CMA/793/2017 of M RAJESWARADAYAL AT RAJESH, KAKINADA AND 1 OTHER Vs R V L N JAGAPATHI RAJU, E.GODAVARI DIST AND 3 OTHERS on 29 December 2023

1. Madiki Rajeswaradayal @ Rajesh,, S/o late Chandra Rao, aged about 45years, Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]years, Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]

2. Madiki Rajendra Simhjee @ Rajendra,, S/o late Chandra Rao, aged about 44years. Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]years. Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]

...Appellants/Respondent Nos. 4&3 &4/Defendant Nos.3 & 4AND

1. Raja Vatsavai Lakshmi Narasimha Jagapathi Raju, S/o Raja Vatsa China^9®*^ about 75 years, cultivation, R/o Door Nb^9®*^ about 75 years, cultivation, R/o Door Nb20-1-64, Peddapuram, East Godavari District.

^MVenkanna, Aged about 70 years, cultivation, R/o[Door]No. 3-11, Kothapadu, Rangarnpeta Mandal, East Godavari District.No. 3-11, Kothapadu, Rangarnpeta Mandal, East Godavari District.

3. Madiki Chandra Rao (DIED)

4. Madiki Paramjyothi (DIED)

...Respondents

Appealfiled Under Order 43of Rule1of CPCof AndhraPradeshCharitable and Hindu Religious Institutions & Endowments Act 1987against theorder dated 25.04.2017 passed in I.A No.122 of 2017 in A.S. No. 3 of 2017 onthe file of the Senior Civil Judge Peddapuram, East Godavari District.

This appeal coming on for hearing and upon perusing the grounds of appeal,the Judgment and Decree of the Lower Court and the material papers in the Suit andupon hearing the arguments of Sri T.V. Jaggi Reddy for the Appellantandof SriLakshmi Shankar Rayapureddy,Advocate for the Respondent No.1 and RespondentNo.2 None appeared.

This Court doth Order and decree as follows:

1. That the Appeal be and hereby is allowed

2. That the order dated 03.04.2017 passed in I.A. No.[122][ of][ 2017][ in][ A.S.][ No.][ 3]of 2017 on the file of the Senior Civil Judge, Peddapuram be and hereby isset aside.of 2017 on the file of the Senior Civil Judge, Peddapuram be and hereby isset aside.

3. That there shall be no order as to costs.

To,

Trtssb

SDI- K. TATA RAODEPUTY REGISTRAR

//TRUE COPY//L^iSECTlON^FICER

1. The Senior Civil Judge, Peddapuram, East Godavari District.

2. Three CD copies.

HIGH COURT

DATED:29/12/2023

DECREE

CMA.No.793 of 2017

4- Coprcsz8h^D6L

ALLOWING THE CMA

.\j0 9 MAY 2029in>’l\'2.CdM-i:% i£v£^SpATCH':fST«r

I.

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

FRIDAY, THE TWENTY NINETH DAY OF DECEMBERTWO THOUSAND AND TWENTY THREE

PRESENT

THE HONOURABLE DR JUSTICE K MANMADHA RAO

CIVIL MISCELLANEOUS APPEAL No.793 OF 201>7

Appealfiled Under Order 43of Rule1of CPCof AndhraPradeshCharitable and Hindu Religious Institutions & Endowments Act 1987against theorder dated 25.04.2017 passed in I.A No.122 of 2017 in A.S. No. 3 of 2017 onthe file of the Senior Civil Judge Peddapuram, East Godavari District.

Between:

1. Madiki Rajeswaradayal^. @ Rajesh,.S/o late Chandra Rao, aged about 45years. Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]years. Cultivation, R/o Door No. 68-8-1/3A, Ashok Nagar,[Kakinada.]

2. Madiki Rajendra Simhjee @ Rajendra,, S/o late Chandra Rao, aged about 44years. Cultivation, R/o Door No. 68-8-1/3A. Ashok Nagar,[Kakinada.]...Appellants/Respondent Nos. 4&3 &4/Defendant Nos 3 & 4ANDyears. Cultivation, R/o Door No. 68-8-1/3A. Ashok Nagar,[Kakinada.]...Appellants/Respondent Nos. 4&3 &4/Defendant Nos 3 & 4AND

1. Raja Vatsavai Lakshmi Narasimha Jagapathi Raju, S/o Raja Vatsa ChinaSeetharamajagapathi Raju, Aged about 75 years, cultivation, R/o Door Nb20-1-64, Peddapuram, East Godavari District.Seetharamajagapathi Raju, Aged about 75 years, cultivation, R/o Door Nb20-1-64, Peddapuram, East Godavari District.

