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2023 DIGILAW 892 (AP)

G. Sridhar Reddy v. Akkina Surya Prabhavathi

2023-06-16

CHEEKATI MANAVENDRANATH ROY, V.GOPALA KRISHNA RAO

body2023
JUDGMENT : V. Gopala Krishna Rao, J. The appellants in CMA Nos.70 of 2022 and 71 of 2022 are the respondents 5 and 6 in I.A.No.164 of 2017 in O.S.No.16 of 2017 and petitioners in I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of 2017 on the file of V Additional District and Sessions Judge, East Godavari District, Rajamahendravaram. Respondent No.1 in CMA Nos.70 of 2022 and 71 of 2022 is the petitioner in I.A.No.164 of 2017 in O.S.No.16 of 2017 and respondent No.1 in I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of 2017. Respondent Nos.2 to 6 in CMA Nos.70 of 2022 and 71 of 2022 are the respondents 1 to 4 and 7 in I.A.No.164 of 2017 in O.S.No.16 of 2017 and respondent Nos.2 to 6 in I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of 2017 on the file of V Additional District and Sessions Judge, East Godavari District, Rajamahendravaram. As both the appeals are filed against the common order passed in I.A.No.164 of 2017 in O.S.No.16 of 2017 and I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of 2017 on the file of V Additional District and Sessions Judge, East Godavari District, Rajamahendravaram, both the appeals were heard together and they are being disposed of by this common judgment. 2. Both the parties in the appeals will be referred to as they are arrayed in I.A.No.164 of 2017 in O.S.No.16 of 2017. 3. The petitioner/ plaintiff/ respondent No.1 filed the suit for preliminary decree for partition of Plaint Schedule Properties into three equal shares and for allotment of one such share to the petitioner and for passing of final decree in terms of preliminary decree and put the petitioner in possession of her share. 4. The case of respondents 5 and 6 i.e., appellants in these appeals is that item Nos.19 to 21 of the Plaint Schedule Properties which are covered by registered sale deeds dated 06.08.2011 and 23.04.2011 under documents Nos.7300 of 2011 and 3651 of 2011 respectively are purchased by them in the year 2011 itself i.e., five years before filing the suit. The case of respondents 5 and 6 i.e., appellants in these appeals is that item Nos.19 to 21 of the Plaint Schedule Properties which are covered by registered sale deeds dated 06.08.2011 and 23.04.2011 under documents Nos.7300 of 2011 and 3651 of 2011 respectively are purchased by them in the year 2011 itself i.e., five years before filing the suit. They further contended that they are in possession and enjoyment of the item Nos.19 to 21 of Plaint Schedule Properties since the date of its purchase and the petitioner was never in joint and constructive possession of these items of the properties at any time to her knowledge and the petitioner in collusion with other respondents filed the said suit for wrongful gain. 5. I.A.No.164 of 2017 in O.S.No.16 of 2017 is filed by the petitioner/ plaintiff to grant Temporary Injunction restraining the respondents and their men from alienating the Petition Schedule Properties. 6. I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of 2017 is filed by the respondents 5 and 6/ appellants to set aside the ex-parte order of Injunction granted by the trial Court in I.A.No.164 of 2017 in O.S.No.16 of 2017 dated 25.01.2017. 7. During the course of enquiry before the trial Court, on behalf of petitioner Ex.A1 to Ex.A121 were marked, on behalf of respondents Ex.B1 to Ex.B53 were marked. 8. Learned Trial Judge upon considering the material on record as well as the contentions of the both the parties, accepted the version of the petitioner/ plaintiff and granted Temporary Injunction against the respondents from alienating the Plaint Schedule Property till the disposal of the main suit and I.A.No.158 of 2020 filed by the respondents 5 and 6 /appellants herein in I.A.No.164 of 2017 is dismissed by the trial Court. 