CMA/1166/2009 of D.V. Siddhartha Vs Maganti Indumati on 31 December 2009

THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA

CIVIL MISCELLANEOUS APPEAL Nos.1166 and 1167 of 2009

Dated:31.12.2009

Between:

D.V.Siddhartha,S/o.D.Vijay Kumar, aged 27 years,Occ:Student, r/o.Flat No.402, Indra Residency, Lane No.2,Ashoknagar, Hyderabad,And others.

…Appellants

and

Maganti Indumati,W/o.M.Vijranath, aged 39 years,Occ:House wife, R/o.3-6-188/A,Himayathnagar, Hyderabad,And others.

…Respondents.

THE HON’BLE SRI JUSTICE V.V.S.RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA

CIVIL MISCELLANEOUS APPEAL Nos.1166 and 1167 of 2009

COMMON JUDGMENT:(per Hon’ble Sri Justice V.V.S.Rao)

The appellants in both the appeals are plaintiffs and therespondents in both the appeals are defendants in O.S.No.205 of2009. These appeals by plaintiffs are against the common order dated01.08.2009 passed by the Court of the II Additional Chief Judge, CityCivil Court, Hyderabad, in I.A.Nos.710 and 711 of 2009. The first ofthese applications was filed for ad interim injunction restraining thedefendants from changing the nature of plaint schedule property andthe other application was filed seeking ad interim injunction restrainingthe defendants from alienating the plaint schedule property. Byimpugned order, the learned trial Court dismissed both the applications. For the sake of convenience the parties hereafter arereferred to by their status in the lower Court.

The case of the plaintiffs is as follows. Plaint schedule land wasallotted by Sri Venkateshwara Co-operative Housing Building Society(hereafter referred to as, the Society) to Sri P.Sreenivasulu Naidu,husband of third defendant. After his death, the Society transferred theplot in the name of third defendant and executed sale deed on17.08.1993. She executed a registered General Power of Attorney(GPA) on 28.08.1991 in favour of defendant No.4, who sold an extentof 800 square yards to plaintiff Nos.1 and 2 represented by their father,plaintiff No.3, under registered sale deed dated 30.08.1993. Theplaintiffs were put in possession. They appointed a watchman. On18.12.2007 defendant No.1 dispossessed the plaintiffs and trespassedinto the petition schedule property proclaiming title. The plaintiffs,therefore, filed a case before the Special Court under the AndhraPradesh Land Grabbing (Prohibition) Act, 1982, being LGC (SR)No.2106 of 2008. The Special Court disposed of the same givingliberty to the parties to approach the civil Court. Therefore, they filedthe suit. They also alleged that defendant Nos.1 and 2 are trying tomake construction on the plaint schedule land and also trying toalienate the property. Therefore, they filed separate applications, oneseeking an injunction restraining alienation and the other restrainingchanging the use of the land.

The first defendant filed the counter affidavit opposing theapplications denying the petition averments including the avermentsmade by the plaintiffs that they purchased the property underregistered sale deed dated 30.08.1993 from defendant No.3represented by her GPA, defendant No.4. They further alleged thatlate Sreenivasulu Naidu, the then Member of Legislative Assembly,was allotted 1200 square yards of land in the Society, but the samewas not identified till two sale deeds were executed by the Society infavour of defendant No.3 on 17.08.1993. Therefore, the execution ofsale deed by defendant No.3 is false. She further alleged thatdefendant No.3 executed sale deed in her favour on 20.11.2007 andput her in possession. Defendant No.1 further alleged that defendantNo.4 might have created GPA, that when the GPA was for an extent of600 square yards, he had already sold 850 square yards in hismother’s name and he could not have executed a sale deed in favourof plaintiff Nos.1 and 2 to an extent of 800 square yards. She alsoalleged that plaintiffs have no prima facie case nor balance ofconvenience. Defendant No.2 remained ex parte.

Analysis

Defendant No.4 filed counter affidavit stating that defendant No.3purchased plot No.80-C admeasuring 1200 square yards including plaint schedule plot under two registered sale deeds dated17.08.1993, that pending execution of such registered sale deeds sheexecuted GPA dated 28.08.1991 appointing him as a lawful attorney,and that he is, therefore, authorized to sell the property covered by theGPA. In furtherance thereof, he sold petition schedule landadmeasuring 800 square yards out of 1200 square yards underregistered sale deed dated 30.08.1993 to the plaintiffs, and therefore,defendant No.3 is bound by the same. He also alleged that sale deeddated 20.11.2007 executed by defendant No.3 in favour of defendantNo.1 is illegal, void ab initio, fraudulent and not binding on theplaintiffs.

