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2005 DIGILAW 882 (AP)

Varikoti Nagaraju v. Varikoti Bhadraiah

2005-09-20

D.S.R.VERMA, P.SWAROOP REDDY

body2005
D. S. R. VARMA, J. ( 1 ) HEARD both sides ( 2 ) THOUGH the matter is listed under the caption "interlocutory", with consent of both parties, the mam Civil Miscellaneous Appeal itself is heard and disposed of by this judgment ( 3 ) THIS Civil Miscellaneous Appeal is directed against the order and decree, dated 6-7-2005, passed by the III Additional District judge, Warangal, disposing of the application i A No. 126 of 2004 in OS. No 4 of 2004, filed under Order 39 Rules 1 and 2 of the Code of civil Procedure seeking to grant ad interim injunction restraining the respondents therein from in any way alienating the petition schedule properties or inducting third parties into the petition schedule properties till the disposal of the suit. ( 4 ) THE appellants are plaintiffs and respondent Nos. 1 to 3 are defendant Nos. 6, 14, 15 and respondent Nos. 4 to 7 are defendant Nos. 16 to 19, respectively. ( 5 ) FOR the sake of convenience, in this judgment, the appellants, respondent Nos. 1 to 3 and respondent Nos. 4 to 7 will be referred to as "the plaintiffs", "defendant Nos. 6, 14 and 15" and "defendant Nos. 16 to 19", respectively. ( 6 ) THE factual background is that an extent of Ac. 17-28 guntas of land was purchased by one Jeedi Ramulu under an agreement of sale, dated 20-7-1967, for a total consideration of Rs. 4,425/ -. Consequently the possession has been delivered to the said Jeedi Ramulu. Defendant Nos. 2, 3, 4 and 6 are the sons of said Jeedi Ramulu and defendant No. 5 by name Varikoti Sarojana is the wife of one of the brothers of defendant nos. 2 to 4 and 6. The said Jeedi Ramulu died in the year 1983. After several years, the defendants Nos. 2 to 6 have made an application before the Mandal Revenue officer, Hanamkonda Mandal, Warangal district, under Section 5-A of the A. P. Rights in Land and Pattadar Pass Books Act, 1971, (for brevity "the ROR Act") and got the sale transaction of the suit schedule property regularized and consequently they became the joint owners of the suit schedule property. Subsequently, defendant Nos. 2 to 6 disposed of the suit schedule property in favour of defendant Nos. Subsequently, defendant Nos. 2 to 6 disposed of the suit schedule property in favour of defendant Nos. 16 to 19, who in turn, developed and plotted the entire suit schedule property and sold away almost all plots in favour of third parties and only few plots are left. Even those plots were allegedly disposed of to third parties under different agreements of sale. Whether the remaining plots were really disposed of or not is a question of fact, which cannot be gone into and decided by this Court since there is any amount of dispute between the parties in this regard. ( 7 ) AT this stage, the plaintiffs, who are the sons of defendant No. 1, filed the present suit for partition. According to the plaintiffs, they are entitled to 1/6th share in the suit schedule property, in which event they would be entitled to an extent of about more than 2 acres. ( 8 ) THE Court below having considered the material available on record, rejected to grant ad interim injunction. However, keeping in view the nature of the suit, the Court below directed the respondent Nos. 4 to 7 herein (defendant Nos. 16 to 19) to deposit the share of the plaintiffs as per the sale deeds. In fact, the said direction was given in the light of the willingness on the part of the said defendant nos. 16 to 19. Aggrieved by the said order of the Court below, the present Civil miscellaneous Appeal has been preferred by the plaintiffs. ( 9 ) SRI N. Subba Reddy, the learned Senior counsel appearing on behalf of the plaintiffs, submits that it was an admitted fact that the suit schedule property was purchased by one Jeedi Ramulu, who is the grandfather of the plaintiffs and this fact is established by the undisputed joint declaration made by defendant Nos. 2 to 6 before the Mandal revenue Officer, Hanamkonda Mandal, warangal District, for the purpose of regularization of the transaction relating to the suit schedule property. Therefore, he submits that when once the suit schedule property was admittedly purchased by the said Jeedi Ramulu, the father of the plaintiffs, who figured as defendant No. 1 in the suit, the plaintiffs, being the children of defendant no. Therefore, he submits that when once the suit schedule property was admittedly purchased by the said Jeedi Ramulu, the father of the plaintiffs, who figured as defendant No. 1 in the suit, the plaintiffs, being the children of defendant no. 1, have got right in the property of the joint family, since all of them constitute a joint family and there is a joint family nucleus in the suit schedule property. ( 10 ) THE defendant No. 1 did not contest the application I. A. No. 126 of 2004. It is only defendant Nos. 16 to 19 that contested the said application. In