INJUNCTION = The questions of prima facie case, balance of convenience and irreparable loss are not relevant while making final disposal of the suit for permanent injunction. Those questions are relevant factors only at the time of granting of interim injunction pending disposal of the suit.- In M.Kallappa Setty V. M.V.Lakshminarayana Rao[1], the Supreme Court held that the plaintiff who is in possession of the suit property on strength of his possession, can resist inference from the defendant who has no better title than himself and get injunction restraining the defendant from disturbing his possession.= By the date of suit in the trial Court, there was no house property of the plaintiff in the suit property. The house property might have come into existence after filing of the present suit. That will not clothe with right to obtain permanent injunction in his favour against the 1st defendant.The first defendant’s rights in the suit property became further augmented after the original vendor executed Ex.B-2 registered sale deed on 20.03.2004. By the date of Ex.A-7 Lok Adalat award dated 04.11.2006, the vendor had no rights in the suit property. Further, unfortunately for the plaintiff, the said Lok Adalat award was set aside by this High Court under Article 226 of the Constitution of India in W.P. No.16211 of 2007. As the matter now stands, by virtue of setting aside Lok Adalat award, O.S. No.128 of 2006 was restored to file in the trial Court for specific performance of the alleged agreement for sale dated 25.01.2003. Thus, the plaintiff who has no better right or title to the suit property than the defendant, is not entitled for permanent injunction against him. The plaintiff also failed to prove that he was in possession of the suit property by the date of filing of the suit in the trial Court. I find no error muchless legal error committed the Courts below. I also find that no substantial question of law arises for determination in this second appeal.


IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH
AT HYDERABAD

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No. 96 of 2013

DATE: 15.03.2013

Between:

Vempati Venkateshwar Rao
                                                                                    …… Appellant
And

Nallapati Pandu Ranga Rao and another
…..Respondents

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.96 of 2013


JUDGMENT:


                Unsuccessful plaintiff in both the Courts below is the appellant herein.  
He filed the suit for permanent injunction against the defendants for the plaint schedule property of vacant site with house plot of 2170 Sq. yards bearing Door No.17-185 (Old No.17-140) out of S.No.931/E in Block No.17 of Balajinagar in Kodad village of Nalgonda District. 
 It is the plaintiff’s case that he purchased the suit property from its vendor who is his sister on 25.01.2003 under an agreement for sale and that he filed O.S. No.128 of 2006 in the trial Court for specific performance of the said agreement for sale and that there was compromise between him and his vendor on 04.11.2006 which was culminated into award of Lok Adalat vide Ex.A-7 and 
that he has been making construction in the suit site after obtaining permission from Gram Panchayat and that at that time the defendants’ men interfered with his construction. 
 On the other hand, 
it is the contention of the 1st defendant/1st respondent that the original owner who is sister of the plaintiff executed Ex.B-1 registered agreement for sale-cum-general power of attorney dated 25.03.2003 in his favour and that subsequently she executed Ex.B-2 registered sale deed dated 20.03.2004 in his favour and that his name was mutated in gram panchayat records as per Ex.B-3.  
After trial, the trial Court dismissed the suit; and on appeal, the lower appellate Court confirmed the said decree, which drove the plaintiff to this Court with this second appeal.
                2) This Court noticed the so-called substantial questions of law (a) to (g) mentioned in memorandum of second appeal.  This Court is of the opinion that all the said questions are pure question of facts and there are no questions of law much less substantial questions of law therein.
                3) It is contended by the appellant’s counsel that since the year 2006 he has been in possession and enjoyment of the suit land having his house therein and that therefore he is entitled for permanent injunction. 
 In M.Kallappa Setty V. M.V.Lakshminarayana Rao[1], the Supreme Court held that the plaintiff who is in possession of the suit property on strength of his possession, can resist inference from the defendant who has no better title than himself and get injunction restraining the defendant from disturbing his possession.
                4) In the case on hand,
 the suit site was originally a vacant site.  
After obtaining permission from Gram Panchayat on the basis of Ex.A-7 Lok Adalat award, the plaintiff attempted to start construction of house property.  By the date of suit in the trial Court, there was no house property of the plaintiff in the suit property.  The house property might have come into existence after filing of the present suit.  That will not clothe with right to obtain permanent injunction in his favour against the 1st defendant.
                5) The questions of prima facie case, balance of convenience and irreparable loss are not relevant while making final disposal of the suit for permanent injunction.  
Those questions are relevant factors only at the time of granting of interim injunction pending disposal of the suit.
                6) The first defendant became entitled to the suit property on 25.03.2003 when the plaintiff’s sister who is the original owner executed Ex.B-1 registered agreement for sale-cum-general power of attorney in his favour and delivered possession of the suit property.  
The first defendant’s rights in the suit property became further augmented after the original vendor executed Ex.B-2 registered sale deed on 20.03.2004.  
By the date of Ex.A-7 Lok Adalat award dated 04.11.2006, the vendor had no rights in the suit property.  
Further, unfortunately for the plaintiff, the said Lok Adalat award was set aside by this High Court under Article 226 of the Constitution of India in W.P. No.16211 of 2007.  
Questioning the same, the plaintiff filed Civil Appeal No.20202 of 2008 wherein the Supreme Court delivered judgment dated 19.03.2008 disposing of the same holding that the said Court was not inclined to interfere with the impugned judgment of this Court and commenting that the trial Court may explore possibility of an amicable settlement between the parties.  
As the matter now stands, by virtue of setting aside Lok Adalat award, O.S. No.128 of 2006 was restored to file in the trial Court for specific performance of the alleged agreement for sale dated 25.01.2003.  
Thus, the plaintiff who has no better right or title to the suit property than the defendant, is not entitled for permanent injunction against him.  
The plaintiff also failed to prove that he was in possession of the suit property by the date of filing of the suit in the trial Court.  
I find no error muchless legal error committed the Courts below.  I also find that no substantial question of law arises for determination in this second appeal.
                7) In the result, the second appeal is dismissed with costs.

____________________________
SAMUDRALA GOVINDARAJULU,J
Dt. 15th March, 2013
ksh


[1] AIR 1972 Supreme Court 2299

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.