral Power of Attorney vide document No.6054 of 2009, dated 05.10.2009 in favour of one V. Ram Reddy, who filed the present suit. The said V.Ram Reddy who is not concerned with the property and who is not acquainted with the facts submitted an application dated 11.11.2009 to the Tahsildar for mutation of Ac.0.16 guntas of land and issuance of passbook without being in possession. The Tahsildar issued a notice on 12.12.2009 calling objections to which the respondent submitted a detailed reply. The Tahsildar visited the premises and noted the features and passed orders No.A5/826/2010, dated 09.02.2010 rejecting the claim of the said Ram Reddy. The said Ram Reddy, without challenging the said findings and order, which has become final, has again reagitated the matter before the Tahasildar by submitting another

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representation dated 04.11.2010 with a prayer to restore the possession. The Tahsildar issued notice dated 29.11.2010. Assailing the same, the respondent filed writ petition No.32063 of 2010 before this Court. This Court vide order dated 16.03.2011 directed the respondent to appear and bring the facts to the notice of the Tahsildar. Accordingly, this respondent submitted objections on 01.06.2011 and the Tahsildar rejected the application of V.Ram Reddy. T h e respondent leased out the land to M/s.Nikhilsai Infra India Private Limited for construction of complex and the said company is in possession of the land and they obtained construction permission for Multiplex and invested huge amounts. The prima facie case and balance of convenience are in favour of the respondent but not in favour of the petitioner. Hence the petition is liable to be dismissed.

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6 During the course of enquiry before the trial Court, Ex.A.1 to A.4 were marked on behalf of the petitioner and Exs.B.1 to B.45 were marked on behalf of the respondent.

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7 Basing on the documentary evidence and the other material available on record, the trial Court arrived at a conclusion that the petitioner is entitled to interim injunction and accordingly allowed the petition. Aggrieved by the order passed by the trial Court, the respondent filed the present Civil Miscellaneous Appeal.

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8 Heard Sri D. Prakash Reddy, learned senior counsel appearing for appellant/respondent and Sri B. Adinarayana Rao, learned senior counsel appearing for the respondent/ petitioner.

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9 Having regard to the rival submissions made by the learned counsel for both the parties, the only point that requires consideration is whether the temporary injunction granted by the

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Court below by the order under appeal is sustainable under law.

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10 Before adverting to the rival submission made by the learned senior counsel, we may refer to the recent decision of the Supreme Court in Makers Development Services Private Limited v M.Visvesvaraya Industrial Research and Development Centre^[1] , in which it was held at para 11 as under:

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It is settled law that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties. It is also established law that the Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the court must make all endeavours to protect the interest of the parties.

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11 We may also refer to the decision in Kashi Math Samsthan v

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Srimaed Sudhindra Thirtha Swamy^[2] , wherein it was reiterated by the Supreme Court that “in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted.”

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12 In Seema Arshad Zaheer v Municipal Corporation of Greater Mumba i^[3] , the Supreme Court in para 29 held as follows.

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The discretion of the court is exercised to grant a temporary injunction only when the following requirements are made out by the Plaintiff: (i) existence of a prima facie case as pleaded, necessitating protection of the Plaintiff's rights by issue of a temporary injunction; (ii) when the need for protection of the Plaintiff's rights is compared with or weighed

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against the need for protection of the Defendant's rights or likely infringement of the Defendant's rights, the balance of convenience titling in favour of the Plaintiff; and (iii) clear possibility of irreparable injury being caused to the Plaintiff if the temporary injunction is not granted. In addition, temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the Plaintiff's conduct is free from blame and he approaches the court with clean hands.

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13 The Hon’ble Supreme Court in Gujarat Bottling Co. Ltd. v Coca Cola Co. ,^[4] while dealing with grant of or vacating the interim injunction, held as follows.

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In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings.

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14 Let us consider the sustainability of the order under appeal in the light of the principles of law enunciated in the cases cited supra.

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15 On appreciation of the evidence adduced by both the parties, the Court below held that a prima facie case has been established

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in favour of the petitioner. It was also held that the petitioner has made out balance of convenience and irreparable injury in his favour since once the suit land is developed it acquires irretrievable situation.

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16 Having carefully gone through the order under appeal, we do not find any justifiable reason to interfere with the finding that the petitioner has made out a prima facie case.

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17 A perusal of Ex.B.1 reveals that the petitioner and his father have agreed to sell an extent of Ac.3.28 guntas of land in Sy.No.223 of Phulong, Nizamabad in favour of the respondent. The respondent purchased an extent of 2800 sq. yards and 2000 sq. yards of land under Exs.B.6 and B.7 registered sale deeds dated 26.09.1977 from the petitioner and his father. A perusal of Ex.B.2 reveals that the time stipulated in Ex.B1 for obtaining registered sale deed in respect of remaining land was extended upto 31.1.1979. A perusal of Ex.B.8 reveals that the respondent purchased an extent of Ac.2.20 guntas of land from the petitioner and his father in Sy.No.223 under registered sale deed dated 04.01.1979. The respondent also purchased Ac.1.00 and odd from the petitioner in Sy.No.221 under registered sale deed (Ex.B.9). A perusal of Ex.B.1 to B.8 reveals that the respondent purchased an extent of Ac.3.20 guntas of land from the petitioner and his father. A perusal of Exs.B.10 and B.11 clearly reveals that the respondent constructed an oil and rice mill and invited the petitioner and his father for the opening ceremony. A perusal of Ex.B.12 to B.23 and Exs.B.40 to B.43 clearly reveals that the respondent is carrying on business by obtaining necessary permission from different departments. A perusal of Ex.B.24 to B.29 reveals that the respondent has been paying taxes. The respondent sold a part of the property to different persons for construction of houses. A

