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2024 DIGILAW 362 (AP)

Shree Sathya Homes v. G. Vasudeva Reddy

2024-03-15

R.RAGHUNANDAN RAO

body2024
ORDER R Raghunandan Rao, J. - Heard Sri K.S. Murthy, the learned Senior Counsel appearing for the petitioner representing on behalf of Sri O. Uday Kumar, Sri Korrapati Subba Rao, learned counsel appearing on behalf of respondent No.1, Sri P. Rajasekhar, learned counsel appearing on behalf of respondent No.2, and Sri Narra Srinivasa Rao, learned counsel appearing on behalf of respondent No.3. 2. For the ease of reference, the parties are being referred to as they are arrayed in the plaint. 3. The plaintiff had filed O.S.No.23 of 2023 in the Court of the Principal Senior Civil Judge, Tirupathi seeking permanent injunction restraining the defendants 1 to 3 and the persons claiming through them from interfering with the peaceful possession of the plaintiff over plaint 'A' and plaint 'B' schedule properties. Plaint 'A' schedule property is again divided into Item No. 1 and Item No.2. Item No.1 is said to be land admeasuring 1210 sq.yards and Item No.2 is said to be land admeasuring 403.33 sq.yards. Both these items are said to be situated in Sy.No.216, 219/10, 221/1 and 221/2 of Vedanthapuram Revenue Village, Tirupathi Rural Mandal. Plaint 'B' schedule property is said to be 1613.33 sq.yards of land situated in Sy.No.216, 219/10, 221/1 and 221/2. The boundaries for these items 1 and 2 of plaint A schedule and the boundaries for plaint 'B' schedule are also set out in the respective schedules. 4. It is the case of the plaintiff that the respondents 1 and 2 along with their brother Sri G. Damodar Reddy were the owners of various extents of land. These three persons are said to have sold some of the lands, owned by them, by way of various deeds of sale, which were marked, for the purpose of reference, in the interlocutory application as exhibits P.4, P.5 and P.6. Under sale deed dated 28.11.1994, marked as Ex.P.5 an extent of Ac.2.52 cents in Sy.No.221/2 was sold to one Swarna Builders. By a sale deed dated 09.04.1997 marked as Ex.P.4 an extent of Ac.2.04 cents, in Sy.No.221/2 were sold to Sri B. Gopinadh. By a sale deed dated 09.04.1997 marked as Ex.P.6 an extent of Ac.1.00 cents in Sy.No.221 and Ac.1.00 cents in Sy.No.216 was sold to Sri Muni Krishna Reddy. All the purchasers in the above sale deeds are said to have conveyed and alienated the respective lands in favour of Krishna Murthy and Smt. Mamatha. By a sale deed dated 09.04.1997 marked as Ex.P.6 an extent of Ac.1.00 cents in Sy.No.221 and Ac.1.00 cents in Sy.No.216 was sold to Sri Muni Krishna Reddy. All the purchasers in the above sale deeds are said to have conveyed and alienated the respective lands in favour of Krishna Murthy and Smt. Mamatha. The aforesaid Krishna Murthy and Mamatha are said to have entered into a development agreement with the plaintiff herein, by way of document Nos. 5968 of 2021 and 2308 of 2022. 5. The plaintiffs having entered into the development agreement had undertaken development of the aforesaid lands. Since an unauthorised lay out had been made in this land, L.Rs clearances were obtained from the Tirupathi Urban Development Authority between 14.09.2021 to 29.09.2021 and individual building permissions were obtained in the plots, in the regularised lay out between 25.09.2021 to 22.08.2022 and construction of houses were commenced in these plots. 6. As the Gram Panchayat, allegedly under the influence of the defendants, was interfering with the construction activity of the plaintiff, a writ petition bearing W.P.No.36190 of 2022 was filed on 07.11.2022 complying of the said interference. At that stage, the Gram Panchayat had stated that certain notices had already been issued to the plaintiff about the unauthorised construction and the matter restricted there. In a parallel proceeding, the defendant herein moved O.S.No.99 of 2022 before the V Additional District Judge, Tirupathi seeking an injunction against alienation of property and for recovery of Ac.0.54 cents of land in Sy.No.219 of 2010 along with a declaration of title by the Court. The V Additional District Judge directed that no alienation to an extent of Ac.0.54 cents of land should be carried out. The plaintiff contends that the defendants, in the guise of enforcement of this order started interfering with land in the possession of the plaintiff. 