D. Suguna v. Balaji Venkateswara swamy Temple, Alwal, R. R. Dist.
2004-04-21
L.NARASIMHA REDDY
body2004
DigiLaw.ai
L. NARASIMHA REDDY, J. ( 1 ) THIS C. M. A is filed against the order of the learned Principal senior Civil Judge, Ranga Reddy District dated 26-3-2004 in LA. No. 1909 of 2003 in o. S. No. 910 of 2003. ( 2 ) THE appellant filed O. S. No. 910 of 2003 against the respondents namely, Sri balaji Venkateswara Swamy Temple, Alwal, ranga Reddy District and the Assistant commissioner of Endowments, Ranga Reddy district, seeking the relief of declaration of title and perpetual injunction in respect of the suit schedule property. The suit was filed in the context of initiation of proceedings by the respondents before the deputy Commissioner of Endowments, hyderabad in O. A. No. 78 of 2002. In the said proceedings, the appellant was declared as an encroacher and she was directed to be evicted from the premises. The petitioner in a way challenged the findings of the deputy Commissioner of Endowments in o. A. No. 78 of 2002 in the present suit by availing remedy under Section 84 of the endowments Act (in short the Act ). ( 3 ) LA. No. 1909 of 2003 was filed under Order 39, Rules 1 and 2 of the Code of Civil Procedure. Initially an order of status quo was granted. The respondents entered appearance. They pleaded that the appellant filed O. S. No. 379 of 1991 in the court of the Junior Civil Judge, East and north, Ranga Reddy District on an earlier occasion in respect of the same property and that the suit was dismissed on merits on 25-3-1997 after recording a finding that the property in question was a choultry constructed by one Dacha Rajaiah and that the claim of the appellant that she is the daughter of the donor is without any basis. They have also pleaded that A. S. No. 59 of 1997 filed by the appellant against the said decree was dismissed by the Court of learned District Judge on 3-12-2001 and second Appeal No. 1063 of 2002 filed before this Court was also dismissed on 20-1-2003. ( 4 ) THE Trial Court took the contentions of the appellant on one hand and respondents on the other into account and dismissed the LA.
( 4 ) THE Trial Court took the contentions of the appellant on one hand and respondents on the other into account and dismissed the LA. ( 5 ) LEARNED Counsel for the appellant submits that the very fact that the Deputy commissioner of Endowments directed eviction of the appellant discloses that she is in possession of the property and as such she was entitled to be granted temporary injunction pending disposal of the suit. He contends that the dismissal of the suit for perpetual injunction simpliciter cannot be treated as a bar for claiming temporary injunction in a suit filed for comprehensive relief of declaration of title and perpetual injunction. He submits that the appellant would be put to irreparable loss if she is dispossessed after continuous possession for over two generations. ( 6 ) THE respondents filed caveat. Learned Counsel for the respondents submits that once the Trial Court, appellate court and the High Court declared in successive proceedings that the appellant is not entitled for the relief of perpetual injunction, no temporary injunction can be granted in her favour. He submits that appellant has been trying to squat on the property on one pretext or other, even after the Courts declared that she does not have semblance of right over the property. ( 7 ) THE appellant filed the suit for declaration and perpetual injunction, faced with the orders passed by the Deputy commissioner of Endowments in O. A. No. 78 of 2002 declaring her as encroacher and directing her eviction. The appellant wanted protection of her possession through an order of temporary injunction pending disposal of the suit. ( 8 ) THE fact that the petitioner was directed to be evicted suggests that she is in possession of the property. That being the case, normally there should not be any objection for granting temporary injunction to protect her possession, pending disposal of the suit. It was so held by this Court in B. Narsinga Raj v. Government of A. P. , 2004 (1) ALD 67 . ( 9 ) IN the present case, however, the matter is not that simple. The appellant herself filed O. S. No. 379 of 1991 in the court of the Junior Civil Judge, East and north, Ranga Reddy District for the relief of perpetual injunction. After considering the matter on merits, the Trial Court dismissed the suit.