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perusal of Ex.B.44 and B.45 reveals that the respondent has obtained necessary permission from the Town Planning Department for converting part of the land for commercial purpose. A perusal of these documents would clearly reveal that the respondent has been in possession and enjoyment of the land purchased under Exs.B.6 to B.9.

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18 Exs.A.2 & B.30, A.3 & B.31 and A.4 & B.33 are one and the same. A perusal of Ex.B.30 to B.33 clearly reveals that the respondent filed writ petition No.25561 of 2002 against the petitioner and others, and the same was disposed of on 22.10.2003 with a direction not to dispossess the respondent from the suit schedule land without following the due process of law. One Ram Reddy, who filed the present suit also made an application to the Tahsildar, Nizamabad for delivery of possession of Ac.0.16 guntas Sy.No.223. The Tahsildar issued notice to the respondent who in turn filed writ petition No.32063 of 2010 and the same was disposed of with a direction to this respondent to appear before the Tahsildar and submit his objections. A perusal of Ex.B.34, B.35 and B.38 reveals that the Surveyor and Tahsildar of Nizamabad surveyed the land and found that there is no vacant land in Sy.No.223 of Nizamabad. Ex.A.1 is the registered agreement of sale-cum-General Power of Attorney executed by the petitioner in favour of Ram Reddy.

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19 Though it is claimed by the petitioner that his family owned an extent of Acs.3.36 guntas of land in survey No.223 of Nizamabad Shivar, no document is filed on his behalf to establish the same. On the other hand, it appears from Exs.B.1 and B.2 agreements of sale that the petitioner and his father have agreed to sell an extent of Acs.3.28 guntas in Sy.No.223 in favour of the

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respondent. However, a perusal of Exs.B.6, B.7 and B.8 reveals that the petitioner and his father sold an extent of Acs.3.20 guntas only in favour of the respondent.

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20 It is also relevant to note that Exs.B.34, B.35 and B.36 prima facie reveal that there is no vacant land o f Ac.0.16 guntas in Sy.No.223. If Mangamma Gudi and grave yard are really situated in Sy.No.223, the same might have been reflected in the boundaries of Exs.B.6, B.7 or B.8.

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21 Under the circumstances, it appears to us that it is not possible to arrive at a conclusion at this stage that there is a vacant land of Ac.0.16 guntas in Sy.No.223. At the same time, the possibility of location of Mangamma Gudi and grave yard in Sy.No.221 prima facie cannot be ruled out, in view of the recitals of Exs.B.3 and B.4. Thus, undoubtedly the matter requires a detailed enquiry with regard to the identification of the property.

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22 The predominant contention of the petitioner is that the respondent came into possession of the suit schedule property in the year 1996 with their permission. A perusal of Exs.B.30 and B.33 reveals that W.P.No.25561 of 2002 filed by the respondent herein was disposed of on 22.10.2003 with a direction not to dispossess the respondent from the suit schedule property. The petitioner herein filed counter (Ex.B.31) in W.P.No.25561 of 2002 alleging that the respondent came into possession of the suit schedule property with his permission. A combined reading of Exs.B.1, B.2, B.6, B.7 and B.8 prima facie shows that the respondent has been in possession and enjoyment of an extent of Acs.3.20 guntas in Sy.No.223 from 05.10.1977 onwards. In Ex.B.3 letter dated 27.01.1979 the respondent has taken a specific stand that Mangamma Gudi and grave yard are not located in

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Sy.No.223. The petitioner and his father gave a reply (Ex.B.4) on 30.01.1979 stating that they will delete Ac.0.16 guntas of land if Mangamma Gudi and grave yard are not located in Sy.No.223. In the year 1979 itself, the petitioner as well as respondent are not in a position to identify in which survey number Mangamma Gudi and grave yard are situated. It appears that both the parties have not taken this aspect seriously even at the time of execution of Ex.B.9 sale deed dated 16.04.1979. Till 2002 i.e., for a period of 23 years, the petitioner has not taken any steps to identify in which survey number Mangamma Gudi and grave yard are situated. For the reasons best known, the petitioner approached the Revenue authorities for demarcation of Ac.0.16 guntas of land which prompted the respondent to file W.P.No.25561 of 2002.

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23 In the light of the foregoing discussion, we are of the opinion that the petitioner made out prima facie case to go for trial.

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24 However, we are unable to hold that the balance of convenience is in favour of the petitioner for granting temporary injunction as sought for. It also appears to us that the petitioner failed to establish irreparable loss likely to be caused to him if no injunction is granted.

