Partly allowed

Sayam Krishna v. Sayam. Manjula

Telangana HC15 Oct 2014CMA/870/2014

Case brief

AI extract

What is this about?

This judgment partly allowed civil miscellaneous appeals against interim injunctions in a partition suit. The court vacated the injunction regarding the 'A' schedule property but confirmed infringement orders for 'B' and 'C' schedule properties, noting the appellant's undertaking to refrain from alienation.

What did the court decide?

The injunction restraining the defendant from changing the nature of 'A' schedule property was vacated. Injunctions regarding 'B' and 'C' schedule properties were confirmed.

Sayam Krishna Vs Sayam. Manjula — Property and Title | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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CIVIL MISCELLANEOUS APPEAL Nos.829, 830, 870 AND 875 OF 2014

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COMMON JUDGMENT:- (per Hon’ble Sri Justice K.C.Bhanu)

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C.M.A.No.829 of 2014, under Order XLIII Rule 1 (r) read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’), is directed against the order and decree, dated 12.8.2014, in I.A.No.1088 of 2013 in O.S.No.1232 of 2013 on the file of the VIII Additional District and Sessions Court, Ranga Reddy District at L.B.Nagar, whereunder and whereby, petition filed by the respondents herein/plaintiffs against the appellant herein/defendant under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. for ad-interim injunction restraining the defendant from changing the nature of the petition schedule “A” to “C” properties, pending disposal of the main suit, was allowed.

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2. C.M.A.No.830 of 2014, under Order XLIII Rule 1 (r) read with Section 151 C.P.C., is directed against the order and decree, dated 12.8.2014, in I.A.No.1089 of 2013 in O.S.No.1232 of 2013 on the file of the VIII Additional District and Sessions Court, Ranga Reddy District at L.B.Nagar, whereunder and whereby, petition filed by the respondents herein/plaintiffs against the appellant herein/defendant under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. for ad-interim injunction restraining the defendant from alienating the petition schedule “A” to “C” properties to the third parties, pending disposal of the main suit, was allowed.

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3. C.M.A.No.870 of 2014, under Order XLIII Rule 1 (r) read with Section 151 C.P.C., is directed by the appellants herein, who are the

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third parties to the suit, against the order and decree, dated 12.8.2014, in I.A.No.1088 of 2013 in O.S.No.1232 of 2013.

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4. C.M.A.No.875 of 2014, under Order XLIII Rule 1 (r) read with Section 151 C.P.C., is directed by the appellants herein, who are the third parties to the suit, against the order and decree, dated 12.8.2014, in I.A.No.1089 of 2013 in O.S.No.1232 of 2013.

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5. As the issue involved in all these appeals is one and the same, these appeals are being disposed of by this common judgment.

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6. The aforementioned suit was filed by the plaintiffs, who are none other than the sisters of the defendant, for partition of the plaint “A”, “B” and “C” schedule properties. Learned counsel for the appellants did not raise any objection with regard to the injunction granted in respect of “B” and “C” schedule properties and confined his arguments only in respect of plaint “A” schedule property. Originally, the plaint “A” schedule property stands in the name of the persons as mentioned in Ex.A-1 sale deed. By virtue of a compromise decree, dated 31.12.1999, in O.S.No.528 of 1999 on the file of the Chief Judge, City Civil Court, Hyderabad, the defendant herein got a share of 231.10 sq.yards out of 2312 sq.yds bearing H.No.5-8-263 to 5-8-267. According to the plaintiffs, it is a joint family property.

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7. Learned counsel appearing for the appellant in C.M.A.Nos.829 and 830 of 2014 contended that the total site to an extent of 2312 sq.yards in which the plaint “A” schedule property including its passage forms part was given by all the parties to a developer for construction of a commercial complex and that if the injunction is continued, not only the defendant, but all the parties to the said development agreement would sustain irreparable injury; that the defendant would undertake not to alienate the share that may be allotted to him in pursuance of the development agreement; that

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ultimately, if the suit is decreed, the defendant would abide by the decree in the suit and give such of the extent, which may fall to his share, to the plaintiffs, and an undertaking memo was also filed before the trial Court; that no irreparable loss or injury would be caused if the injunction is not granted; that there is no prima facie case, as the property cannot be shown to be a joint family property, and hence, he prays to set aside the impugned injunction order.

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8. On the other hand, learned Senior Counsel appearing for the appellants in C.M.A.Nos.870 and 875 of 2014, who are the third parties to the suit, contended that the appellants are not claiming any right in plaint “A” schedule property; that by virtue of the injunction order, the case of all the persons in pursuance of the development agreement has been prejudicially affected; that the “A” schedule property was given to the defendant by virtue of the aforementioned compromise decree and therefore, it amounts to self acquired property of the defendant; that out of love and affection, the property was given to him and therefore, it is not a joint family property of the father of the defendant; that by virtue of the development agreement, no loss would be caused in respect of “A” schedule property and therefore, he prays to allow the appeals.

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9. On the other hand, learned counsel for the plaintiffs contended that the father of the defendant died in the year 1985 and at that time, the father of the defendant and his brothers were undivided and therefore, the “A” schedule property is an ancestral property of the defendant; that the passage was also given for development and ultimately, if the plaintiffs succeed in the suit, it would be difficult for them to reach the “A” schedule property from the main road; that after considering all these aspects, the trial Court rightly granted injunction and that order needs no interference by this Court and hence, prays to dismiss the appeals.