2. Venkanna, Aged about 70 years, cultivation, R/o Door

NO. 3-11, Kothapadu, Rangarnpeta Mandal, East Godavari District3.Madiki Chandra Rao (DIED)4.Madiki Paramjyothi (DIED)4.Madiki Paramjyothi (DIED)

4. ...Respondents

LA. NO: 1 OF 2017fCMAMP. NO: 1307 OF 2017)

Petition under Section 151 CPC praying that in the circumstances statedithe affidavit filedin support of the petition, the High Court may be pleasedsuspend the order dated 25.04.2017 in lA No.122/2017 in AS No.3/2017on the fileof the Senior Civil Judge, Peddapuram, East Godavari District pending disposalofthe above CMA.[n]

Counsel for the Appellants: SRI T. V. JAGGI REDDYCounsel for the Respondent No.1: SRI LAKSHMI SHANKARRAYAPUREDDYCounsel for the Respondent No.2: None Appeared The Court made the following: JUDGMENT

HON’BLE DR. JUSTICE K. MANMADHA RAOCIVIL MISCELLANEOUS APPEAL No.793 of 2017

JUDGMENT;

The present Civil Miscellaneous Appeal is filed by[the]appellants aggrieved by the order dated 03.04.2017[passed][ in]l.A.No.122 of 2017 in A.S No.3 of 2017 on the file[of][ the][ Senior]Civil Judge, Peddapuram.

2. The impugned application in I.A No. 122 of 2017[in]A.SNo.3of 2017 wasfiledbythepetitioner/plaintiff/1®^respondent under Order 39 Rules1 and 2 and Section151CPC seeking for grant of temporary injunction restraining[the]respondents No.3 and 4/defendants No.3 and 4/the appellantsherein from interfering with is possession and enjoyment[of][ the]plaint schedule property pending disposal of the main[appeal.]

3. The appellants herein are the defendants No.3 and[4]and l®t respondent herein is the plaintiff and the[respondents]No.2 and 3 are the defendants No.l and 2 and 4* respondenthereinis the 5^^ defendant in O.S No.307 of 2007 filedforgrantof specific performanceof agreementof saledated25.8.1993directing the defendants No.l, 3 to 5 toreceivebalance sale consideration and to execute a regular[registered]

sale deed in respect of plaint schedule property in the name ofplaintiff or his nominee within the time to be fixed by theCourt.Originally the plaintiff filed the suit on the allegationthat the respondents/defendants who are the owners of theschedulepropertyagreedtosellthepropertytothedefendant andenteredintoagreementofsalewithinandthereafter thedefendant paid an amount of rs. 10,000/-tothe defendants No.2 to 4 out of balance sale considerationandthe possession was delivered tol^t defendanton11.7.1990.Thereafter l^t defendant executed endorsement on the reverseof agreement of sale.Subsequently they sold the same to theplaintiff after receiving Rs. 11,000/- from the plaintiffanddelivered the possession of the said land to the plaintiff andexecuted Ex.A3 transfer endorsement dated 25.8.1993andsince then the plaintiff is in possession and enjoyment[of][ the]same.After full pledged trial, the suit was dismissed by thetrial court on the ground of delay. Aggrieved by the same, theplaintiff preferred an appeal vide A.S.No.3 of 2017 on the file ofthe Court below.Taking advantage of dismissal ofsuit, therespondents/defendants are interfering with the possessionand enjoyment of the plaintiff over the schedule property.Hence,theapplication wasfiledforgrantof temporary

injunctiontill disposal of the main appeal. The samewasallowed by the trial Court and granted temporary injunctionrestraining the respondents/deferidants, their men[and][ agents]from everinterfering with the possession and enjoyment of theschedule property till the disposal of the mainpetitioner overthe appellants/defendants No. 3appeal. Challenging the sameand 4 have preferred the present civil miscellaneous[appeal.]

4. HeardSriT.V.JaggiReddy,learnedcounselfortheappellants.Noneappearedfortheappearingrespondents. Perused the material available on record.