7. The plaintiff, in view of the aforesaid facts, moved O.S.No.23 of 2023 along with I.A.No.112 of 2023 for a permanent injunction and a temporary injunction pending on the file of the Principal Senior Civil Judge, Tirupathi. At that stage, the Gram Panchayat issued orders for removal of structures constructed by the plaintiff and W.P.No.72827 of 2023 was filed challenging these orders. While this writ petition was pending, the Principal Senior Civil Judge, Tirupathi dismissed I.A.No.112 of 2023 on the ground that W.P.No.36190 of 2022 was pending. At that stage, the Gram Panchayat issued orders for removal of structures constructed by the plaintiff and W.P.No.72827 of 2023 was filed challenging these orders. While this writ petition was pending, the Principal Senior Civil Judge, Tirupathi dismissed I.A.No.112 of 2023 on the ground that W.P.No.36190 of 2022 was pending. It may also be noted that W.P.No.36190 of 2022 along with two other writ petitions were disposed of by this Court, on 15.04.20923, directing the Gram Panchayat to issue notices and hear the plaintiff before passing any further orders. After receipt of the said orders, the Gram Panchayat, by proceedings dated 26.07.2023 had kept the building permission in abeyance and directed the plaintiff not to make any further constructions apart from returning the building permission and plan, issued by the Gram Panchayat. Aggrieved by this order, the plaintiff again moved this Court, by way of W.P.No.23571 of 2023 wherein this Court, by an order dated 11.09.2023, directed that no coercive steps should be far against the plaintiff. 8. The plaintiff, in view of the dismissal of I.A.No.112 of 2023, had moved the appellate Court, by way of C.M.A.No.5 of 2023 before the X Additional District Judge, Tirupathi and the same came to be dismissed on 17.11.2023. Aggrieved by the said order of dismissal, the plaintiff has moved the present revision petition. 9. Sri K.S. Murthy, the learned Senior Counsel appearing for the revision petitioner assails the order of the trial Court as well as the appellate Court on the following grounds: (1) The application was an application for injunction restraining the defendants from interfering with the possession of the plaintiff over the suit schedule property. This would require the trial Court and the appellate Court to go into the question of who is in possession of the property before deciding whether an injunction should be granted or not. However, both the trial Court and the appellate Court, without going into the question of who is in possession of the property, had dismissed the initial application and the appeal on the ground that the writ petition was pending before this Court and on the ground that the panchayat permission had been revoked. (2) The notices issued by the Gram Panchayat, which was marked as Ex.P.62, in the interlocutory application would show that the notices had been issued on the basis of the plaintiff being in possession of the schedule property. (2) The notices issued by the Gram Panchayat, which was marked as Ex.P.62, in the interlocutory application would show that the notices had been issued on the basis of the plaintiff being in possession of the schedule property. (3) The photographs, which have been marked as Exs.P.58 would show that the plaintiff is in possession of the schedule property and has been carrying on development activities including construction of structures in the land; (4) The defence of the defendants is that Sy.No.219/10 has not been included in the schedule of the sale deeds marked as Exs.P.4 to P.6 and such defence cannot be taken as the extent of lands available to the defendants, in various survey numbers, would show that it is only by including the land in Sy.No.219/10 could the defendants have alienated the extents of land set out in Exs.P.5 and P.6. He would submit that if the above factors are taken into account it would be clear that the plaintiff development agreement has been executed by the persons who are the owners of suit schedule property and that the plaintiff is in physical possession of the suit schedule property. (5) Sri K.S. Murthy, the learned Senior Counsel would contend that the suit schedule property sets out the boundaries of the lands in question and the comparison of these boundaries that the boundaries in the sale deeds would show that the land mentioned in the schedule of the suit and the injunction application would fall within the boundaries of the sale deeds marked as Exs.P.4 to P.6. 