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10. Grant or refusal of a temporary injunction is covered by three principles viz., (1) if the plaintiff has made out a prima facie case. It is a case to be made out by proper and sufficient material. (2) if the balance of convenience is in his favour i.e., it would be greater inconvenience to the plaintiff if the injunction is not granted than the inconvenience which the defendant or person claiming through him would be put to if the temporary injunction is granted. In other words, the comparative mischief or inconvenience which is likely to flow from withholding the injunction will be greater than that which is likely to arise from granting it, (3) if the plaintiff suffers irreparable injury. The Court’s interference is necessary to protect him from that species of injury which the Court calls irreparable before his legal rights can be established on trial. These aspects have been clearly discussed in the decision relied upon by the learned counsel for the appellants in Kishorsinh Ratansinh Jadeja v. Maruti Corporation and others^[1] wherein it is held at para No.36 as under:

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“It is well established, that while passing an interim order of injunction under Order 39 Rules 1 and 2 CPC, the court is required to consider three basic principles, namely,

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(i) prima facie case; (ii) balance of convenience and inconvenience; and

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(iii) irreparable loss and injury.

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None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22.4.2008 and 7.5.2008, nor has the High Court taken into account the long silence on the part of Respondent 1 Corporation in filing a suit after 19 years.”

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Bearing the above principles in mind, it has to be seen as to whether the trial Court has exercised its discretion in granting injunction keeping in mind the well established principles or not.

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11. It is not in dispute before this Court that the defendant got “A” schedule property by virtue of the compromise decree, dated 31.12.1999, in O.S.No.528 of 1999. Relevant portion of the said compromise decree reads as under:

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“Sri Sayam Maisaiah died joint and undivided with his sons on 29.1.1984. Thereafter Sri Sayam Nageshwar Rao, father of the 7^th defendant died joint and undivided with his brothers in 1985 survived by his only son the 7^th defendant. The 7^th defendant has been residing with his paternal uncles as a member of the joint family.”

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Basing on the above recital, learned counsel for the plaintiffs contended that eight members purchased the property to an extent of 2312 sq.yds. of site in Public Gardens Road, Hyderabad under registered sale deed – Ex.A-1, dated 27.6.1975. Admittedly, the father of the plaintiffs is not one of the vendees of Ex.A-1. Whether the property covered under Ex.A-1 is the self acquired property of other brothers of Maisaiah and whether that property was purchased from out of the joint family nucleus of all the sons of Maisaiah or not are required to be decided in the suit itself and not at this stage. By virtue of the aforementioned compromise decree, the defendant got a share to an extent of 231.10 sq.yards. However, learned counsel for the plaintiffs seriously disputed about the compromise decree because it does not bind the plaintiffs, as the plaintiffs are not parties to the said compromise decree. However, considering the fact that the father of the plaintiffs is not one of the vendees to the Ex.A-1 document, the issue with regard to whether that property belongs to the joint family property of late Sayam Nageshwar Rao or not is required to be decided in the suit itself.

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12. Coming to the point of balance of convenience, the entire extent of 2312 sq.yards of site was divided among all the eight sharers by virtue of a plan appended to the aforementioned compromise decree. By virtue of this plan, the “E” schedule to an extent of 231.10 square yards fell to the share of the defendant. It seems that all the sharers entered into a development agreement with a developer whereunder all the owners of land would get 60% share whereas the developer would get 40% share. As seen from this plan, an area of 172 feet width and 25 feet length was earmarked for a common passage.

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Contention of the learned counsel for the plaintiffs is that as the entire property was given to a developer for development, there is no access for the plaintiffs to reach the plot, as per this plan, in case the plaintiffs succeed in the suit. But when this common passage along with the other shares was given to the developer, definitely, the defendant would get higher share in the process of development agreement including the common area for all the “A” to “H” plots. In such a case, it would be an additional advantage for the plaintiffs in case they succeed in the suit if the property is given for development. Therefore, no irreparable loss or injury would be caused to the plaintiffs if the property is being developed by the developer.

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13. Furthermore, the defendant gave an unconditional undertaking affidavit to the effect that if ultimately, the plaintiffs succeed in the suit, he will not alienate his share that may be allotted to him in pursuance of the development agreement. To that effect, a memo was also filed into the Court but the same has not been taken into consideration by the trial Court. Before this Court, the defendant filed an affidavit in C.M.A.M.P.No.1324 of 2014, which reads as follows:

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“….I further declare and undertake that the share allotted to me shall not be alienated and I will ensure that my portion of the share which is earmarked for me is not alienated so that ultimately if the respondents succeed, they will have their share. I had also filed a memo to this effect before the trial Court….”

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From the undertaking affidavit, it is clear that in case, the plaintiffs succeed in the suit, they would not be put in a disadvantageous position. On the other hand, in case they succeed, they would get a higher share out of the share of the defendant. These aspects of the case have not been taken into consideration by the trial Court. All the three requirements, which are required to be proved for grant of injunction, have not been prima facie established so as to grant injunction. Hence, injunction granted in respect of item “A” schedule property is vacated. However, injunction granted in respect of “B” and

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“C” schedule properties is confirmed.

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14. Accordingly, the Civil Miscellaneous Appeals are partly allowed to the extent indicated above. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in these appeals shall stand closed.

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______________________ JUSTICE K.C.BHANU _______________ JUSTICE ANIS Date: 15.10.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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CIVIL MISCELLANEOUS APPEAL Nos.829, 830, 870 AND 875 OF 2014

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DATE: 15.10.2014

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AMD

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[1] (2009)11 Supreme Court Cases 229

Sayam Krishna v. Sayam. Manjula

Case brief

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Sayam Krishna v. Sayam. Manjula

Case brief

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