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2009 DIGILAW 466 (AP)

Ashok Kumar v. Amarjeet Singh Makhija

2009-07-17

L.NARASIMHA REDDY

body2009
ORDER Both the revisions are filed by the same petitioner, against the same respondent. 2. The respondent filed O.S.No.1419 of 2004 in the court of the VIII Junior Civil Judge, City Civil Court, at Hyderabad against the petitioner for the relief of perpetual injunction. He also filed I.A.No.287 of 2004 under Order 39 Rule 1 and 2 CPC. It was pleaded that the suit schedule property is part of estate of late Girija Shanker and others. One of the coparceners by name Naresh Kumar filed O.S.No.273 of 1969 in the court of the II Additional Judge, City Civil Court, Hyderabad for partition and separate possession of joint family property. A preliminary decree was passed in that suit and it was confirmed by this court in C.C.C.A.No.16 of 1974. In the final decree proceedings, the present suit schedule property is said to have been allotted to the share of Naresh Kumar and after the death of Naresh Kumar on 13.10.1997, it devolved upon his legal heirs and they in turn have sold it in favour of the respondent through a sale deed. It was alleged that after purchase of the property, the respondent obtained permission from the concerned authority and when he was proceeding with the construction, the petitioner started interfering. 3. The application was opposed by the petitioner on several grounds. It was alleged that though the property was allotted to Naresh Kumar in the E.P. proceedings, possession thereof continued to be with the petitioner and that there are tenants upon it. 4. Through its order dated 16.9.2004, the trial court allowed the I.A. and granted temporary injunction. The petitioner filed C.M.A.No.274 of 2004 in the court of the IX Additional Chief Judge, (Fast Track Court), City Civil Court, Hyderabad and the C.M.A. was dismissed on 14.08.2007. C.R.P.No.5898 of 2008 is filed against the dismissal of the C.M.A. 5. The respondent filed I.A.No.1028 of 2008 before the trial Court with a prayer to grant police aid. It was alleged that despite the order of temporary injunction, the petitioner is interfering with the construction. After hearing both parties, the trial court passed a docket order dated 1.11.2008 granting Police aid. C.R.P.No.5897 of 2008 is filed against the said order. 6. The respondent filed I.A.No.1028 of 2008 before the trial Court with a prayer to grant police aid. It was alleged that despite the order of temporary injunction, the petitioner is interfering with the construction. After hearing both parties, the trial court passed a docket order dated 1.11.2008 granting Police aid. C.R.P.No.5897 of 2008 is filed against the said order. 6. Sri K.V.Subrahmanya Narsu, learned counsel for the petitioner submits that the respondent is purchaser of an item of joint family property and though there was a preliminary and a final decree as regards vast extent of property, the possession of the suit schedule property remained with his client. He submits that the vendors of the respondent have no saleable title or interest in the property and that possession thereof is partly with the tenants and partly with the petitioner. 7. Sri Dilip Kumar Shirodkar, learned counsel for the respondent on the other hand submits that the petitioner himself admitted in various proceedings including in O.S.No.1763 of 2002 that the suit schedule property has fallen to the share of Naresh Kumar and once the property was sold by legal heirs of Naresh Kumar, there is absolutely no justification for the petitioner to interfere with the possession. 8. The learned counsel for the petitioner relied on the judgment of the Supreme Court in Raj Kumar v. Sardari Lal 2004 (2) ALT 1 (SC) = (2004) 2 SCC 601 to contend that the purchase made by the respondent is pendente lite and he cannot claim any independent rights out of it. In the instant case, it is not even prima facie pointed out that the sale of the property in favour of the respondent is contrary to any proceedings. There is nothing to suggest that it is the subject matter of O.S.No.1763 of 2002 filed by the petitioner. 9. The basis on which the respondent filed suit as well as l.A. has already been mentioned in preceding paragraphs. To prove the possession over the property, the respondent filed registered sale deed dated 20-10-2003 (Ex.P.1) through which he purchased it, and the final decree proceedings dated 13.9.1977 in LA.No.142 of 1973 in O.S.No.273 of 1969 (Ex.P.15). In addition to that he has also filed an order of temporary injunction granted in l.A.No.510 of 2002 in O.S.No.1763 of 2002 (Ex.P.6) to demonstrate that the petitioner did not claim any right vis-a.-vis present suit schedule property. In addition to that he has also filed an order of temporary injunction granted in l.A.No.510 of 2002 in O.S.No.1763 of 2002 (Ex.P.6) to demonstrate that the petitioner did not claim any right vis-a.-vis present suit schedule property. The petitioner on the other hand filed Exs. R.1 to R.17 which are in the form of property tax receipts etc. 10. The petitioner did not dispute the factum of filing of the suit for partition by Naresh Kumar and that the suit schedule property has been allotted to his share in the family partition. The thin line of argument advanced on behalf of the petitioner was that the actual delivery of possession was not effected. Here again the record discloses that the delivery of possession in favour of Naresh Kumar was certified by the trial court, in various proceedings initiated by some of the coparceners. More than three decades have elapsed, after possession was delivered under the final decree. 11. Whatever may be the justification for a third party to claim possession over an item of property allotted to an individual in the final decree proceedings, a person who is already party to such proceedings cannot be allowed to say that he is still in possession of the item allotted to another sharer. Not only the plea is opposed to law, but also, the facts disclose that the possession was delivered to Naresh Kumar in the year 1977 itself. These observations can certainly justify the grant of temporary injunction in favour of respondent who is purchaser of the property from the legal heirs of Naresh Kumar. 12. In India Household & Healthcare Ltd., v. LG Household & Health Care Ltd., 2007 (2) SCJ 945 = (2007) 5 SCC 510 it was held that courts should observe judicial comity and ensure that no order is passed by one court would have the effect of defeating order passed by another competent court of law. The petitioner obviously wanted to cite this principle vis-a-vis the order of temporary injunction granted in O.S.No.1723 of 2002. It has already been mentioned that the subject matter of that suit is different from the one in O.S.No.1419 of 2004. The decisions touching on the exercise of powers of the court either while granting temporary injunction or exercising appellate power upon such order are also cited. It has already been mentioned that the subject matter of that suit is different from the one in O.S.No.1419 of 2004. The decisions touching on the exercise of powers of the court either while granting temporary injunction or exercising appellate power upon such order are also cited. However, it is not mentioned as to in what respect, the orders passed by the courts below suffer from infirmity. On the other hand, it was found that the respondent had established balance of convenience and prima facie case in his favour. 13. The trial court as well as lower appellate court have examined the matter with reference to the relevant record and this court is not inclined to take a different view. Therefore, C.R.P. NO.5898 of 2008 deserves to be dismissed. Once the order of temporary injunction is in favour of the respondent, the petitioner cannot still interfere with the construction undertaken by the respondent. No infirmity is pointed out in the order in I.A.No.No.1028 of 2008. Therefore, the C.R.P. NO.589? of 2008 is liable to be dismissed. 14. Hence, the C.R.Ps are dismissed, directing that any construction made by the respondent shall be subject to the result of the suit and that the suit shall be decided on its merits uninfluenced by any observations made in this set of proceedings. There shall be no order as to costs.