Or. 39, rule 1 C.P.C. in specific performance case from not alienating and from not to interfering = When the recital of document stated that no possession was delivered to the vendors , they are not permitted to go and say against the recital of a document and are not entitled for any injunction under Or.39, rule 1 of C.P.C.; if they are in possession, they are not entitled to alter /change the nature of suit schedule property = PETITIONER RESPONDENT UPPULURI RADHIKA VS KAKARLA RAMAKRISHNA JAGADGUR = publshed in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CMA&mno=393&year=2013

Or. 39, rule 1 C.P.C. in specific performance case from not alienating and from not to interfering  = When the recital of document stated that no possession was delivered to the vendors , they are not permitted to go and say against the recital of a document and are not entitled for any injunction under Or.39, rule 1 of C.P.C.; if they are in possession, they are not entitled to alter /change the nature of suit schedule property  = 
In all the suits, interlocutory applications were filed by the respective plaintiffs for the relief of temporary injunction to restrain the respective defendants from alienating the suit schedule properties.  In addition to that, in O.S.Nos.37 and 38 of 2011, applications were filed under Order 39 Rules 1 and 2 C.P.C. to restrain the defendants therein from interfering with the possession of the property.  Batch of applications out of each suit were disposed of through a common order.  The gist thereof is that the purchasers are in possession and enjoyment of the property and they are entitled for the injunctions prayed for by them.  The corresponding reliefs claimed by the defendants in those suits through opponents were denied.  Hence, this batch of civil miscellaneous appeals.=
The relationship between the parties is governed by the respective memoranda of understanding.  
The execution thereof is not disputed.  
A perusal of the same, particularly clause IV thereof, discloses that the possession of the property shall be delivered on payment of the entire consideration at the time of registration of sale deeds.  
The purchasers of the property, however, plead that the possession was delivered on payment of substantial amount of consideration and thereafter, the property was devolved by obtaining permission from the concerned local authority by making huge investments.

Once there is a recital in the memorandum of understanding to the effect that the possession can be delivered only on payment of the entire consideration at the time of registration of the documents, the purchasers thereunder cannot be heard to plead that the possession was delivered to them,       de hors Clause IV.  If that were to be so, there ought to have been a written document stating that possession was delivered. However, even while the possession is supposed to be with the vendors, they cannot be permitted to alienate the property or to alter the same except with the permission of the Court.

Hence, we dispose of all the appeals directing that:

(a)                             the vendors i.e. Uppuluri Radhika, Bhaskara Lakshmi and Atchyuta  Vardhini shall not alienate the suit schedule property or alter the nature thereof, particularly in respect of structures if any, without specific permission of the Court; 
(b)                             the purchasers, namely K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru shall not interfere with the possession of the original owners vis-à-vis the property during the pendency of the suits; and
(c)                              The trial Court shall take up the suits for hearing as early as possible.

The miscellaneous petitions filed in these appeals shall also stand disposed of. 
CMA 393 / 2013

CMASR 17779 / 2013
PETITIONERRESPONDENT
UPPULURI RADHIKA  VSKAKARLA RAMAKRISHNA JAGADGURU
PET.ADV. : KUMARI G K V DRESP.ADV. : 
SUBJECT: ORDER 43DISTRICT:  WEST GODAVARI

THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE  S.V. BHATT

C.M.A. Nos. 388, 389, 390, 391, 392, 393, 394, 395, 396, 397,

398 and 399  of 2013



COMMON JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)


            In this batch of appeals, common question of fact and law are involved. Hence, they are disposed of through a common judgment.

          Uppuluri Radhika and her two sisters, by name Bhaskara Lakshmi and Atchyuta Vardhini had fairly vast extent of land being Acs.9.00 in Survey No.345 of Jangareddygudem Village and Mandal, West Godavari District. Uppuluri Radika executed two memoranda of understanding in favour of K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru proposing to sell Acs.2.00 each of the said land. Her sisters executed memoranda of understanding in favour of brothers of Kakarla Anantha Lakshmi, Kakarla Rama Krishna Jagadguru and Kakarla Swamiji in respect of Acs.2.50 cents of land.  Similarly, K.Atchyuta Vardhini executed memorandum of understanding in favour of Anantha Lakshmi in respect of Acs.2.50 cents of land.  The memoranda of understanding incorporated several clauses as regards payment of consideration, delivery of possession and nature of enjoyment of the property.
While Kakarla Ramakrishna Jagadguru and his brothers and sister filed four separate suits for specific performance of memoranda of understanding in the Court of the Additional District Judge, West Godavari, being O.S.Nos.32, 33, 40 and 41 of 2011, two sisters of Radhika filed O.S.Nos.37 and 38 of 2011.

In all the suits, interlocutory applications were filed by the respective plaintiffs for the relief of temporary injunction to restrain the respective defendants from alienating the suit schedule properties.  In addition to that, in O.S.Nos.37 and 38 of 2011, applications were filed under Order 39 Rules 1 and 2 C.P.C. to restrain the defendants therein from interfering with the possession of the property.  Batch of applications out of each suit were disposed of through a common order.  The gist thereof is that the purchasers are in possession and enjoyment of the property and they are entitled for the injunctions prayed for by them.  The corresponding reliefs claimed by the defendants in those suits through opponents were denied.  Hence, this batch of civil miscellaneous appeals.

Heard the learned counsel for the appellants and the learned counsel for the respondents, who filed caveat.

The relationship between the parties is governed by the respective memoranda of understanding.  The execution thereof is not disputed.  A perusal of the same, particularly clause IV thereof, discloses that the possession of the property shall be delivered on payment of the entire consideration at the time of registration of sale deeds.  The purchasers of the property, however, plead that the possession was delivered on payment of substantial amount of consideration and thereafter, the property was devolved by obtaining permission from the concerned local authority by making huge investments.

Once there is a recital in the memorandum of understanding to the effect that the possession can be delivered only on payment of the entire consideration at the time of registration of the documents, the purchasers thereunder cannot be heard to plead that the possession was delivered to them,       de hors Clause IV.  If that were to be so, there ought to have been a written document stating that possession was delivered. However, even while the possession is supposed to be with the vendors, they cannot be permitted to alienate the property or to alter the same except with the permission of the Court.

Hence, we dispose of all the appeals directing that:

(a)                             the vendors i.e. Uppuluri Radhika, Bhaskara Lakshmi and Atchyuta  Vardhini shall not alienate the suit schedule property or alter the nature thereof, particularly in respect of structures if any, without specific permission of the Court; 
(b)                             the purchasers, namely K.Swamiji Suryanarayana and Kakarla Ramakrishna Jagadguru shall not interfere with the possession of the original owners vis-à-vis the property during the pendency of the suits; and
(c)                              The trial Court shall take up the suits for hearing as early as possible.

The miscellaneous petitions filed in these appeals shall also stand disposed of. 

 

______________________                                                                                            
                                                                  L. NARASIMHA REDDY,J
                                                                   

                                                             

______________________                                                                                       
                                                                     S.V. BHATT,J

Dt:30.04.2013

kdl
         


         
                                                                  














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.