CMA/1141/2009 of Yerramreddy Nagendra Prasad Reddy Vs Vaibhav Enclave Apartment Owners Welfare Association, on 29 December 2009

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

C.M.A.No. 1141 of 2009.

JUDGEMENT: (Per BNRN,J)

This Civil Miscellaneous Appeal is directed against the orderand decree dt. 14.9.2009 in I.A.No. 1105 of 2009 in O.S.No. 103 of2009 on the file of the learned V Additional District Judge, Nellore. Bythe order impugned, the learned V Additional District Judge grantedinterim injunction restraining the respondent No.1/defendant No.1 frommaking further construction or activity in the property in question.

The appellant herein is the 1[st] defendant in the suit. Therespondents 1 to 4 have filed the suit O.S.No. 103 of 2009 against theappellant herein and three others seeking for declaration of title overthe suit schedule property and for permanent injunction by declaringthe transactions in respect of the suit schedule property between thedefendant Nos.1 to 4 as invalid. The respondents/plaintiffs also filedI.A.No. 1105 of 2009 along with the suit seeking interim injunctionrestraining the appellant/defendant No.1 from making furtherconstruction or activity in the property, pending disposal of the suit. The learned V Addl. District Judge, Nellore allowed the above I.A. andconsequently granted interim injunction as prayed. Aggrieved by thesame, the present appeal is filed.

For the purpose of disposal of this appeal, it is necessary to referto the averments made in the affidavit filed in support of the petition inI.A.No. 1105 of 2009 in O.S.No. 103 of 2009.

The 4[th] respondent/4[th] defendant in the suit is the owner of anextent of 266.22 ankanams purchased in the year 1999 and he gotconstructed apartments in the said area after obtaining necessary layout from the Nellore Municipality and sold them to different persons, who formed into an Association called ‘Vaibhav Enclave ApartmentOwners Welfare Association’ represented by its PresidentV.Venkatarami Reddy (1[st] plaintiff in the suit). At the time ofconstruction of apartments, an extent of 19.80 ankanams was set apartfor the purpose of parking and a compound wall was also constructedaround the said extent of land. According to the plaintiff, the saidextent of 19.80 ankanams is also part and parcel of total extent of266.22 ankanams and that they are having right, title and interest overthe said extent of land and that this piece of land is situated on theeastern side of the apartments and six gates are provided on easternside for ingress and egress to the flat owners and if this site is blocked,the right of ingress and egress to the flat owners will be curtailed andthat through this piece of land in question, the flat owners have accessto the main road. The 4[th] defendant, who is the original owner of theentire extent of land before construction of apartments settled the saidextent of 19.80 ankanams in favour of Sri.Radhakrishana Reddy undera registered settlement deed dt. 14.11.1987 and that the saidsettlement is not valid and binding on the respondents/plaintiffs as thesame is part and parcel of Apartment enclave. The said RadhakrishnaReddy sold an extent of 11.11 ankanams out of 19.80 ankanams toSmt.N.Sujana (2[nd] defendant) under a registered sale deed dt.4.10.2000 and that when the said Sujana tried to occupy the suitschedule property, the Association of the Apartments Committee fileda suit O.S.No. 1187 of 2001 on the file of I Additional Jr. Civil Judge,Nellore and obtained permanent injunction restraining the said Sujanaand her husband and one Venugopal Reddy. Later, the said Sujanasold the land covered by registered sale deed dt. 4.10.2000 to theappellant/1[st] defendant and delivered possession. The contention ofthe respondents/plaintiffs is that since Sujana against whom theyobtained permanent injunction cannot convey any title to the petitioner

herein and the possession of the appellant over the land in questionamount to trespass. When the appellant started construction in theland in question, the respondents/plaintiffs approached the Municipalauthorities and submitted a representation dt. 17.8.2009 against theillegal construction being made by the petitioner but they did not takeany action against him. While so, the appellant/1[st] defendant filedO.S.No. 678 of 2009 on the file of the I Addl. Jr. Civil Judge, Nellorealong with I.A.No. 798 of 2009 against the respondents/plaintiffs hereinand obtained interim injunction suppressing the decree in O.S.No.1187 of 2001.

The appellant/1[st] defendant filed counter denying all theallegations except admitting the settlement transaction.

The grievance of the respondents/plaintiffs is that theappellant/1[st] defendant after obtaining interim injunction against themin O.S.No. 678 of 2009 made construction in the property in questionwithout obtaining any permission from the Municipal Authorities andthat even after the ex parte interim injunction was vacated on13.8.2009 by the I Addl. Jr. Civil Judge, Nellore, still thepetitioner/defendant No.1 is proceeding with construction. On behalf of the respondents/plaintiffs Ex:A.1 to A.15 are markedand Ex:B.1 is marked on behalf of the respondent/1[st] defendant,before the court below.