9. The learned counsel for the respondents 5 and 6/ appellants strenuously contended assailing the order of the trial Court that the order is perverse and against the material on record. He further contended that the petitioner/plaintiff had deliberately not arrayed Smt. Cherukuri Lalitha Chengalva i.e., daughter-in-law of the petitioner, knowing fully well that item No.20 of Suit Schedule Properties was alienated by the respondent No.2 and Smt Cherukuri Lalitha Chengalva and further pleaded that the suit for partition is bad for non-joinder of necessary parties. He further contended that the petitioner/plaintiff had deliberately not arrayed Smt. Cherukuri Lalitha Chengalva i.e., daughter-in-law of the petitioner, knowing fully well that item No.20 of Suit Schedule Properties was alienated by the respondent No.2 and Smt Cherukuri Lalitha Chengalva and further pleaded that the suit for partition is bad for non-joinder of necessary parties. Another ground urged by the respondents 5 and 6/ appellants counsel is that the suit for partial partition is not permissible, since the petitioner/ plaintiff has not included all the properties of the Joint Hindu Family. The third ground urged by the respondents 5 and 6 is that the suit for partition of item Nos.19 to 21 of Suit Schedule Properties is time barred, since the petitioner was aware that the Suit Schedule Properties were purchased by the appellants herein in the year 2011 itself, while the suit for partition is filed in the year 2017. 10. The learned counsel for petitioner/ plaintiff/ respondent No.1 supported the order under appeal contending with reference to the material on record the trial Court rightly granted the temporary Injunction until the disposal of the main suit and thus requested not to interfere with the common order passed by the trial Court under the appeals. 11. Now the points for determination are : (i) Whether the petitioner/plaintiff/ respondent No.1 has made out a prima-facie case and whether balance of convenience is in her favour in respect of item Nos.19 to 21 of Suit Schedule Properties? (ii) Whether the petitioner would suffer irreparable loss and injury in the event of refusal to grant Temporary Injunction in her favour and against R5 and R6? (iii) Whether the order of learned Trial Judge is justified and appropriate? 12. POINT Nos.1 to 3: Before adverting to the facts in issue and the material on record, it is desirable to consider the legal position relating to grant of Temporary Injunction particularly, in the context of the present case, as to application of Order 39 Rule 1(c) of Civil Procedure Code. In the case of Dalpat Kumar and another Vs. 12. POINT Nos.1 to 3: Before adverting to the facts in issue and the material on record, it is desirable to consider the legal position relating to grant of Temporary Injunction particularly, in the context of the present case, as to application of Order 39 Rule 1(c) of Civil Procedure Code. In the case of Dalpat Kumar and another Vs. Prahlad Singh and others, AIR 1993 SC 276 , the Hon’ble Supreme Court of India held that “Order 39, Rule 1(c) provides that Temporary Injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may grant a Temporary Injunction to restrain such act or make such other order for the purpose of staying and preventing…….... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders”. The facts in the present case on hand is that the petitioner/ plaintiff/ respondent No.1 filed a suit for partition of the Plaint Schedule Properties with a plea that the entire Plaint Schedule Properties are the ancestral properties and the respondents/defendants are not cooperating for partition and they are trying to alienate the entire Plaint Schedule Properties to the third parties and that she is seeking a relief of Temporary Injunction restraining the respondents from alienating the entire Plaint Schedule Properties i.e., item Nos.1 to 49, till the disposal of the suit. The respondents 5 and 6/ defendants 5 and 6/ appellants filed both these appeals. The other respondents/ defendants have not filed any appeals. 13. The subject matter of the Appeal Schedule Property is item Nos.19 to 21 of the Plaint Schedule Properties. The respondents 5 and 6/ defendants 5 and 6/ appellants filed both these appeals. The other respondents/ defendants have not filed any appeals. 