10. Sri P. Rajasekhar, learned counsel appearing for respondent No.2, at the very outset raises the preliminary objections on locus and maintainability of the suit. 11. Sri P. Rajasekhar would submit that the plaintiff has ostensibly filed the suit on the basis of power of attorney given by his principals, who are claiming to be the owners of disputed piece of land. He submits that the suit has not been filed by the plaintiff on behalf of his principals. The suit has been filed by the plaintiff in his own name and the same is not maintainable as there is no authorisation or power, granted to the plaintiff, to file a case in his own name. He submits that the suit has not been filed by the plaintiff on behalf of his principals. The suit has been filed by the plaintiff in his own name and the same is not maintainable as there is no authorisation or power, granted to the plaintiff, to file a case in his own name. On the question of locus, Sri P. Rajasekhar would submit that the development agreement-cum-power of attorney which is the basis for the plaintiff to claim possession does not show that possession had been handed over to the plaintiff at all. The clause titled 'possession' in the development agreement only mentions that the plaintiff is entitled to enter into land for the purpose of construction of houses etc., and there is no statement anywhere that possession of the disputed site had been handed over to the plaintiff. In such circumstances, the plaintiff would have no locus to contest the suit. 12. Sri P. Rajasekhar would rely upon the power of attorney as well as the development agreement to buttress his argument apart from relying upon the judgments in Church of Christ Charitable Trust and Educational Charitable Society rep. by its Chairman vs. Ponniamman Educational Trust rep. by its Chairperson/Managing Trustee, (2012) 8 SCC 706 (para 19) and State Bank of Travancore vs Kingston Computers India Private Limited., (2011) 11 SCC 524 (para 14) to contend that the suit is not maintainable as filed by the plaintiff and in any event the plaintiff has no locus to file the suit. Consequently, application for injunction would also have to be dismissed. 13. Sri P. Rajasekhar would point out that the disputed land is said to be in Sy.No.219/10 and Sy.No.221/1 and the plaintiff, for the purpose of claiming title and possession of land in Sy.No.219 of 2010 to an extent of Ac.0.98 cents, claims that the sale deed marked as Ex.P.5 included Ac.0.98 cents of land falling within Sy.No.219/10 even though the said survey number has not been mentioned in the schedule to the sale deed. 14. Sri P. Rajasekhar while explaining the stand of the plaintiff states that the case of the plaintiff is that the defendants were owners of Ac.4.56 cents of land in Sy.No.221/2 and had sold Ac.2.52 cents to M/s. Swarna Builders, by way of registered deed of sale dated 28.11.1994, registered as document No.158/1995. 14. Sri P. Rajasekhar while explaining the stand of the plaintiff states that the case of the plaintiff is that the defendants were owners of Ac.4.56 cents of land in Sy.No.221/2 and had sold Ac.2.52 cents to M/s. Swarna Builders, by way of registered deed of sale dated 28.11.1994, registered as document No.158/1995. Thereafter, the defendants are said to have sold Ac.3.00 cents of land in Sy.No.221/2 to the predecessors in title of the principles of the plaintiff. As the extent of land sold in Sy.No.221/2 would then aggregate to Ac.5.52 cents when the land available was only Ac.2.04 cents, it would mean that the defendants had also sold land belonging to them in Sy.No.219/10. 15. Sri P. Rajasekhar would draw the attention of this Court to Ex.P.4 dated 09.04.1997 under which Ac.3.00 cents of land in Sy.No.221/2 is said to have been sold. He would contend that the corrections in the extent of land sold and the southern boundary in the schedule and the inclusion of a government value at the beginning of the sale deed showing the government value on Ac.1.146 cents are interpolations inserted later and as such, the documents itself is a disputed document. He would point out that the actual extent of land sold under this deed of sale is only Ac.2.02 cents which would be in line with the actual extent of land owned by the defendants in Sy.No.221/2. He would submit that the said deed of sale is a disputed document and cannot be relied upon by the Court on ground of an injunction. 16. While adverting to the complaint filed by the defendants in O.S.No.99 of 2022, he would contend that the said plaint cannot be looked into for the purpose of determining the question of possession. He would submit that any admission said to have been made in any earlier suit is not admissible nor can be looked into by the Court in any subsequent suit and relies upon the judgment in Ramabai Shriniwas Nadgir vs. Government of Bombay, AIR 1941 Bombay 144 and Basant Singh vs. Janki Singh and Others, AIR 1967 SCC 341 (para 5). He would submit that the proviso to Section 58 of the Evidence Act makes it clear that any alleged earlier admissions cannot be accepted in a subsequent proceeding and consequently, it would not be appropriate for this Court to base its order on the earlier allegation in O.S.No.99 of 2022 that Ac.0.54 cents of land in Sy.No.219/10 is not in the possession of the defendants. 