Since the appellant/defendant was creating problems in the plaint schedule property, the respondents/plaintiffs, apprehending that the appellant/defendant may proceed with construction or alienate the property or make alterations, filed three interlocutory applications as noted above, pending disposal of the suit in O.S.No.350 of 2014 filed by them for specific performance. As per the commissioner’s report, the plaint schedule property had fallen to the share of the appellant/defendant. In view of the above, it is an admitted fact that the appellant/defendant has not executed the registered sale deed in terms of the agreement to sale dated 11.1.2008. More over the appellant/defendant had received the total sale consideration of Rs.35,56,000/-. For the foregoing discussion and in the result, the Civil Miscellaneous Appeals are dismissed being devoid of merits.
HONOURABLE SRI JUSTICE SURESH KUMAR KAIT
AND
HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
CIVIL MISCELLANEOUS APPEAL Nos. 42,44 AND 46 OF 2017:
COMMON JUDGMENT: (Per HON’BLE SRI JUSTICE SURESH KUMAR KAIT)
Since all these appeals have arisen out of a common order passed by the Court below in three different Interlocutory Applications in O.S.No.350 of 2014, therefore, we have decided to dispose of these three appeals by this common order. Heard Sri C.V.R. Rudra Prasad, learned Counsel appearing on behalf of the appellant and Smt. A. Padma, learned Counsel appearing on behalf of respondents. Respondents herein/plaintiffs filed I.A.No.920 of 2014 in O.S.No.350 of 2014 under Order 39 Rules 1 and 2 read with Section 151 CPC seeking to grant ad interim injunction directing the appellant herein/defendant not to make any construction in the plaint schedule property until disposal of the main suit. In I.A.No.1522 of 2014 in O.S.No.350 of 2014 filed under Order 39 Rules 1 and 2 read with Section 151 CPC, the respondents herein/plaintiffs sought a direction to the appellant herein/defendant not to make any alterations in the petition schedule property in Sy.No.57 admeasuring to an extent of 700 square yards.
2
In I.A.No.333 of 2014 in O.S.No.350 of 2014 filed under Order 39 Rules 1 and 2 read with Section 151 CPC, the respondents herein/plaintiffs sought ad interim injunction restraining the appellant herein/defendant from alienating the plaint schedule property. It is not in dispute that the respondents/plaintiffs entered into a develop agreement cum irrevocable GPA on 21.01.2004 with D. Pochaiah, D.Suresh and D. Srinivas who are owners of the land bearing Municipal H.No.6-10-113/2/1 in Sy.No.64 admeasuring 603 square yards situated at Vinayaka Nagar, Balnagar Village and Mandal, Kukatpally, Ranga Reddy District. Pursuant to the said agreement, the respondents/plaintiffs constructed 19 apartments in the name of ‘Ramya Residency’. At the time of execution of said GPA, the owners and other public are utilizing the plaint schedule property i.e., Sy.No.57 as a rastha/pathway since 1999 onwards. Accordingly, the respondents/plaintiffs submitted the lay out plan which was approved by the Greater Hyderabad Municipal Corporation and the rastha/pathway is existing. At the time of entering into development agreement, the owners informed that the said rastha/pathway is the way to reach the site (Ramya Residency). The respondents/plaintiffs constructed the Ramya Residency after taking all necessary permissions from Greater Hyderabad Municipal Corporation and completed the construction in the year 2006. When the construction of Ramya Residency was
3
about to completion, the respondents/plaintiffs came to know that the rastha/pathway does not belong to thier land owners and the same is involved in litigation and it belongs to the appellant/defendant and his family members. Meanwhile, the appellant/defendant approached the respondents/plaintiffs to sell the plaint schedule property admeasuring 700 square yards in Sy.No. 57. For the sake of residents, to use the said rastha/pathway without any obstruction, the respondents/plaintiffs accepted to purchase the said land from the appellant/defendant and entered into an agreement of sale on 11.1.2008 for purchasing 700 square yards which is adjacent to the property of Ramya Residence for a sale consideration of Rs.35,56,000/- and paid the entire sale consideration in three installments. In the said agreement, the appellant/defendant made a clause under Clause No.5 that after clearing the pending suit proceedings, the sale deed would be executed. It is also not in dispute that the disputes inter se between the appellant/defendant and his family members were adjudicated in the suit in O.S.No.183 of 1990 by the learned II Additional Senior Civil Judge, LB Nagar, Ranga Reddy District by way of judgment and decree dated 11.6.1999, however, till date, the appellant/defendant did not execute the sale deed in terms of the agreement to sale dated 11.1.2008. Since the appellant/defendant was creating problems in the plaint schedule property, the respondents/plaintiffs, apprehending that the appellant/defendant may proceed with construction or alienate the property or make
