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2020 DIGILAW 568 (TS)

Bandaru Venkanna Babu v. L. Ravinder Goud

2020-07-21

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

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JUDGMENT M.S. Ramachandra Rao, J. - This Civil Miscellaneous Appeal is filed challenging the order dt.06.06.2020 in I.A.No.715 of 2019 in O.S.No.280 of 2019 on the file of XIV Additional District Judge, Ranga Reddy District, at L.B. Nagar. 2. The appellant herein is plaintiff in the above suit. The claim of the appellant in the suit 3. He filed the said suit against the respondents contending that respondent nos.1 and 2 claimed to be owners of plaint 'A' Schedule plots, having purchased them from 3rd respondent who was a registered General Power of Attorney holder of respondent nos.4 and 5 under a registered Power of Attorney dt.05.11.2007; that the appellant purchased the plots under a registered Sale Deed dt.19.02.2016; that the total sale consideration was Rs.1,30,29,000/-; that vacant possession of the plots was given to him; that when he went to level the plots for their development, he came to know from Police that 7th respondent lodged a report dt.18.08.2016 vide Crime No.466 of 2016 claiming title to Plaint 'B' and 'C' Schedule plots; and on further enquiry, the appellant came to know that O.S.No.1114 of 2014 was pending for declaration of title to the Plaint 'A' Schedule plots which was filed by respondent nos.3 to 5 against respondent nos.6 to 8 before the I Additional District Court, Ranga Reddy District, at L.B. Nagar; and that O.S.No.1204 of 2015 for the same relief in respect of the same plots was also filed by respondent nos.1 and 2 against respondent nos.3 to 10 in the same Court, and the same are pending. 4. It is also contended that the appellant came to know that the 7th respondent had obtained a decree dt.01.08.2001 of perpetual injunction in respect of these plots in O.S.No.33 of 1995. 5. The appellant therefore contended in the plaint that the representation made to him by respondent nos.1 and 2 that the plots in question were free from encumbrances and litigation amounts to cheating. He also raised a contention that the property being claimed by respondent nos. 6 to 10 are different from the plots purchased by the appellant. 6. 5. The appellant therefore contended in the plaint that the representation made to him by respondent nos.1 and 2 that the plots in question were free from encumbrances and litigation amounts to cheating. He also raised a contention that the property being claimed by respondent nos. 6 to 10 are different from the plots purchased by the appellant. 6. The following reliefs were sought by the appellant in the above suit : "(a) Direct the defendant nos.1 and 2 to refund the sum of Rs.80,29,000/- together with interest at 18% p.a. from the date of payment, i.e., 19.02.2016 till the date of realization; (b) Direct the defendant nos.1 to 5 to pay a sum of Rs.25,00,000/- towards damages to the plaintiff; (c) direct that the plaintiff is entitled to a lien / charge on the schedule property to the extent of Rs.70,00,000/-; and entitled to proceed against the plaint schedule property as against the defendant nos.1, 2, 3 to 5 and 6 to 11; (d) Award costs of the suit; and (e) pass such other and further order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case." I.A.No.306 of 2019 7. The appellant filed I.A.No.306 of 2019 seeking relief of attachment of the plaint schedule properties to the extent claimed by the appellant. I.A.No.715 of 2019 8. Along with the suit, the appellant also filed I.A.No.715 of 2019 under Order XXXIX Rules 1 and 2 of Civil Procedure Code, 1908 restraining the respondent nos.6 to 8 and 11 from alienating the suit schedule property till the disposal of I.A.No.306 of 2019, in order to make a lien /charge to the extent the appellant's suit claim. The appellant's claim in IA No.715 of 2019 9. It is contended in the affidavit filed in support of I.A.No.715 of 2019 that respondent nos.1, 2 and 6 to 8 were served with summons and notice in the suit, and they have been seeking time to file Written Statements / counters; that 11th respondent had been set ex parte on 12.04.2019; that fully knowing well about the pendency of the suit and without filing counter, the respondent nos.6 to 8 and 11 were selling property to third parties to defeat the interests of the appellant, particularly when his application IA No. 306 of 2019, for attachment of the property, is pending. He alleged that the documents executed by respondent nos.6 to 8 and 11 in favour of subsequent purchasers during the pendency of the suit are not valid, and that they are fraudulent; and therefore, temporary injunction must be granted against respondent nos.6 to 8 and 11 restraining them from alienating the suit schedule property till I.A.No.306 of 2019 is decided. The counter affidavit of respondent no.s 6-8 and 11 10. Counter-Affidavit was filed by respondent nos.6 to 8 and 11 opposing this application. 11. They contended that the appellant had filed the suit with fictitious documents to grab the property of the said respondents and the plots claimed by the appellant were non-existent. 12. They then traced the title of their predecessor, viz., one Begari Chittaiah. According to them, the respondent nos.1 and 2 did not derive any right, title or possession over the suit schedule property and in collusion with the appellant were trying to grab the property of the respondent nos.6 to 8 and 11 which were plot Nos.3 and 13 admeasuring 572.00 Sq.Yds on the ground that they were plot Nos.6, 7/Part and 8/Part which were not in existence. 13. They contended that the appellant did not acquire any title under the registered Sale Deed dt.19.02.2016 from respondent nos.1 and 2. They also denied the possession of the appellant over the plaint 'A' Schedule plots. 14. According to them, there is no privity of contract between the appellant and these respondents, and in the absence of such privity and obligations of any kind between appellant and respondent nos.6 to 8 and 11, no interim injunction can be granted in favour of appellant against these respondents. The order in IA No.715 of 2019 15. In the Court below, the appellant marked Exs.P.1 to P.10 and respondents marked Exs.R.1 to R.18. 