17. Sri P. Rajasekhar would submit that the Court would, before grant of any interlocutory injunction, consider the three factors of prima facie case, balance of convenience and irreparable injury and relies upon the judgments in Colgate Palmolive (India) Limited vs. Hindustan Lever Limited, (1999) 7 SCC 1 (paras 21 & 24), Nawab Mir Barkat Ali Khan vs. Nawab Zulfiquar Jah Bahadur and Others, AIR 1975 A.P 187 (para 15) and Kashi Math Samsthan and Another vs. Srimad Sudhindra Thirtha Swamy and Another, AIR 2010 SCC 296 (para 13) for this proposition. He would also submit that an additional facet, which has been a subsequent development of law is the question of the strength of the case and the difficulties that the defendant would face in the event of an injunction being granted and relies upon the judgment in Makers Development Services Pvt. Ltd vs. M. Visvesvaraya Industrial Research and Development Centre, AIR 2012 SCC 437 (paras 11 & 12). 18. Sri P. Rajasekhar would contend that both the Courts below had held that the plaintiff had not made out a prima facie case of title and consequently, applying the provisions mentioned above, it would not be appropriate to grant any injunction in favour of the plaintiff. 19. Learned counsel for the petitioner would also contend that identification of the property is not possible on the basis of the schedule given by the plaintiff. He would also contend that even assuming that the statements of the defendants relating to their possession over Ac.0.54 cents of land in Sy.No.219/10 is taken into account, the same would not make out a case for grant of injunction as the identification of the property of admeasuring Ac.0.54 cents is not possible and consequently no injunction can be granted on that basis. He relies upon the judgments of Yerra Venkatesh vs Nathi Mallesh and Others, 2011 SCC Online AP 538 (para 11) and Pushpalatha A.N vs. K.N. Gopal, Laws (KAR) 2023 7 269. 20. He relies upon the judgments of Yerra Venkatesh vs Nathi Mallesh and Others, 2011 SCC Online AP 538 (para 11) and Pushpalatha A.N vs. K.N. Gopal, Laws (KAR) 2023 7 269. 20. Sri P. Rajasekhar, on the scope of revision before this Court would also contend that the Courts have been loath to interfere with findings of fact of the trial Courts and the appellate Courts unless such findings were found to be perverse or wrong on the face of the record. He would submit that no such circumstances arise in the present case as the trial Court and the appellate Court, have given cogent reasons for arriving at the finding that no prima facie case has been made out by the plaintiff and nothing has been shown to this Court to differ from that view. 21. Sri Korrapati Subba Rao, the learned counsel appearing for respondent No.1 would submit that the plaintiff had approached this Court, by way of W.P.No.36190 of 2022 against the Gram Panchayat on the ground that the gram panchayat was unlawfully interfering with the activities of the plaintiff, over the disputed site. The defendants herein, who had not been arrayed as parties in the writ petition, had filed application to implead themselves and had pointed out the discrepancies in the documents of title to make out their case. This Court had granted an interlocutory order of status quo to be maintained by all the parties on 16.11.2022. Subsequently, the plaintiff approached the Civil Court, by way of the present suit. However, the plaintiff had suppressed the factum of the filing of the earlier writ petition and the directions granted by this Court. He would submit that such suppression clearly disentitles the plaintiff for grant of any interim injunction as grant of such injunction is a matter of equity and suppression of fact disentitles the plaintiff from grant of any such injunction. He relied upon Arunima Baruah vs Union of India and Others, (2007) 6 SCC 120 (para 12) for this proposition. Apart from the above submissions, he adopts the submissions made by Sri P. Rajasekhar. 22. He relied upon Arunima Baruah vs Union of India and Others, (2007) 6 SCC 120 (para 12) for this proposition. Apart from the above submissions, he adopts the submissions made by Sri P. Rajasekhar. 