4
alterations, filed three interlocutory applications as noted above, pending disposal of the suit in O.S.No.350 of 2014 filed by them for specific performance. It is submitted by the learned Counsel appearing on behalf of the appellant/defendant that the agreement entered into by the respondents/plaintiffs with D.Pochaiah, D. Suresh and D.Srinivas was in respect of the land bearing Municipal H.No.6-10-113/2/1 in Sy.No.64 admeasuring 603 square yards as noted above. However, the said agreement was nothing to do with the land in Sy.No.57, which belongs to the appellant/defendant. Learned counsel further submits that the respondents/plaintiffs have created wrong impression to the Court below that they entered into agreement in respect of the land in Sy.No.57 which is the part of Sy.No.64, to which D.Pochaiah, D. Suresh and D.Srinivas, were owners and accordingly the Court below allowed the three interlocutory applications in favour of the respondents/plaintiffs and against the appellant/defendant. This Court specifically put a query to the learned Counsel for the appellant/defendant as to whether the respondents/plaintiffs entered into agreement with the appellant/defendant on 11.1.2008 for sale of the plaint schedule property for a consideration of Rs.35,56,000/-, to which, he replied in affirmative. The second query put by this Court to the learned Counsel for the appellant/defendant is, whether the total sale
5
consideration of Rs.35,56,000/- has been received by the appellant/defendant, to which, he once again replied in affirmative. It is not in dispute that as per the agreement of sale, the total sale consideration of Rs.35,56,000/- was received by the appellant/defendant and the possession of the land would be delivered at the time of registration of sale deed and the sale deed would be executed after the litigation is settled inter se the appellant and his family members. It is not in dispute that the partition suit in O.S.No.183 of 1990 filed by the appellant/defendant against his family members was decreed in his favour vide judgment and decree dated 11.6.1999 passed by the learned II Additional Senior Civil Judge, LB Nagar, Ranga Reddy District. It is also not in dispute that against the said judgment, appeal in AS.No.2377 of 1999 preferred before this Court was dismissed vide judgment dated 12.08.2008 confirming the judgment and decree of the Court below. Thereafter, in final proceedings in E.P.No.10 of 2012 in I.A.No.1989 of 1999 in O.S. No. 183 of 12990, the learned II Additional Senior Civil Judge, L.B.Nagar, Ranga Reddy District appointed an Advocate Commissioner for partition of the schedule property and the Advocate Commissioner executed the warrant and partitioned the properties. As per the commissioner’s report, the plaint schedule property had fallen to the share of the appellant/defendant. In view of the above, it is an admitted fact that the appellant/defendant has not executed the registered sale deed in
6
terms of the agreement to sale dated 11.1.2008. More over the appellant/defendant had received the total sale consideration of Rs.35,56,000/-. For the foregoing discussion and in the result, the Civil Miscellaneous Appeals are dismissed being devoid of merits. However, it is made clear that the observations made in this judgment shall not influence the Court below in any manner while adjudicating the suit. Miscellaneous petitions pending consideration if any in the Civil Miscellaneous Appeals shall stand closed in consequence. No order as to costs. ------------------------------------------- JUSTICE SURESH KUMAR KAIT ------------------------------------------------ JUSTICE U.DURGA PRASAD RAO DATED 9TH FEBRUARY, 2017. Msnrx
CIVIL MISCELLANEOUS APPEAL Nos. 42,44 AND 46 OF 2017:
COMMON JUDGMENT: (Per HON’BLE SRI JUSTICE SURESH KUMAR KAIT)
Since all these appeals have arisen out of a common order passed by the Court below in three different Interlocutory Applications in O.S.No.350 of 2014, therefore, we have decided to dispose of these three appeals by this common order. Heard Sri C.V.R. Rudra Prasad, learned Counsel appearing on behalf of the appellant and Smt. A. Padma, learned Counsel appearing on behalf of respondents. Respondents herein/plaintiffs filed I.A.No.920 of 2014 in O.S.No.350 of 2014 under Order 39 Rules 1 and 2 read with Section 151 CPC seeking to grant ad interim injunction directing the appellant herein/defendant not to make any construction in the plaint schedule property until disposal of the main suit. In I.A.No.1522 of 2014 in O.S.No.350 of 2014 filed under Order 39 Rules 1 and 2 read with Section 151 CPC, the respondents herein/plaintiffs sought a direction to the appellant herein/defendant not to make any alterations in the petition schedule property in Sy.No.57 admeasuring to an extent of 700 square yards.