16. The Court below noted the contentions of appellant that respondent nos.1 and 2 had suppressed earlier pending litigation in respect of the plaint 'A' Schedule plots and cheated appellant by stating that the plots would be free from encumbrances; and that there is a triangular claim in respect of plaint 'A' Schedule plots since respondent nos.6 to 8, respondent nos.1 and 2 and the appellant are also claiming title to the said plots. 17. 17. It observed that B. Chittaiah and other members of his family had lost actual possession and enjoyment of the plots long ago in view of decree and judgment dt.01.08.2001 in O.S.No.33 of 1995 passed by the II Additional Senior Civil Judge, Ranga Reddy District, at L.B. Nagar in favour of Vellanki Nagabhushanam against Pedda Chittaiah and other members of his family; that the said Pedda Chittaiah could not have sold these plots to 4th respondent under Ex.R.8 dt.10.02.1999; that 4th respondent could not have executed any agreement of sale - cum - General Power of Attorney dt.05.11.2007 in favour of 3rd respondent in respect of the subject plots; and that 3rd respondent could not have sold them to respondent nos.1 and 2 under registered sale deed dt.19.02.2016. 18. It, therefore, prima facie concluded that title to the plot 'A' Schedule Plots is with respondent no.9 and possession lies with respondent nos.6 to 8 only, though the issue requires final adjudication in the suit. 19. It observed that the predecessors in title of the appellant are prima facie merely ostensible/purported owners and possessors and the real owners are respondent nos.6 to 9; and since there is no privity of contract between the appellant and respondent nos.6 to 8 and 9, the appellant is not entitled for temporary injunction against them since prima facie it appears that they are the owners of the said plots. 20. It also referred to the contention of the appellant that respondent nos.6 to 8 had entered into Agreement of Sale - cum - General Power of Attorney dt.24.04.2014 Ex.P.9 with 11th respondent in respect of 'B' and 'C' Schedule plots and were trying to grab the said plots and observed that even if such possession is taken, 'B' and 'C' Schedule plots are situated far away and they are different from 'A' Schedule plots. It therefore dismissed I.A.No.715 of 2019. The instant CMA 21. Assailing the same, the present Civil Miscellaneous Appeal is filed. 22. The counsel for appellant contended that the Court below ought to have granted temporary injunction as sought by the appellant pending disposal of I.A.No.306 of 2019 by it; that the conclusion of the Trial Court about title and possession of the plots in 'B' and 'C' Schedule in favour of respondent no.9 is contrary to Exs.P.1 to P.7 and R.1 to R.8. He contended that the Court below could not have decided the issue of title in the temporary injunction application and it ought not to have given any finding that Exs.P.1 to P.8 are sham documents and Ex.R.8 Sale Deed dt.10.02.2016 was created for the purpose of litigation. The consideration by the Court 23. Admittedly, the appellant had filed the suit O.S.No.280 of 2019 against the respondents on 19.03.2019. According to the appellant, he had also filed I.A.No.306 of 2019 seeking attachment of the properties of the respondents to the extent of the appellant's claim. From what is apparent from the record, it is clear that the said application is still pending. 24. Instead of pursuing the said application and expeditiously getting the said application decided, the applicant had filed I.A.No.715 of 2019 for an interim injunction restraining respondent nos.6 to 8 and 11 from alienating the suit schedule property till I.A.No.306 of 2019 is decided. The said I.A.No.715 of 2019 was filed in June, 2019. 25. If one looks at the relief claimed in the suit by the appellant it is clear that the appellant is not seeking to enforce any rights under the registered Sale Deed dt.19.02.2016 executed in his favor by respondent no.s 1 and 2, but has instead alleged that he was cheated by respondent nos.1 and 2, and so he is entitled to a refund of Rs.80,29,000/- which he had paid to respondent nos.1 and 2 with interest at the rate of 18 per cent per annum from the date of payment till the date of realization; and for damages of Rs.25 lakhs, etc., 26. Admittedly, the privity of contract is only between the appellant and respondent nos.1 and 2 and there is no privity of contract between the appellant and respondent nos.6 to 11. 27. In these circumstances, the relief of recovery of amount paid towards consideration by the appellant to respondent nos.1 and 2 can, if at all, be sought against respondent nos.1 and 2 only. 28. 27. In these circumstances, the relief of recovery of amount paid towards consideration by the appellant to respondent nos.1 and 2 can, if at all, be sought against respondent nos.1 and 2 only. 28. When there is a inter se title dispute about 'A' Schedule plots between respondent nos.6 to 11, respondent nos.3 and 4 and respondent nos.1 and 2; Civil Suit O.S.No.1114 of 2014 filed by respondent nos.3 to 5 against respondent nos.6 to 8 was pending in the Court below of the I Additional District Judge, Ranga Reddy District, at L.B. Nagar itself; and O.S.no.1204 of 2015 filed for the same relief by respondent nos.1 and 2 against respondent nos.3 to 10 in the same Court, is also pending, and it is difficult to say at this stage which of them would succeed and when, the appellant cannot be said to have any prima facie case against respondent nos. 6 to 8 and 11 in order to restrain the said respondents from alienating the plaint 'A' Schedule plots. 29. We therefore do not find any error in the order passed by the Court below warranting interference by us in exercise of the appellate jurisdiction. 30. Accordingly, the Appeal fails and it is dismissed. No order as to costs. 31. As a sequel, miscellaneous petitions pending if any in this Appeal, shall stand closed.