13. The subject matter of the Appeal Schedule Property is item Nos.19 to 21 of the Plaint Schedule Properties. The contention of the respondents 5 and 6/appellants is that they are bonafide purchasers of item Nos.19 to 21 of the Plaint Schedule Properties as per registered sale deed dated 06.08.2011 and 23.04.2011 for a valuable sale consideration and the same was paid through RTGS and that item Nos.19 to 21 of Plaint Schedule Properties are self-acquired properties of their vendors and the they are in a possession and enjoyment of item Nos.19 to 21 of Plaint Schedule Properties and their names were also mutated in the Municipal record and they are paying taxes on their name. 14. The contention of the petitioner/ plaintiff/ respondent No.1 is that item No.19 of Plaint Schedule Properties is in an extent of 9.75 guntas situated in Kondapur and Kothaguda villages in R.S.No.15, 17, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 and was purchased in the name of first defendant under registered sale deed dated 03.05.1997, item No.20 of the Plaint Schedule Properties is in an extent of 484 square yards in Kondapur and Kothaguda villages of Rangareddy District in R.S.No.15, 17, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 and was purchased in the names of first defendant and another under registered sale deed dated 10.02.1997 and item No.21 of the Plaint Schedule Properties is an extent of 968 square yards in Kondapur and Kothaguda villages of Rangareddy District in R.S.No.15, 17, 21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 and was purchased in the names of first defendant and third defendant under registered sale deed dated 10.02.1997. 15. The another contention of the petitioner is that the defendant No.2 is the son of defendant No.1, defendant No.3 is the son of defendant No.2, defendant No.7 is the wife of defendant No.1, petitioner/plaintiff is the daughter of defendant No.1. 15. The another contention of the petitioner is that the defendant No.2 is the son of defendant No.1, defendant No.3 is the son of defendant No.2, defendant No.7 is the wife of defendant No.1, petitioner/plaintiff is the daughter of defendant No.1. The petitioner further pleaded that the defendant Nos.1 and 2 constituted a Hindu Joint Family, defendant No.3 is the son of defendant No.2, and defendant Nos.4 to 6 are the alienees of item Nos.14, 19, 20 and 21 of Plaint Schedule Properties and there was no partition between the family members of the petitioner/ plaintiff either orally or in written manner and originally the ancestors of the petitioner are agriculturists and they owned the properties even by the year 1934 and they owned agricultural lands at Konthamuru village of Kolamuru Panchayat and the great grandfather of the petitioner was one Cherukuru Veeranna and he inherited the agricultural lands at Konthamuru village of Kolamuru gram panchayat from his ancestors, after his death, his two sons by name Cherukuri Subbarao i.e., paternal grand father of the petitioner/plaintiff and his brother Cherukuri Bapanna got Ac.5.52 cents in R.S.No.781 and Ac.3.05 cents in R.S.No.782/1 of Konthamuru Village of Kolamuru gram panchayat and the said property was sold by Cherukuri Subbarao and his brother Bapanna and that the family of the petitioner/plaintiff/respondent No.1 and their ancestors are having agricultural lands. 16. The petitioner/plaintiff/ respondent No.1 further pleaded that the father of defendant No.1 died intestate on 14.10.1996. In order to prove the same, the petitioner relied on Ex.A22. She further pleaded that the mother of defendant No.1 died intestate on 12.08.2001, In order to prove the same, the petitioner relied on Ex.A23. 17. The contention of the respondents 5 and 6/ appellants is that they purchased the item Nos.19 to 21 of the Plaint Schedule Properties under a registered sale deeds dated 06.08.2011 and 23.04.2011. The contention of the petitioner/ plaintiff/ respondent No.1 is that the item Nos.19 to 21 of the Plaint Schedule Properties are the ancestral properties and the same are not self-acquired properties of the defendant No.1 and from out of the ancestral nucleus, the defendant No.1 purchased the said properties and in order to prove the same, the petitioner relied on Ex.43 to Ex.48. 18. 18. By the date of above sale deeds in favour of defendants 1 to 3, the mother of defendant No.1 is alive, she died intestate on 12.08.2001. The crucial aspect to be decided is whether defendants 1 to 3 purchased the item Nos.19 to 21 of Plaint Schedule Properties with their own money or from out of the ancestral nucleus. It has to be decided in the main suit after completion of trial in the main suit in final adjudication but not in the Interlocutory Application. On the basis of self-statement of vendor of defendants 5 and 6, it is not safe to came to conclusion that the subject matter of item Nos.19 to 21 of Suit Schedule Properties are self-acquired properties of defendant No.1. The trial Court also held in its order that the said issue has to be decided after full-fledged trial in the main suit. As noticed supra, the defendant No.2 is the son of defendant No.1, defendant No.3 is the son of defendant No.2, petitioner/plaintiff is the daughter of defendant No.1. 