2
In I.A.No.333 of 2014 in O.S.No.350 of 2014 filed under Order 39 Rules 1 and 2 read with Section 151 CPC, the respondents herein/plaintiffs sought ad interim injunction restraining the appellant herein/defendant from alienating the plaint schedule property. It is not in dispute that the respondents/plaintiffs entered into a develop agreement cum irrevocable GPA on 21.01.2004 with D. Pochaiah, D.Suresh and D. Srinivas who are owners of the land bearing Municipal H.No.6-10-113/2/1 in Sy.No.64 admeasuring 603 square yards situated at Vinayaka Nagar, Balnagar Village and Mandal, Kukatpally, Ranga Reddy District. Pursuant to the said agreement, the respondents/plaintiffs constructed 19 apartments in the name of ‘Ramya Residency’. At the time of execution of said GPA, the owners and other public are utilizing the plaint schedule property i.e., Sy.No.57 as a rastha/pathway since 1999 onwards. Accordingly, the respondents/plaintiffs submitted the lay out plan which was approved by the Greater Hyderabad Municipal Corporation and the rastha/pathway is existing. At the time of entering into development agreement, the owners informed that the said rastha/pathway is the way to reach the site (Ramya Residency). The respondents/plaintiffs constructed the Ramya Residency after taking all necessary permissions from Greater Hyderabad Municipal Corporation and completed the construction in the year 2006. When the construction of Ramya Residency was
3
about to completion, the respondents/plaintiffs came to know that the rastha/pathway does not belong to thier land owners and the same is involved in litigation and it belongs to the appellant/defendant and his family members. Meanwhile, the appellant/defendant approached the respondents/plaintiffs to sell the plaint schedule property admeasuring 700 square yards in Sy.No. 57. For the sake of residents, to use the said rastha/pathway without any obstruction, the respondents/plaintiffs accepted to purchase the said land from the appellant/defendant and entered into an agreement of sale on 11.1.2008 for purchasing 700 square yards which is adjacent to the property of Ramya Residence for a sale consideration of Rs.35,56,000/- and paid the entire sale consideration in three installments. In the said agreement, the appellant/defendant made a clause under Clause No.5 that after clearing the pending suit proceedings, the sale deed would be executed. It is also not in dispute that the disputes inter se between the appellant/defendant and his family members were adjudicated in the suit in O.S.No.183 of 1990 by the learned II Additional Senior Civil Judge, LB Nagar, Ranga Reddy District by way of judgment and decree dated 11.6.1999, however, till date, the appellant/defendant did not execute the sale deed in terms of the agreement to sale dated 11.1.2008. Since the appellant/defendant was creating problems in the plaint schedule property, the respondents/plaintiffs, apprehending that the appellant/defendant may proceed with construction or alienate the property or make
4
alterations, filed three interlocutory applications as noted above, pending disposal of the suit in O.S.No.350 of 2014 filed by them for specific performance. It is submitted by the learned Counsel appearing on behalf of the appellant/defendant that the agreement entered into by the respondents/plaintiffs with D.Pochaiah, D. Suresh and D.Srinivas was in respect of the land bearing Municipal H.No.6-10-113/2/1 in Sy.No.64 admeasuring 603 square yards as noted above. However, the said agreement was nothing to do with the land in Sy.No.57, which belongs to the appellant/defendant. Learned counsel further submits that the respondents/plaintiffs have created wrong impression to the Court below that they entered into agreement in respect of the land in Sy.No.57 which is the part of Sy.No.64, to which D.Pochaiah, D. Suresh and D.Srinivas, were owners and accordingly the Court below allowed the three interlocutory applications in favour of the respondents/plaintiffs and against the appellant/defendant. This Court specifically put a query to the learned Counsel for the appellant/defendant as to whether the respondents/plaintiffs entered into agreement with the appellant/defendant on 11.1.2008 for sale of the plaint schedule property for a consideration of Rs.35,56,000/-, to which, he replied in affirmative. The second query put by this Court to the learned Counsel for the appellant/defendant is, whether the total sale
5
consideration of Rs.35,56,000/- has been received by the appellant/defendant, to which, he once again replied in affirmative. It is not in dispute that as per the agreement of sale, the total sale consideration of Rs.35,56,000/- was received by the appellant/defendant and the possession of the land would be delivered at the time of registration of sale deed and the sale deed would be executed after the litigation is settled inter se the appellant and his family members. It is not in dispute that the partition suit in O.S.No.183 of 1990 filed by the appellant/defendant against his family members was decreed in his favour vide judgment and decree dated 11.6.1999 passed by the learned II Additional Senior Civil Judge, LB Nagar, Ranga Reddy District. It is also not in dispute that against the said judgment, appeal in AS.No.2377 of 1999 preferred before this Court was dismissed vide judgment dated 12.08.2008 confirming the judgment and decree of the Court below. Thereafter, in final proceedings in E.P.No.10 of 2012 in I.A.No.1989 of 1999 in O.S. No. 183 of 12990, the learned II Additional Senior Civil Judge, L.B.Nagar, Ranga Reddy District appointed an Advocate Commissioner for partition of the schedule property and the Advocate Commissioner executed the warrant and partitioned the properties. As per the commissioner’s report, the plaint schedule property had fallen to the share of the appellant/defendant. In view of the above, it is an admitted fact that the appellant/defendant has not executed the registered sale deed in
6
terms of the agreement to sale dated 11.1.2008. More over the appellant/defendant had received the total sale consideration of Rs.35,56,000/-. For the foregoing discussion and in the result, the Civil Miscellaneous Appeals are dismissed being devoid of merits. However, it is made clear that the observations made in this judgment shall not influence the Court below in any manner while adjudicating the suit. Miscellaneous petitions pending consideration if any in the Civil Miscellaneous Appeals shall stand closed in consequence. No order as to costs. ------------------------------------------- JUSTICE SURESH KUMAR KAIT ------------------------------------------------ JUSTICE U.DURGA PRASAD RAO DATED 9TH FEBRUARY, 2017. Msnrx
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