fact, even in the present civil Miscellaneous Appeal also the main contestants are the purchasers i. e. , defendant nos. 16 to 19. ( 11 ) IT is an established principle that in an application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the prime considerations before the Court are prima facie case , balance of convenience and irreparable loss . ( 12 ) INSOFAR as the prima facie case is concerned, it is to be seen that the contention of both the plaintiffs and the defendant Nos. 16 to 19 did appear to be equally well poised. But, the plaintiffs, since filed the suit for partition, have a little more onerous burden to establish the prima facie title. It is an admitted fact that defendant Nos. 2 to 6 have made an application before the Mandal revenue Officer, Hanamkonda Mandal, warangal District, under Section 5-A of the ror Act and got the transaction of the suit schedule property regularized. No doubt, the entries recorded by the Revenue Authorities are not conclusive, particularly when a suit of the present nature, wherein the rights of the parties are involved and are to be decided, is filed. ( 13 ) FURTHER, and of course, the plaintiffs would have availed of the efficacious alternative remedy by way of preferring an appeal or a revision provided under section 22-A and 23 of the Act, respectively, before the competent authority. However, filing of a suit underthe present circumstances and of the present nature cannot be ruled out as barred. ( 14 ) WE cannot ignore the fact that we are only dealing with an interlocutory application filed under Order 39 Rules 1 and 2 of the code of Civil Procedure. However, filing of a suit underthe present circumstances and of the present nature cannot be ruled out as barred. ( 14 ) WE cannot ignore the fact that we are only dealing with an interlocutory application filed under Order 39 Rules 1 and 2 of the code of Civil Procedure. As already pointed out, broadly it is only the prima facie case and balance of convenience that are to be primarily established to the satisfaction of the court. ( 15 ) IT is not known as to what the plaintiffs or their father i. e. , the defendant No. 1 have been doing all these years since 1983, i. e. , the year in which the original purchaser and the father of the defendant Nos. 2 to 4 and 6 by name Jeedi Ramulu since died. It is a further admitted fact that defendant Nos. 2 to 4 and 6 are all employed in one capacity or the other. It appears that except the eldest son, all the other sons of said Jeedi Ramulu have deposited their self-acquired money with their father and the same was spent for the purpose of purchasing the suit schedule property. Therefore, all of them are having right over the suit schedule property and it has to be treated as their self acquired property. Further it appears that the suit schedule property has to be divided among themselves only inasmuch as the same was purchased by theirfather out of theirexertion. Again, even this fact also is to be established before the Court below at the time of trial. ( 16 ) ADMITTEDLY, no steps have been taken nor any claim had even been made by the defendant No. 1 over the suit schedule property. ( 17 ) NEXTLY, no steps for regularisation i. e. , sale agreement, dated 20-7-1971, have been taken by the plaintiffs. It is also equally not known as to what the plaintiffs have been doing when the suit schedule property was purchased by defendant Nos. 16 to 19 from defendant Nos. 2 to 6 and also equally not known as to what defendant No. 1 was doing when the sale transaction was effected between defendant Nos. 2 to 6 and defendant nos. 16 to 19. The silence on the part of the plaintiffs as well as theirfather i. e. , defendant no. 16 to 19 from defendant Nos. 2 to 6 and also equally not known as to what defendant No. 1 was doing when the sale transaction was effected between defendant Nos. 2 to 6 and defendant nos. 16 to 19. The silence on the part of the plaintiffs as well as theirfather i. e. , defendant no. 1, does amount to acceptance of the rights of defendant Nos. 2 to 6. ( 18 ) FURTHER, it could be seen from the record that defendant Nos. 16 to 19 after purchasing the suit schedule property along with some other property, converted the same into house plots by obtaining permission from the concerned authorities by paying requisite fee towards development charges etc. In fact, a sum of Rs. 4,64,469/- was paid by defendant Nos. 16 to 19 towards development charges to Kakatiya Urban development Authority (for brevity "the kuda" ). It appears that they ventured to do so after verifying the entire records, including the sale deeds, title deeds, pass books etc. , and that a lay out also had been sanctioned in their favour by the KUDA through letter, dated 21-2-2004. ( 19 ) EVEN these facts were in the knowledge of the Panchayat, Komatipalli. When all these developments have taken place in a large scale, it is too hard to believe that defendant No. 1 had no knowledge about the same. Equally so, with