19. One of the grounds urged by the Defendants 5 and 6/ appellants are that the petitioner/ plaintiff/ respondent No.1 deliberately not shown her daughter-in-law as a party to the suit and defendant No.2 and his wife sold item No.20 of Plaint Schedule Property. Whether the suit is bad for mis-joinder of parties or non-joinder of necessary parties has to be decided after framing the issues by the trial Court and after completion of elaborate trial in the main suit but not in Order 39, Rule 1 CPC proceedings. 20. Another ground urged by the respondents 5 and 6/ appellants is that the suit is barred by limitation, since they purchased the item Nos.19 to 21 of the Suit Schedule Properties in the year 2011, the petitioner/ plaintiff/ respondentNo.1 filed the present suit for partition is in the year 2017. As noticed supra, the relief claimed by the petitioner/ plaintiff in the present suit is for partition of the Plaint Schedule Properties. 21. The Hon’ble Supreme Court of India held in Urvashiben and another Vs. As noticed supra, the relief claimed by the petitioner/ plaintiff in the present suit is for partition of the Plaint Schedule Properties. 21. The Hon’ble Supreme Court of India held in Urvashiben and another Vs. Krishnakanth Manuprasad Trivedi, (2019) 1 ALT 1 SC case “It is well settled that, so far as the issue of limitation is concerned, it is mixed question of fact and law, it is true that limitation can be the ground for rejection of the plaint in exercise of the power under Order VII Rule 11(d) of Civil Procedure Code”. The Hon’ble Supreme Court of India further held in the said decision that “the issue as to when the plaintiff has noticed refusal, is an issue which can be adjudicated after trial even assuming that there is an inordinate delay and laches on the part of the plaintiff, the same cannot be ground for rejection of the plaint” It was held by Hon’ble Supreme Court of India in Narne Rama Murthy Vs. Ravula Somasundaram and others, (2005) 6 SCC 614 case “when limitation is the pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course it is the duty of the Court to decide limitation at the outset even in the absence of plea. However, in cases where the question of limitation is a mixed question of fact and law and suit does not appear to be barred by limitation on the fact of it, then the facts are necessary to prove the limitation must be pleaded, an issue raised and then proved …….”. Here the subject matter of the suit is for partition of the Plaint Schedule Properties. The appeals are filed against the order passed under Order 39 Rule 1 of Civil Procedure Code by the trial Court, the scope of this appeal is limited. Application as to article 59 of Limitation Act or article 110 of Limitation Act is desirable to be considered in the given facts and circumstances of the present case, after parties have entered upon the trial and when the trial Court takes a final decision in the matter. 22. The counsel for respondents 5 and 6/ appellants relied on the decisions in B.R. Patil Vs. Tulsa Y. Sawkar and others, 2022 SCC online SC 240, Jupudi Venkata Vijayabhaskar Vs. 22. The counsel for respondents 5 and 6/ appellants relied on the decisions in B.R. Patil Vs. Tulsa Y. Sawkar and others, 2022 SCC online SC 240, Jupudi Venkata Vijayabhaskar Vs. Jupudi Keshava Rao, AIR 1994 (AP) 134 , Sri Narayan Bal and others Vs. Sridhar Sutar and others, (1996) 8 SCC 54 , Kehar Singh (died) through L.Rs. Vs. Nachittar Kour, (2018) 14 SCC 445 and D.S. Lakshmaiah and another Vs. L. Bala Subrahmanyam, (2003) 10 SCC 310 . The facts in the cited decisions shows that after disposal of the main suit, the appeals were filed. Here the subject matter of the appeal is Temporary Injunction order passed by the trial Court during the pendency of the main suit. Therefore, the facts and circumstances in the cited decisions are not applicable to the instant case. The learned counsel for appellants further relied on a decision in Kishore Samrite Vs. State of U.P., (2013) 2 SCC 398 . The facts in the cited decision relates to the Habeas Corpus writ petition. The learned counsel for appellants further relied on a decision in