During enquiry the trial Court marked Exs.P1 to P34 for plaintiffsand Exs.R1 to R21 for defendants. Ex.P1 is registered GPA dated28.08.1991 and Ex.P2 is the registered sale deed dated 30.08.1993 infavour of the plaintiffs. Ex.R1 is the registered sale deed dated20.11.2007 executed by defendant No.3 in favour of defendant No.1. Ex.R2 is the certified copy of the sale deed dated 31.08.1993 executedby GPA in favour of his mother. Exs.R3 to R20 are documents liketelephone bills, electricity bills, photographs etc., produced bydefendant No.1 to prove possession.

On considering the documentary evidence and rival contentionsthe Court below recorded findings that defendant No.4 had noauthority to sell away the entire extent of plaint schedule land, andtherefore, plaintiffs have no prima facie case of their title for 800 squareyards, that Ex.P2 - sale deed, in favour of plaintiffs executed bydefendant No.4 on behalf of defendant No.3 is not a valid document,and that no power is conferred on the GPA to deal with the propertyunder Ex.P1.

Learned Senior Counsel for the plaintiffs relied on Ex.P1 (GPA),Ex.P2, dated 30.08.1993 (sale deed in favour of plaintiffs) and Ex.R1,dated 20.11.2007 (sale deed in favour of defendant No.1), and submitsthat having regard to the boundaries in all these documents, theproperty which was sold by defendant No.3 through her GPA –defendant No.4, in favour of plaintiffs is one and the same, andtherefore, the Court below was in error in concluding that the plaintiffshave no prima facie case. He points out that even if the area underEx.P2 is shown to be 800 square yards, prima facie, the title of theplaintiffs is valid. Secondly, he would submit that even if the powergranted to defendant No.4 by defendant No.3 is in respect of 600square yards, to that extent the conveyance in favour of plaintiffs for600 square yards is valid and binds the principal. Per contra, learnedSenior Counsel for defendant Nos.1 and 2 submits that when the GPAhad no authority to convey 800 square yards, Ex.P2 – sale deed, is void and cannot confer title on plaintiff Nos.1 and 2 even to the extentof 600 square yards. Nextly, he contends that defendant No.4 wasempowered to deal with plot No.80 which may be different from plotNo.80-C purchased by defendant No.1 from defendant No.3 in 2007. According to the learned Senior Counsel, plaintiffs have no prima faciecase, and therefore, at their instance, defendant No.1 who is therightful owner, cannot be prevented either from enjoying the propertyby raising construction or by alienating the property purchased by herunder Ex.R1.

We have considered the pleadings, the rival submissions andperused the impugned order passed by the Court below. The pointthat arises for consideration is whether plaintiff Nos.1 and 2 havedemonstrated prima facie case, balance of convenience and hardshipwarranting the grant of temporary injunction under Order XXXIX Rules1 and 2 of Code of Civil Procedure, 1908 (CPC).

It is axiomatic that power of the Court to grant injunction insupplementary proceedings is intended to maintain status quopending adjudication of the suit. Such an injunction besides protectingthe competing rights of the opposite parties also enables prevention ofmultiplicity of proceedings like restitution. It is also axiomatic that aparty to the suit seeking temporary injunction has to discharge theburden of showing prima facie case, balance of convenience andhardship. In a suit for declaration and possession of a residential plot,plaintiff can always urge that pending the suit if the defendantconstructs on the disputed land or alienates the property to thirdparties, he would suffer the legal injury which may not becompensated in terms of money. There cannot be any doubt that if thedefendant who ultimately is found to have no title constructs on theland belonging to the plaintiff seeking declaration, more complicationswould arise. Therefore, besides preventing alienation of plaintschedule property to third parties, the Court can always direct tomaintain status quo with regard to nature of the land or with regard to making constructions on the disputed land. For obtaining such anorder which might in given circumstances cause severe hardship todefendant, there should be strong circumstances favouring grant ofinjunction in favour of plaintiff. At that stage, ordinarily, the Court mustavoid going into minute details like the extent/area of the property anddescription of the property.

What is relevant is the details as contemplated by law in Rule 3of Order VII of CPC. This provision requires that when subject matterof the suit is immovable property, the plaint shall contain description ofthe property sufficient to identify it and boundaries or numbers so as toidentify it properly. More often than not that a document is executed by the vendor in favour of the vendee for a given extent as mentioned inthe sale deed but actually when the demised property is localized thearea is either less or more. Merely because the area is more or lessthe conveyance is not rendered void or illegal. When there is adispute with regard to authority to convey the title or the actual extent ofthe area demised under a document the principles referred tohereinabove must govern the situation. We will examine the facts ofthis case keeping the above principles.