the plaintiffs. The silence on the part of defendant No. 1 and the plaintiffs is unacceptable. Therefore, in the light of the regularization effected by the competent authority under the ROR Act in favour of defendant Nos. 2 to 6 and their sale transaction in favour of defendant Nos. 16 to 19, we are of the view that prima facie case is in favour defendant Nos. 2 to 6 and also defendant Nos. 16 to 19. ( 20 ) IF examined from the angle of balance of convenience , it is not in dispute that defendant Nos. 16 to 19 are the purchasers of the suit schedule property from defendant nos. 2 to 6. The possession is also admittedly in their favour. The development activity also had been taken up by them only. ( 21 ) DURING the course of hearing, we are informed by Sri T. Bali Reddy, the learned senior Counsel appearing on behalf of defendant Nos. 2 to 6. The possession is also admittedly in their favour. The development activity also had been taken up by them only. ( 21 ) DURING the course of hearing, we are informed by Sri T. Bali Reddy, the learned senior Counsel appearing on behalf of defendant Nos. 16 to 19, that after plotting the suit schedule property, a large number of plots have already been sold away to third parties by way of registered sale deeds, that except about 40 plots none are left unregistered and that the rights with regard to those plots have been conveyed by way of agreements of sale in favour of third parties. Therefore, any interference at this stage, by ordering the application filed by the plaintiffs under Order 39 Rules 1 and 2 of the Code of civil Procedure would only unsettle the settled issue or dislodge the title conferred upon the third parties. Of course, the conferment of such rights and the validity thereof upon the third parties by defendant Nos. 16 to 19 is to be subjected to judicial scrutiny. ( 22 ) WE see some force in the above contention. However, the plaintiffs have to establish their rights in the suit. Even according to the plaintiffs, they are entitled to have 1 /6th share in the suit schedule property, which comes to about more than 2 acres out of the total extent of about 17 acres. ( 23 ) COMING to the aspect of irreparable toss , in the event of the plaintiffs succeeding in the suit, they would be entitled to a small portion in the suit schedule property which comes to about 2 acres. When the question of equities arises, any toss or damage can be corrected and compensated. ( 24 ) THEREFORE, having regard to the facts and circumstances, at this stage, we do not propose to cause any inconvenience to the innocent third parties who purchased the house plots in the major extent of the suit schedule property. ( 25 ) FOR the aforementioned reasons, we do not see any illegality or irregularity in the impugned order, which calls for interference by this Court. Hence, we confirm the impugned order of the Court below rejecting to grant ad interim injunction, as prayed for by the plaintiffs, and directing defendant nos. 16 to 19 to deposit the share allegedly belonging to the plaintiffs. Hence, we confirm the impugned order of the Court below rejecting to grant ad interim injunction, as prayed for by the plaintiffs, and directing defendant nos. 16 to 19 to deposit the share allegedly belonging to the plaintiffs. ( 26 ) TAKING cue from the direction issued by the Court below, Sri T. Bali Reddy, the learned Senior Counsel appearing on behalf of defendant Nos. 16 to 19, submits that a sum of Rs. 8,40,750/- had been deposited in the Court below. ( 27 ) IT is to be further seen from the record that the valuation of the suit made by the plaintiffs is Rs. 26,00,000/ -. That being so, the share of the plaintiffs would naturally come to about Rs. 4,33,000/ -. Since the market value of the suit schedule property itself was estimated at about Rs. 26,00,000/-, 1/6th share of the plaintiffs would come to about Rs. 4,33,000/ -. However, as discussed and recorded above, a sum of Rs. 8,40,750/- had already been deposited by defendant nos. 16 to 19 in the Court below. ( 28 ) BUT, keeping in view the likelihood of the escalation in price in future and during the pendency of the suit, we feel it appropriate to direct the defendant Nos. 16 to 19 to deposit a sum of Rs. 6,00,000/- (Rupees Six Lakhs only) in addition to the amount of Rs. 8,40,750/- already deposited by them in the Court below. ( 29 ) THE entire amount i. e. , the amount of rs. 6,00,000/-, now directed to be deposited to the credit of the suit by 1 -11 -2005 and the amount of Rs. 8,40,750/- already deposited in the Court below shall be kept in an interest yielding deposit i. e. , fixed DEPOSIT in a nationalised Bank, and that the same would be subject to the outcome of the suit. ( 30 ) IT is made clear that the party who succeeds in the suit is entitled to receive the said amounts along with interest accrued thereon. ( 31 ) IN the result, the Civil Miscellaneous appeal is disposed of, with the above directions. However, there shall be no order as to costs.