( 9 ) IN the present case, however, the matter is not that simple. The appellant herself filed O. S. No. 379 of 1991 in the court of the Junior Civil Judge, East and north, Ranga Reddy District for the relief of perpetual injunction. After considering the matter on merits, the Trial Court dismissed the suit. Findings were recorded to the effect that the suit schedule property is dharma Shala (choultry), attached to the temple, that the appellant does not have even semblance of title in respect of the property and that her claim of being daughter of Sri Dacha Rajaiah is false. The appellant carried the matter in appeal and filed A. S. No. 59 of 1997 before the district Judge, Ranga Reddy District. The appeal was dismissed on 3-12-2001. Thereafter, she filed S. A. No. 1063 of 2002 before this Court. The Second Appeal was also dismissed on 20-1-2003. She did not state any of these facts in the plaint or in the affidavit filed in support of the LA. filed in O. S. No. 910 of 2003. The result of the adjudication in the suit, appeal and second appeal referred to above is that the appellant is not entitled for the decree of perpetual injunction vis-a-vis the suit schedule property. ( 10 ) AN order of temporary injunction is granted pending final adjudication of the relief for grant of perpetual injunction, on being satisfied that there exists prima facie case and balance of convenience in favour of the plaintiff. If there is a final adjudication to the effect that the plaintiff is not entitled for perpetual injunction, grant of temporary injunction in respect of the same property against the same defendants, may be in different proceedings, is impermissible and beyond comprehension. Such a course of action would reduce the result in the earlier proceedings to a nullity. Strictly speaking, the relief of perpetual injunction claimed by the appellant in the present suit stands barred by the principle of res judicata. Once the relief of permanent injunction is barred, the question of granting any temporary injunction in respect of the same property, does not arise.
Strictly speaking, the relief of perpetual injunction claimed by the appellant in the present suit stands barred by the principle of res judicata. Once the relief of permanent injunction is barred, the question of granting any temporary injunction in respect of the same property, does not arise. ( 11 ) THE plea of the appellant that she is in possession of the property and the same needs to be protected pending disposal of the suit virtually amounts to seeking a premium on her own unlawful acts vis-a-vis the suit schedule property. With the dismissal of the suit, appeal and the second appeal, the possession of the appellant over the suit schedule property became unlawful and not entitled for any protection. With those pronouncements, the appellant did not have any right to continue in possession of the property any longer. When the respondents initiated proceedings under the Act to evict her, the deputy Commissioner of Endowments took the pronouncements in the suit, appeal and second appeal into account and directed eviction. ( 12 ) THERE cannot be any objection for the appellant in seeking the relief of declaration of title and as and when such title is declared, she can seek restoration of possession. However, as long as the judgment and decrees in O. S. No. 379 of 1991, A. S. No. 59 of 1997 and S. A. No. 1063 of 2002 stare at her, grant of any temporary injunction would amount to nullifying the effect of the said proceedings. ( 13 ) ORDINARILY, a person in possession of the property is entitled for grant of temporary injunction. However, it is important that such possession must not be unlawful. If the possession is found to be unlawful, it cannot be protected by way of temporary injunction. In this case, the possession of the appellant was already held to be unlawful. ( 14 ) AT any rate, the appellant has not approached the Trial Court with correct facts and clean hands. She has suppressed the material fact of her filing the suit, appeal and second appeal on earlier occasion in respect of the same property and the result thereof. The relief for perpetual or temporary injunctions being discretionary cannot be extended to the parties, who do not represent the correct facts before the courts.
She has suppressed the material fact of her filing the suit, appeal and second appeal on earlier occasion in respect of the same property and the result thereof. The relief for perpetual or temporary injunctions being discretionary cannot be extended to the parties, who do not represent the correct facts before the courts. ( 15 ) VIEWED from any angle, this Court does not find any basis to interfere with the well considered order passed by the trial Court. The appeal is accordingly dismissed. The Trial Court is directed to proceed with the trial of the matter as expeditiously as possible, uninfluenced by any of the observations made in the preceding paragraphs. It is also directed that on resumption of the property, the respondents shall not create third party rights by way of sale or lease till the disposal of the suit. No costs.