The learned V Addl. District Judge, Nellore after appreciating theevidence on record held that the respondents/plaintiffs have primafacie case, balance of convenience and irreparable loss andconsequently granted interim injunction by the impugned order.

We have heard the learned Counsel for both the parties.

It is contended by the learned Counsel for the appellant/1[st]defendant that the court below erroneously held that therespondents/plaintiffs have prima facie case, balance convenience and irreparable loss in their favour without properly appreciating theactual facts. Further, the Court below failed to see that the appellant isthe true owner of the suit schedule property and the vendor of therespondents/plaintiffs had parted his right, title and possession of thesuit schedule property in favour of the predecessor in title of theappellant as early as in 1997 i.e. much prior to the purchase of the flatsand proposed undivided share of land by the respondents 2 to 4 andmembers of respondent No.1 Association. It is further contended thatthe court below ought not to have placed much reliance on the decreein O.S.No. 1187 of 2001 for injunction simplicitor, as the respondentsthemselves have sought for recovery of possession of suit scheduleproperty from the appellant under Section 5 of Specific Relief Act andfor maintaining such a suit, the respondents have to establish bettertitle than the appellant and for granting interim order in favour of therespondents. It is further contended by the learned Counsel for theappellant that as per G.O.Ms.No. 423 dt. 31.7.1998 for raisingstructures in a plot of below 100 sq. mtrs which is part of an approvedlay out or sub-division, no prior permission is required and admittedlythe property purchased by the appellant is only 74.314 sq. mtrs whichis less than 100 sq. mtrs and is part of an approved lay out and as suchno prior sanction for making construction is necessary.

On the other hand, the learned Counsel for the respondentssupported the impugned order.

There is no dispute with regard to the fact that the 4[th] defendantis the owner of the entire extent of 266.22 ankanams. The 4[th]defendant submitted lay out plan for approval for construction in theentire extent of 266.22 ankanams. Ex:A.2 is the approved lay out planand Ex:A.3 is the proceedings of approval issued by the Municipality,Nellore on 14.5.1997. Mere approval of lay out and issuance ofpermission for construction does not confer any title on the owners of

Conclusion

the apartments. The learned District Judge placed reliance on theDecree dt. 24.9.2002 in O.S.No. 1187 of 2001 filed by therespondents/plaintiffs against Sujana and obtained permanentinjunction. The learned District Judge held that since the appellantpurchased the plot in question from the said Sujana and since therespondents/plaintiffs obtained permanent injunction against the saidSujana, the decree operates against the appellant also since hestepped into the shoes of the said Sujana. Admittedly, theappellant/1[st] defendant or any other defendant is a party to the suit inO.S.No.1187 of 2001 and therefore the decree in the above suit doesnot operate against the appellant herein since the Judgment anddecree in the above suit is a judgment in per sona. Further, therespondents/plaintiffs failed to produce any documentary evidence toshow that the suit schedule property is part and parcel of theApartment enclave, except Exs:A.2 and A.3 which are approved planand permission for construction of apartments, which admittedly do notconvey any title to the respondents/plaintiffs. Therespondents/plaintiffs also failed to produce the registered sale deedsexecuted by the 4[th] defendant in their favour in respect of sale of flatsshowing that the suit schedule property is part and parcel of theirapartment enclave. There is no dispute with regard to the fact that the4[th] defendant is the absolute owner and possessor of the entire extentof 266.22 anakanams, which includes the suit schedule property. Since the respondents/plaintiffs failed to prove that the suit scheduleproperty was meant for parking and it is part and parcel of theapartment enclave, it goes without saying that the suit scheduleproperty belongs to the 4[th] defendant and he has every right to disposeof the same as he likes. Further, the learned District Judge failed tosee that the plaintiffs filed the suit for declaration of title and permanentinjunction. The very filing of the suit itself for the above reliefs goes to show that the respondents/plaintiffs are not in possession of the suitschedule property, which is an essential ingredient for grantinginjunction. The learned District Judge ignoring the reliefs for which thesuit was filed, erroneously granted interim injunction, without therebeing any prima facie case, balance of convenience and irreparableloss.

For the foregoing reasons, we hold that the learned V AdditionalDistrict, Nellore gravely erred in granting interim injunction against theappellant/1[st] defendant, which is liable to be set aside. Accordingly,the appeal is allowed and consequently the order and decree dt.14.9.2009 in I.A.No. 1105 of 2009 in O.S.No. 103 of 2009 on the file ofthe V Additional District, Nellore is set aside. There shall be no orderas to costs.

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V.V.S.RAO,J

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B.N.RAO. NALLA,J

29.12.2009.

Krb.

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

C.M.A.No. 1141 of 2009.

Dated: 29.12.2009.