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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
A. VENKATESHWARA REDDY, J.
Penthala Aruna – Appellant
Versus
Kudikala Swamy – Respondent
CMA No.121 of 2018
Decided on : 11-03-2022
Temporary Injunction - Property Dispute - Civil Procedure Code, 1908 - Order-39, Rules-1 & 2 - Section 151 - [Order-39, Rules-1 & 2, Section 151]
Fact of the Case:
The plaintiff filed a suit for declaration of title and cancellation of judgment and decree in OS No.7 of 2006 and for perpetual injunction against the defendant in relation to a house plot. The plaintiff also filed an application for temporary injunction against the defendant to protect her possession over the property. The defendant resisted the application, claiming that the plaintiff was not entitled to temporary injunction as prayed for.
Finding of the Court:
The Court found that the plaintiff failed to establish a prima facie case for temporary injunction as she could not prove her exclusive possession over the property. The Court also noted that the defendant had obtained decrees and possession of the property through due process of law, and therefore, the plaintiff was not entitled to the temporary injunction as prayed for.
Issues: The main issue was whether the plaintiff was entitled to a temporary injunction to protect her possession over the property in dispute.
Ratio Decidendi: The grant of temporary injunction is based on the principles of prima facie case, balance of convenience, and irreparable loss and injury. In this case, the plaintiff failed to establish a prima facie case for temporary injunction, and the balance of convenience was not in her favor. Additionally, the defendant had obtained decrees and possession of the property through due process of law, leading to the denial of the temporary injunction.
Final Decision: The Civil Miscellaneous Appeal was dismissed, confirming the order of the lower court. The plaintiff was not entitled to the temporary injunction as prayed for.
JUDGMENT:
1. This Civil Miscellaneous Appeal is filed assailing the order dated 29.01.2018 in IA No.1105 of 2016 in OS No.162 of 2016 on the file of the II Additional District Judge at Warangal.
2. This IA No.1105 of 2016 was filed under Order-39, Rules-1 & 2 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) by the petitioner/plaintiff against the respondent/defendant. Feeling aggrieved by the dismissal of said application, the plaintiff has filed this Civil Revision Petition.
3. For the sake of convenience, the parties are hereinafter referred to as plaintiff and defendant as arrayed in the original suit.
4. The plaintiff has filed the original suit for declaration of title and cancellation of judgment and decree in OS No.7 of 2006 on the file of the Principal Senior Civil Judge, Warangal and for perpetual injunction against the defendant. Along with the original suit, the above IA is filed for temporary injunction against the defendant and his men from interfering with the possession of the plaintiff over the plaint schedule property – land admeasuring 1325 square yards in Survey No.197/part, a house plot situated at Enumamula Village, Hanamkonda Mandal, Warangal District.
5. i) The main averments of the affidavit filed in support of the application are that the plaintiff is in exclusive possession and enjoyment of the suit property. She let out the same to M/s. M.I.S., a construction company for stocking their cement on monthly rent of Rs.5,000/- per month. She got the suit schedule property levelled through her husband by spending more than Rs.3 lakhs and also got constructed compound wall around the suit land by obtaining permission from the Gram Panchayat, Enumamula village.
ii) It is further stated that the defendant has obtained nominal and collusive decrees against his own son-K. Venkateshwarlu in OS No.7 of 2006 on the file of the Principal Senior Civil Judge, Warangal, in respect of the suit property cancelling the registered gift deed document No.3116 of 2000, dated 05.12.2000 executed by him in favour of his son after expiry of six years. The defendant has also filed another suit OS No.1040 of 2012 on the file of the Principal Junior Civil Judge for the relief of mandatory injunction to dismantle the tin shed existing in the suit land against his own son-K. Venkateshwarlu, fraudulently obtained a decree on 26.02.2013, thereafter filed EP No.635 of 2013 for executing the said decree in OS No.1040 of 2012 for eviction of judgment debtor, K. Venkateshwarlu from the suit schedule property. The executing Court has amended the boundaries of suit schedule property in EP No.635 of 2016 and a direction was issued to the plaintiff to dismantle the tin shed and compound wall.
iii) The executing Court even without considering the counter filed by the husband of the plaintiff in EA No.3 of 2016 allowed the said application directing the bailiff to dismantle the tin shed and compound wall and evict the judgment debtor who was not in possession of EP schedule property. It is a collusive decree and son of the defendant, who is the judgment debtor, has clearly stated that he is not concerned with the suit property, hence prayed for temporary injunction to protect her possession over the suit schedule property.
6. This application is resisted by the respondent/ defendant before the trial Court by filing a detailed counter. He has obtained decree in OS No.7 of 2006 for cancellation of registered gift deed dated 05.12.2000 and also filed another suit in OS No.1040 of 2012, obtained a mandatory injunction against his son, thereafter, filed Execution Petition and that later his son did not contest the said Execution Petition. During delivery of possession, the plaintiff’s husband has created lot of hurdles. The Executing Court after hearing both the parties directed the bailiff to deliver the vacant possession. He has filed OS No. 7 of 2006 for cancellation of registered gift deed executed in favour of his son and that
The court ruled that temporary injunction requires a showing of prima facie title, balance of convenience, and credible evidence of possession, with registered sale deeds being prioritized over notar....
A plaintiff must demonstrate a prima facie case, balance of convenience, and potential hardship to obtain a temporary injunction under Order XXXIX Rules 1 and 2 of CPC.
The plaintiff's claim for possession, sought 29 years after the date of the registered sale deed, is barred by limitation and cannot be permitted.
The grant of temporary injunction is a discretionary remedy and must be based on a prima facie case, balance of convenience, and irreparable injury. The possession of the plaintiffs over the suit lan....
A party seeking a temporary injunction must establish lawful possession, a prima facie case, balance of convenience, and irreparable injury.
The judgment emphasizes the importance of documentary evidence in establishing possession and entitlement to property, and the burden of proof on the party contesting such claims.
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