Kenchegowda Vs. Siddegowda, (1994) 4 SCC 294 . The facts in the said decision relates to the suit for partial partition. The learned counsel for appellants further relied on a decision in Madan Lal Vs. Controller of Estate Duty, Delhi and Rajasthan, 1969 (74) ITR 84. The subject matter of the decision relied on by the learned counsel for the appellants is reference by the Central Board of Revenue under Section 64 (1) of Estate Duty Act 1953. The learned counsel for appellants further relied on a decision in State of Orissa Vs. Dhaniram Luhar, (2004) 5 SCC 568 . In the said decision, it was held that : “The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial”. The facts and circumstances in the cited decision are different to the instant case. The learned counsel for the respondents 5 and 6/ appellants further relied on a decision in P. Ravichandran Vs. State of Tamil Nadu, (2001) SCC Online Mad 750. The facts in the cited decision relates to Writ of Mandamus filed under article 226 of Constitution of India. 23. As stated supra, the contention of the respondents 5 and 6/ appellants is that they purchased the item Nos.19 to 21 of the Plaint Schedule Properties under registered sale deeds in the year 2011 and the said properties are self-acquired properties of their vendors. The contention of the petitioner/ plaintiff/ respondent No.1 is that the defendants 1 to 3 purchased the item Nos.19 to 21 of Plaint Schedule Properties from out of the ancestral nucleus and the defendant No.2 is the son of defendant No.1 and defendant No.3 is the son of defendant No.2 and the plaintiff is the daughter of defendant No.1. The crucial aspect to be decided is whether defendants 1 to 3 purchased the item Nos.19 to 21 of Plaint Schedule Properties with their own money or from out of the ancestral nucleus. It has to be decided in the main suit after completion of trial in the suit in final adjudication, but not in Interlocutory Application. On the basis of self-statement of vendors of defendants 5 and 6, it is not safe to come to conclusion that the subject matter of item Nos.19 to 21 of Suit Schedule Properties are self-acquired property of defendant No.1. The trial Court rightly came to conclusion that it has to be decided after full fledged trial in the main suit only. 24. The defendants 5 and 6/ appellants would contend that there is no progress in the trial, the suit is filed about 6 years ago i.e., in the year 2017 and the trial is not yet commenced by the trial Court, therefore, if Temporary Injunction passed by the trial Court is not vacated, their rights will be defeated. 24. The defendants 5 and 6/ appellants would contend that there is no progress in the trial, the suit is filed about 6 years ago i.e., in the year 2017 and the trial is not yet commenced by the trial Court, therefore, if Temporary Injunction passed by the trial Court is not vacated, their rights will be defeated. The order passed by the trial Court pertains to restraining the respondents from alienating the Plaint Schedule Properties until the disposal of the main suit. The contention of the respondents 5 and 6 i.e., appellants herein is that they are in possession of item Nos.19 to 21 of the Plaint Schedule Properties. By virtue of the order passed by the trial Court, which is now under challenge, the rights of the parties as well as possession of the parties were not yet affected and the respondents 5 and 6/ appellants are in a possession of subject matter of the item Nos.19 to 21 of Suit Schedule Properties. Therefore, we are of the considered view that it is proper, just and necessary to give direction to the trial Court to dispose of the main suit within six months from the date of this common judgment. In view of the foregoing discussion, the common order passed by the trial Court is perfectly sustainable under law and it warrants no interference in these appeals. 25. Resultantly, both the appeals are dismissed. The trial Court is directed to dispose of the main suit i.e., O.S.No.16 of 2017 on the file of V Additional District and Sessions Judge, East Godavari District, Rajamahendravaram, within six months from the date of this common judgment and submit the compliance report to this Court. Registry is hereby instructed to send the copy of this judgment to the trial Court forthwith. No order as to costs in both the appeals. As a sequel, miscellaneous petitions, if any, pending in the appeals shall stand closed.