There is no doubt that defendant No.3, her two sons and twodaughters executed registered GPA in favour of defendant No.4 on28.08.1991 empowering him, inter alia, to sell plot No.80 in surveyNo.102/10, Hakeempet Village, Golconda Mandal, admeasuring 600square yards or 500 square metres within municipal limits ofHyderabad Ward No.8, Block No.2. There is a serious contention thatwhat is authorized to be sold is different from the property purchasedby defendant No.1 and alternatively when the GPA is authorized to sell600 square yards he conveyed 800 square yards to plaintiff Nos.1 and2. In our considered opinion at interlocutory stage this is not muchrelevant. What is relevant is the factum of defendant No.3 executingregistered GPA in favour of defendant No.4, which is not denied, thefact of GPA executing a registered sale deed Ex.P2 in favour of plaintiffNos.1 and 2, and the fact of defendant No.3 executing registered saledeed long thereafter on 20.11.2007 in favour of defendant No.1. Theboundaries in these documents are very much relevant to consider theissue at this stage. For the sake of convenience, we have noticedthem in the following tabular column.

Boundaries in different documents

From the boundaries in the three documents, on probabilities, we

Conclusion

are convinced that the land/plot which is subject matter of Ex.P1-GPA,Ex.P2-sale deed, and Ex.R1-sale deed is one and the same, thoughEx.P1 mentions 600 square yards. In our considered opinion, it makesno difference even if the area is little more, and merely because of thatit cannot be said that defendant No.4 had no power to execute saledeed on behalf of defendant No.3 in favour of plaintiff Nos.1 and 2. Furthermore, in Ex.P2-sale deed, eastern boundary is mentioned aspart of plot No.80-C of vendor, whereas in Ex.P1 it has been clearlymentioned that the plot on the east is under allotment, presumably toSreenivasulu Naidu. This only means that the entire extent of landallotted to Sreenivasulu Naidu, husband of defendant No.3, is 1200square yards, and a part of it was sold to plaintiff Nos.1 and 2, thoughin the sale deed-Ex.P2 it was mentioned as 800 square yards. Onbalancing the probabilities, we are convinced that what waspurchased by plaintiff Nos.1 and 2 under Ex.P2-sale deed is the sameproperty which was sold subsequently by defendant No.3 in favour ofdefendant No.1. As the plot was already sold way back in 1993 toplaintiff Nos.1 and 2, defendant No.3 could not have again validly soldthe same plot to defendant No.1 under registered sale deed - Ex.R1. Needless to mention that as per Section 48 of the Transfer of PropertyAct, 1882, the transfer by defendant No.3 in favour of defendant No.1being subsequent, shall be subject to the rights created by defendantNo.3 (through her GPA – defendant No.4) in favour of plaintiff Nos.1and 2 earlier, and Ex.R1 does not in any manner invalidate theconveyance under Ex.P2 in favour of plaintiff Nos.1 and 2.

Learned Senior Counsel for defendant Nos.1 and 2 submits thatin view of Section 53 of the Transfer of Property Act the doctrine of lispendens is attracted, and therefore, there may not be a separate adinterim injunction. He also submits that his clients are willing to giveundertaking that they will not claim any equity if ultimately plaintiffssucceed in getting declaration in their favour. In our considered viewthese considerations must not weigh with the Court while consideringthe applications under Order XXXIX Rules 1 and 2 of CPC. Section53 of the Transfer of Property Act does not totally prohibit the transferof property by a party to the suit in favour of third party. It only renderssuch transfer without leave of the Court void. By reason of this, theinterference of third party rights cannot be totally ruled out. Secondly,admittedly, the plaint schedule plot is in prime locality and ifconstruction is permitted pending the suit, either party would suffer,because any construction would involve huge expenditure. Therefore,we do not feel countenanced by the submissions made by defendantNos.1 and 2.

Accordingly, for the above reasons, we set aside the impugned common order, and allow I.A.Nos.710 and 711 of 2009. There shall bead interim injunction in favour of plaintiffs restraining the defendantsfrom alienating the plaint schedule plot and also restraining them fromaltering the nature of the plaint schedule property by raising furtherconstruction thereon.

The Civil Miscellaneous Appeals are accordingly allowed. Wedirect the parties to bear their respective costs.

_______________(V.V.S.RAO, J)

.12.2009vs

________________(B.N.RAO NALLA, J)