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25 The material available on record shows that the respondent leased out part of the land to M/s.Nikhilsai Infra India Private Limited for construction of Multiplex in Sy.No.223. A perusal of the trial court record reveals that the petitioner filed the suit in the month of March, 2013. In the affidavit filed by the petitioner, in support of the application for temporary injunction, it is clearly mentioned that the respondent gathered the material for construction of the Multiplex. Thus, it appears that the petitioner approached the Court, after starting of the construction of complex

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by M/s.Nikhilsai in Sy.No.223. Admittedly, there is no ad interim injunction in favour of the petitioner till the application for temporary injunction was disposed of by the order under appeal. Though, by the order under appeal, the Court below granted temporary injunction, this court suspended the said order on 30.12.2013. In pursuance thereof, it appears that the construction over the suit schedule property has been continued and the learned senior counsel for the appellant across the bar submitted that the construction has come upto roof level as of today.

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26 Be that as it may, in the light of the material available on record it cannot be concluded at this stage that the Multiplex is being constructed in the place of Mangamma Gudi and grave yard. Therefore, even if the petitioner succeeds in the suit, he is entitled to recover Ac.0.16 guntas of land in which Mangamma Gudi and grave yard are situated.

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27 Balance of convenience means inconvenience or mischief to be caused to one of the parties to the proceedings. The court has to take into consideration which party will be put in great inconvenience if injunction is granted or not granted. In the present case, if the construction is stalled by granting interim injunction, it may cause more inconvenience to the respondent. Even if no injunction is granted, it may not cause any inconvenience to the petitioner. Viewed from any angle, balance of convenience is in favour of the respondent when compared to the petitioner.

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28 Coming to irreparable loss likely to be caused to the petitioner if no injunction is granted, it is the duty of the petitioner to establish the same. Admittedly, the petitioner filed the suit seeking declaration that he is owner of Ac.0.16 guntas of land in

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survey No.223. If the petitioner fails to establish his title or right over the suit schedule property, he is not entitled for the relief of declaration and consequential recovery of possession. The rights of the parties will be decided after fullfledged trial only. Even as per the case of the petitioner, the respondent is in possession of the suit schedule property. The respondent leased out the land to M/s.Nikhilsai Infra India Private Limited who invested huge amount for construction of the Multiplex. Therefore, in the event of granting injunction the loss likely to be caused because of stalling of construction cannot be compensated in terms of money. As observed earlier, if ultimately the petitioner succeeds, he can recover the possession of Ac.0.16 guntas of land in survey No.223. Therefore, it cannot be held that any irreparable loss would be caused to the petitioner even if injunction is not granted in his favour.

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29 As held in Mohd. Mehtab Khan v Khushnuma Ibrahi m^[5] , where the Court of first instance exercised discretion arbitrarily, capriciously, perversely or ignored the settled principles of law regulating grant or refusal of interlocutory injunctions, the appellate court can interfere with its findings.

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30 The law is also well settled that while deciding interlocutory applications it is not appropriate for the Court to express any conclusive opinion with regard to the merits of the main case since it may affect the rights of one of the parties to the proceedings. In the present case, we found that certain findings were recorded by the Court below on merits particularly on the following aspects:

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1) The respondent is not entitled to take the plea of ownership and the plea of adverse possession;

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2) The contention of the respondent that the suit is barred by limitation is not tenable; and

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3) The respondent sold more than Acs.1.20 guntas of land in Sy.No.223 to various persons and he is in possession of Ac.2.00 only.

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31 It appears to us that the trial court ought not to have recorded any such findings at this stage and therefore, we make it clear that any of the observations/findings recorded in the order under appeal shall not be treated as conclusive and the same shall not come in the way while deciding the main suit.

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32 In the light of the foregoing discussion, we are of the considered view that this is a fit case to interfere with the order under appeal.

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3 3 At the same time, having regard to the nature of the controversy involved, we are of the opinion that it is necessary to protect the interest of the petitioner as well. It was represented by the learned senior counsel appearing for the respondent/appellant herein across the bar that the appellant is ready to furnish Bank Guarantee three-times the value of suit schedule property which is mentioned as Rs.52,81,000/- in the plaint. The said offer made by the respondent certainly protects the interest of the petitioner even if he succeeds in the suit.

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34 Accordingly, there shall be a direction to the appellant/ defendant/respondent in I.A.No.464 of 2013 to furnish Bank Guarantee to the tune of Rs.1.50 crores (Rupees one crore fifty lakhs) to the satisfaction of the trial court, within a period of four weeks from today and that the same shall be kept alive till the disposal of the suit. Subject to the above, the order under appeal dated 18.11.2013 in I.A.No.464 of 2013 in O.S.No.27 of 2013 on the file of the I Additional District Judge, Nizamabad, is set aside.

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35 The Civil Miscellaneous Appeal is accordingly disposed of.

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There shall be no order as to costs.

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36 Consequently, the miscellaneous petitions if any pending in this appeal shall stand closed.

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_____________ G.ROHINI, J

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_________________________ T.SUNIL CHOWDARY, J Dated: 07.03.2014 Kvsn/YS*

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NOTE: