HON’BLE Dr. JUSTICE K.G.SHANKAR
Civil Revision Petition No.1525 of 2014
Date: 09-7-2014 Between B.Janardhan … Petitioner/Plaintiff and Kadempally Chinna Chinnappa and another … Respondents/ Defendants HON’BLE Dr. JUSTICE K.G.SHANKAR
Civil Revision Petition No.1525 of 2014
Order:
This revision is filed by the plaintiff in O.S.No.31 of 2013. The respondents are the defendants. The plaintiff laid O.S.No.31 of 2013 on the file of the Junior Civil Judge, Narayanpet, Mahabubnagar District for perpetual injunction against the defendants in respect of Plot Nos.31, 32 and 36 in a total extent of 166.66 square yards which is part of Survey No.389/A, Singaram Village.
2. The plaintiff claimed that he is the owner of the plaint schedule property. One Saibanna owned Ac.1-32 guntas of land in Survey No.389/A. He allegedly plotted the same and sold the same to various persons.
The plaintiff purchased Plot Nos.31, 32 and 36 from Saibanna through Ex.P-1 sale deed on 27-12-2008.
The plaintiff allegedly obtained permission from the Gram Panchayat on 04-6-2013 vide Ex.P-4 to construct mulgies. The plaintiff contended that when he started construction as evidenced by Exs.P-6 to P-9 positive photographs, the defendants allegedly interfered with the construction and prevented the plaintiff from making further constructions. They claimed that they purchased 484 sq. yards of site from Saibanna on 07-12-1995 through Ex.R-1 sale deed. The learned counsel for the plaintiff also submitted that the defendants lodged a complaint with the Revenue Divisional Officer (RDO), Narayanpet alleging that the plaintiff was making constructions in agricultural land without obtaining permission for conversion of the same as house plots. The learned counsel for the plaintiff however contended that the RDO, after due enquiry found that the conversion of the agricultural lands was in violation of the rules and imposed a penalty vide Ex.R-9 proceedings dated 09-12- 2009. It is the contention of the plaintiff that regularization fee was paid by the plaintiff and that the conversion consequently was regularized.
3. It is the contention of the learned counsel for the plaintiff that the plaintiff is in possession of the plaint schedule property and has been making constructions. He filed I.A.No.105 of 2013 in O.S.No.31 of 2013 before the Junior Civil Judge, Narayanpet. The Court initially granted ad interim injunction in favour of the plaintiff. After notice to the defendants and after contest, the Trial Court made ad interim injunction absolute pending disposal of the suit through orders dated 07-10-2013. The defendants questioned the orders of the Trial Court in I.A.No.105 of 2013 before the Senior Civil Judge, Narayanpet through C.M.A.No.4 of 2013. Through the impugned order dated 24-3-2014, the learned Senior Civil Judge modified the orders in I.A.No.105 of 2013 in O.S.No.31 of 2013 and directed both sides to maintain status quo. It is that order which is now assailed by the plaintiff.
4. The learned counsel for the plaintiff submitted that by the date of Ex.R-1 sale deed, dated 07-12-1995, the property of Saibanna was not plotted with approved plan, so much so, the sale deed of the 1st defendant did not refer to any plot numbers. He further submitted that the abuttals of the sale deed of the 1st defendant (Ex.R-1) shows that the property covered by the sale deed of the 1st defendant ought to be in a corner. The abuttals of the property purchased by the 1st defendant under Ex.R-1 are: East – land of Venkat Ramulu and Saibanna, West – Saibanna, North – Saibanna and South – road.
The abuttals of the sale deed of the plaintiff are: Road on North and South, Plot Nos.33 and 35 on the East and Plot Nos.30 and 37 on the West. I am not able to conclude from the abuttals that the property purchased by the 1st defendant is not the plaint schedule property.
5. The learned counsel for the plaintiff placed various documents in support of his contention. It may however be pointed out that there is a dispute as to the identity of the property. Curiously, the plaintiff is not disputing the title deed of the 1st defendant and the defendants are not disputing the title deed of the plaintiff. The dispute is about the localization of the land. Perhaps, evidence is necessary to determine whether the property in dispute is the property covered by Ex.P-1 or the property covered by Ex.R-1. In that view of the matter, the Appellate Court considered that it would be appropriate to grant status quo.
6. The learned counsel for the plaintiff placed reliance upon G.Trinadha Swamy v. Gandham
[1]
Satyanarayana . In that case, a learned Single Judge of this Court held that in case of rival contentions, if probability is in favour of the plaintiff being in possession, Court should grant temporary injunction in favour of the plaintiff. It is the contention of the learned counsel for the plaintiff that the probabilities are that the plaintiff is not only the owner of the property but is the possessor of the same. He submitted a third party affidavit by a neighbouring landlord who claimed that the plaintiff is in possession of the property. There does not appear to be any suspicion that the plaintiff is in possession of the property. So far as the title is concerned, there is any amount of ambiguity as to whether the property covered by the plaint schedule property is the property purchased by the plaintiff or by the 1st defendant.
7. Indeed, the plaintiff produced the Layout Plan in respect of Survey No.389, which was duly authorized by a retired Deputy Inspector of Survey. The same shows that Plot Nos.31, 32 and 36 abut each other. Plot Nos.31 and 32 have road on the Southern side whereas Plot No.36 has internal road on the Northern side.
In the sale deed, it was recorded that there was road on the Northern and the Southern sides. Further, the photographs show that the plaintiff made some constructions and stopped the constructions at that level.
8. The learned counsel for the plaintiff submitted that where the plaintiff prima facie shows that he is in possession and where he also holds a title deed, the plaintiff would suffer irreparable loss in the event the plaintiff is restrained from making construction till the disposal of the suit. There cannot be any doubt that the plaintiff would suffer irreparable loss in the event constructions are stopped at this stage. At the same time, if the plaintiff is allowed to make constructions, he may take advantage by the same and claim equities subsequently. Balance of convenience is in favour of the plaintiff where maintaining status quo would amount to keeping the plaintiff in possession of the property albeit the plaintiff would not be allowed to make constructions.
9. However, unless the plaintiff establishes prima facie case, mere balance of convenience and irreparable loss in favour of the plaintiff cannot allow the plaintiff to obtain temporary injunction. So far as the prima facie case is concerned, it is not clear as to who is the owner of the property as on today. However, a reading of the authenticated Layout Plan coupled with the abuttals of the sale deed under Ex.P-1 tallies with the claim of and the title of the plaintiff. The defendants, on the other hand, are not able to localize their land from the abuttals in Ex.R-1 with the Layout Plan. In that view of the matter, I consider that prima facie case is also in favour of the plaintiff. Consequently, it would be appropriate to grant temporary injunction in favour of the plaintiff with an embargo that any constructions that are made by the plaintiff are subject to the result of the suit and that the plaintiff cannot claim equities in the event he ultimately fails in the suit.
10. The learned counsel for the defendants placed reliance upon Pogiri Jagannadha Rao v. Gorla
[2]
Venkatinaidu . In that case, the plaintiff relied upon pattadar passbook and land revenue receipts which were issued just prior to the institution of the suit. In an earlier litigation between the same parties, the claim of the plaintiff that he was in possession of the property was disbelieved. A learned single Judge of this Court held that the plaintiff would not be entitled to temporary injunction. However, this case has no application to the facts of the present case, where the title deed of the plaintiff itself is of the year 2008.
11. In Aravapalli Narayana v. Gram Panchayat,
[3]
Kamareddy , a Division Bench of this Court observed that the sanction for construction of a house by the Gram Panchayat does not confer title on the property.
Be it noted that the plaintiff is seeking perpetual injunction on the ground that he is the title holder and is also in possession of the property. He does not base its claim on the strength of permission from the Municipality or the Gram Panchayat.
12. In C. Rajendra Prasad v. G.M. Corporation[4] relied upon by the learned counsel for the defendants, where there was scramble for possession between the plaintiff and the defendant, a learned single Judge of this Court held that it would not be a fit case for grant of temporary injunction and that it would be appropriate to appoint a receiver. In the present case, neither of the parties is denying the title of the other side. The dispute in fact is regarding the identity of the property.
The plaintiff claims that he is in possession of the property which he claims to have purchased under Ex.P.1. The first defendant contended that the property over which the plaintiff is making the claim was purchased by the first defendant under Ex.B.1.
Thus, there was no question of any scramble for possession to consider it appropriate to deny temporary injunction in favour of the plaintiff.
13. In Kathala Yellaiah v. Kathala Chandraiah
[5]
, it was observed that the plaintiff has to establish his exclusive possession over the plaint schedule property to obtain a temporary injunction. When the documents filed by the plaintiff did not disclose his possession over the property, the denial of the temporary injunction by the trial Court was confirmed by the appellate Court.
In the present case, for the reasons already set out, the plaintiff has prima facie established his possession over the plaint schedule property. The question of declining to grant temporary injunction on the ground that the plaintiff did not prima facie establish his possession, therefore, did not arise.
14. In Movva Rama Krishna v.
[6]
D. Venkayyanayudu there was no clarity as to who between the plaintiff and the defendant was in possession of part of the plaint schedule property.
This Court held that the factual controversy shall have to be decided on appreciation of other oral and documentary evidence and that it would not be appropriate to grant temporary injunction in favour of one of the parties in such circumstances.
15. In Yerra Venkatesh v. Nathi Mallesh
[7]
, in a suit for perpetual injunction, there were discrepancies in the description of survey number in the sale deed relied upon by the plaintiff. A learned single Judge of this Court held that in the absence of clear proof that the plaintiff was in possession of the suit schedule property as on the date of the suit, the plaintiff was not entitled to temporary injunction.
16. In the present case, I venture to repeat that the plaintiff prima facie established his possession over the suit schedule property. This is evident from copy of the lay-out plan together with the abuttals as referred to in Ex.P-1 sale deed. I, therefore, accept the contention of the learned counsel for the petitioner/plaintiff that the plaintiff has prima facie established his case. As already pointed out, balance of convenience and irreparable loss are also in favour of the plaintiff.
17. Consequently, this civil revision petition is allowed. The plaintiff in O.S.No.31 of 2013 on the file of the Junior Civil Judge, Narayanpet is granted temporary injunction in respect of the plaint schedule property therein permitting him to make any constructions in the schedule premises in accordance with the rules and regulations. Such constructions, if any, made by the plaintiff shall be subject to the result of the suit. In the event the plaintiff ultimately fails in the suit, he cannot seek for equities nor can he seek for the value of the constructions made by him. The miscellaneous petitions, if any, pending in this revision shall stand closed.
Dr. K.G.SHANKAR, J.
09th July, 2014. Ak HON’BLE Dr. JUSTICE K.G.SHANKAR
Civil Revision Petition No.1525 of 2014
09th July, 2014. (Ak)
[1] 2006 (4) ALD 781
[2] 1999 (6) ALD 778
[3] 1990 (3) ALT 568 (D.B.)
[4] 2001 (4) ALD 181
[5] 1999 (4) ALD 233
[6] 2007 (4) ALD 200
[7] 2012 (1) ALD 142