Back
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
C.V. NAGARJUNA REDDY, J.
P. Lakshminarayana & Another
Versus
T. Madhu Babu & Others
Civil Miscellaneous Appeal No. 667 of 2013
Decided On: 10-04-2014
Municipal Corporation Act - Suit schedule property - suit schedule land - Appeal arises out of order appellants herein filed for permanent injunction restraining respondents from interfering with their possession of property bearing Municipal comprised Corporation - It is pleaded case of appellants that one paternal grandfather of respondents cents of land forming part of suit schedule land to one registered sale deed that said Naidu in turn sold square yards to one registered sale deed and that he has gifted remaining extent of land to his daughter and son-in-law gift deed - Petitioners claimed to have purchased entire suit schedule property registered sale deeds executed by daughter and son-in-law of respectively - It is further pleaded case of appellants that since date of their purchase they have been in possession and enjoyment of suit schedule property wherein a nursery is being run that an old structure is in existence and that property is surrounded by a compound wall on all four sides - Seeking partition of items including suit schedule property and said suit was dismissed on holding that there was prior partition - Against same was filed before this Court - This Court disposed of said appeal by judgment and decree whereby this Court has remanded case to lower Court for ascertaining as to items of properties which were available for partition on date of filing of suit –Held, Ordinarily an application for injunction is adjudicated based on elements of prima facie case balance of convenience and irreparable injury - It is disappointing to note that trial Court has not considered any of these elements only ground on which trial Court dismissed application was that when suit schedule property is subject matter of a partition suit for bare injunction without seeking relief of declaration of title is not maintainable – In opinion this reasoning of trial Court is wholly without any basis - Appellants have based their right to be in possession of property on registered sale deeds executed as far back as years - A person whose physical possession is threatened is certainly entitled to seek protection of his possession by seeking relief of injunction - Thus law does not preclude appellants herein from filing a suit for bare injunction despite fact that a preliminary decree has already been passed in favor of respondents - Undisputedly said preliminary decree is subject matter of an appeal wherein appellants have also filed an application for their impalement and said petition is stated to be pending - Respective rights of parties are therefore expected to be adjudicated in pending appeal - If pending appeal appellants purported possession is threatened they are entitled to file suit for injunction simplicitor and that is what they have precisely done – Appeal allowed (Para 5)
1. This civil miscellaneous appeal arises out of order dated 17.07.2013 in I.A.No.3 of 2013 in O.S.No.7 of 2013 on the file of the learned Principal Senior Civil Judge, Tirupati.
2. The appellants herein filed O.S.No.7 of 2013 for permanent injunction restraining the respondents herein from interfering with their possession of the property bearing Municipal Door No.18-8-39C comprised in Sy.No.2/2 situated at Ward No.18, Madhura Nagar, Tirupati Municipal Corporation.
3. It is the pleaded case of the appellants that one T. Munaswamy Naidu, paternal grandfather of respondents 1 to 4, sold 0.28 cents of land, forming part of suit schedule land, to one T.G. Venkatarama Naidu, under Ex.P1 registered sale deed dated 29.04.1981, that the said Venkatarama Naidu, in turn, sold 200 square yards to one R. Madhura Vani under Ex.P2 registered sale deed dated 09.12.1983 and that he has gifted the remaining extent of land to his daughter and son-in-law under Ex.P3 gift deed dated 01.06.1996. The petitioners claimed to have purchased the entire suit schedule property under Exs.P6 and P4-registered sale deeds dated 10.07.2000 and 30.06.2004 executed by the daughter and son-in-law of T.G. Venkatarama Naidu and Madhura Vani respectively. It is the further pleaded case of the appellants that since the date of their purchase, they have been in possession and enjoyment of the suit schedule property, wherein a nursery is being run, that an old structure is in existence and that the property is surrounded by a compound wall on all four sides. That the father of respondents 1 to 4, namely; T. Krishnama Naidu filed O.S.No.61 of 1981, seeking partition of 71 items including the suit schedule property, and the said suit was dismissed on 29.08.1988, holding that there was prior partition. Against the same, A.S.No.200 of 1989 was filed before this Court. This Court disposed of the said appeal, by judgment and decree dated 28.12.2007, whereby this Court has remanded the case to the lower Court for ascertaining as to the items of the properties which were available for partition on the date of filing of the suit. After remand, the trial Court has passed a preliminary decree in respect of 45 items as against 71 items sought for partition and directed that the property shall be divided into 480 shares and respondents 1 to 4 were declared as eligible to claim 225/480th share in all the 45 items. Feeling aggrieved by the said judgement and decree, the other members of the family who were parties to the suit filed A.S.No.810 of 2010 before this Court, wherein an interim order not to pass final decree has been passed and the same is in force. After passing of the preliminary decree, respondents 1 to 4 have sold their purported share of properties in favour of respondents 5 to 8 under Exs.P13 and P14 registered sale deeds dated 14.12.2012 and 15.12.2012 respectively. The appellants have alleged that in pursuance of the said sale deeds, the purchasers have tried to interfere with their possession. Therefore, they have filed the suit for injunction. Pending the suit, they have also filed I.A.No.3 of 2013 for interim injunction.
4. Respondent No.1 filed a counter-affidavit, which was adopted by respondents 2 to 4. Respondent No.7 filed a separate counter-affidavit, which was adopted by respondents 5, 6 and 8. In both the counter-affidavits, they have taken the stand that the purported sale made by Munaswamy Naidu in favour of T.G.Venkatarama Naidu itself was illegal inasmuch as the suit schedule property was held to be joint family property and that the sale deed was executed one day after filing of the partition suit, which is hit by doctrine of lis pendens. It was further pleaded that respondents 1 to 4 who were allotted 225/480th share in the preliminary decree were allegedly entitled to sell the property and accordingly they have sold the property to respondents 5 to 8 under registered sale deeds. They have also filed certified copy of commissioner’s rep
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