5. On hearing, learned counselfor the appellantsargued that the order of the lower appellate Courtis contraryrecord.He submitstolaw, weight of evidence and material onthat the suit filed forthat the court below ought to have seenspecific performance of agreement of saleisdismissedonmerits by the trial Court and in viewof the same the courtbelow ought not to have granted temporary injunction[pending]further submits that the court below ought to haveappeal. Heseenthat theplaintiff who failed to satisfy the Court withregard to readiness and willingness is not entitled[to][ enjoy][ the]equitablerelief of injunction pending the appeal.He further submits that the appellants are in exclusive possession andenjoyment of the plaint schedule property.Since they[never]had any intentiontosell or sold schedule land to anybodyparticularly in favour of l^t respondent and hence the questionofexecutionofagreementofsaleinfavourof1strespondent/plaintiff doesnotarise.Ex.A3istheallegedagreement of sale/transfer endorsement dated 25.8.1993 stoodmfavour of the respondent/petitioner will not give any rightand title or interest in the schedule property to the petitioner.As the appeal of the respondent/petitioner is not maintainable,requests this Court to pass appropriate orders by setting[aside]the impugned order.

6. On perusing the material available on record and onhearing the submissions, this Court observed that, admittedly,the1st respondent/plaintiff filed suit for the relief of specificperformance of agreement of sale and also filed an applicationalong with the suit for temporary injunction and in the saidsuit temporary injunction was granted and it is in force.

7. Itisfurtherobservedthat,admittedly,Ex.Alagreement of sale dated 01.5.1990 was executed in favour ofthe1strespondentafterreceivingadvanceamountof Rs.1,000/-withanagreementtoreceivebalancesaleconsideration and that the defendants No.2to 4 receivedRs. 10,000/-on11.7.1990fromoutofbalancesaleconsiderationfrom1stdefendantandexecutedEx.A2endorsement dated 11.7.1990 on the reverse of Ex.Al.sincethen thel^t defendant is in possession and enjoyment[of][ the]said land and subsequently on 25.8.1993 the1^^ defendantsold the said land to the plaintiff after receiving[Rs.11,000/-]and delivered possession of the said land to the plaintiff[and]executedEx.A3transferendorsementdated25.8.1993infavour of plaintiff undertaking to get the defendants[No.2][ to][ 4]execute properregistered sale deed or is nominee and to paybalance sale consideration to the defendants No.2 to[4][ at][ the]time of registration of sale deed.

8. This Court further observed that, the suit which[was]wasdismissed by the trialfiled by the 1®^ respondent/plaintiffCourt onthe ground of delay.Thereafter, the l«t respondent/the plaintiff preferred an appeal vide A.S No.3 of[2017][ along]with the impugned application. There is no primafacie caseandbalanceofconvenienceinfavourofthe1strespondent/plaintiff.If injunction is not granted[there][ will][ be]no loss or injury or hardship to the l^t respondent/plaintiffwill occur and whereas if injunction is granted in favour of therespondent/plaintiff there will be every loss and hardship tothe appellants.Further it is observed from the material that,theplaintiffis notin possessionof thesame.Itisalsoobserved from Ex.A3agreement of sale/transfer endorsementdated25.8.1993,whichwasinfavourof1strespondent/plaintiff will not give any right and titleor interest.

9. Having regard to the facts andcircumstancesandconsideringthesubmissionoflearnedcounselfortheappellants, this Court deems fitto allow the present appeal bysetting aside the impugned order.

10. Accordingly,theCivilMiscellaneousAppealisallowed.The order dated 03.04.2017 passed in I.A.No. 122 of2017 in A.S No.3 of 2017on the file of the Senior Civil Judge,Peddapuram, is hereby set aside.2017 in A.S No.3 of 2017on the file of the Senior Civil Judge,Peddapuram, is hereby set aside.

11. Asasequel,allthependingmiscellaneousapplications shall stand closed.applications shall stand closed.

SD/- K. TATA RAODEPUTY ^GISTRARSECTf5N^FICER

//TRUE COPY//

To,

^Judge Peddapuram, East Godavari District(withrecordsif

2. One CC to Sri T. V. Jaggi Reddy, Advocate [OPUC]^•-^*^shmi Shankar Rayapureddy, Advocate [OPUCl4. The Section Officer, V.R Section, High Court of A.P. at Amaravati5.Three CD copies.Trtssb HIGH COURT

DATED:29/12/2023

JUDGMENT+DECREE

CMA.No.793 of 2017

•7~ CO0'€S2&\z\2J+D5L_

ALLOWING THE C.M.A.

0 9 MAY 2029GS