22. Sri Korrapati Subbarao would also submit that the building permission granted to the plaintiff has been suspended by the Gram Panchayat and as such, the plaintiff would not be in a position to carry out any further work and consequently non grant of an injunction would not in any manner effect the balance of inconvenience or irreparable injury to the plaintiff. 23. Sri Narra Srinivasa Rao, learned counsel appearing for Sri Muni Krishna Reedy, learned counsel for respondent No.3 contends that the valuation of the suit is improper and suit should have been valued at a lower value consequent to which the suit would have to be filed before the Junior Civil Judge and could not have been filed before the trial Court which is the Court of the Senior Civil Judge. 24. Sri Narra Srinivasa Rao would also submit that any finding in favour of the plaintiff and consequential issue of injunction would jeopardize the interest of the defendants as buildings would have been constructed over the land creating a fait accompli which would become irreversible. Consequently, grant of such injunction may not be permissible. CONSIDERATION OF THE COURT: 25. The preliminary objection raised by Sri P. Rajasekhar as to the maintainability of the suit and consequent maintainability of the injunction application would have to be considered before this Court can go into the merits of the case. 26. The contention of Sri P. Rajasekhar is that the plaintiff is only the power of attorney holder of the owner of the land and as such, the plaintiff is not entitled to maintain the suit in his own name and without impleading his principals as the plaintiffs in the case. The judgments cited by Sri P. Rajasekhar were on the question of whether a power of attorney holder can carry out any acts which are not expressly authorised in the power granted to the agent. The judgments cited by Sri P. Rajasekhar were on the question of whether a power of attorney holder can carry out any acts which are not expressly authorised in the power granted to the agent. To the mind of this Court, these judgments may not arise in the matter as the question before this Court is not on the power of the agent but on the question of whether an agent can by himself file a suit instead of filing the suit in the name of his principal being represented by the agent. This issue has been regulated by Section 230 of the Contract Act. The said provision arises in relation to enforcement of contracts which is not the present case here. However, the Hon'ble Supreme Court while considering the question of whether such a course of action is permissible, dehors Section 230 of the Contract Act, in the case of Global Energy Ltd & Another vs. Central Electricity Regulatory Commission, (2006) 1 SCC 442 had held that in certain circumstances, a power of attorney holder can maintain an action on his own merit. The question of whether such circumstances are available in the present case or not, is a matter which needs to be left open for determination by the trial Court. 27. On merits, it is the admitted case on both sides that the disputed land was originally owned by the defendants and the plaintiff is claiming title and ownership over the said land on the basis of a deed of sale said to have been executed by the defendants in favour of third parties who had ultimately transferred the land to the principals of the plaintiff. Thus, the possession of the plaintiff over the disputed land has to be determined on the basis of the contents of the said sale deed dated 09.04.1997, which had been marked as exhibit A4. The contents of this document have been disputed by the defendants stating that there has been an interpolation of the extent of land after striking out the original statement in the deed of sale and as such, the document cannot be relied upon to determine title and possession. This Court in such circumstances, cannot give a finding prima facie, or otherwise, on the basis of such a document, that the Plaintiff is in possession of the disputed Ac.0.98 cents of land. 28. This Court in such circumstances, cannot give a finding prima facie, or otherwise, on the basis of such a document, that the Plaintiff is in possession of the disputed Ac.0.98 cents of land. 28. Sri P. Rajasekhar, citing the Judgment of the Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By L.Rs. & Ors., (2008) 4 SCC 594 (paragraphs 13 to 16 & 21) Contended that in view of the dispute relating to title, a mere suit for injunction is not permissible and consequently the application for injunction would also not be maintainable. This is again an issue which revolves on the question of whether the aforesaid deed of sale deed dated 09.04.1997, marked as Ex.P.4 has been tampered with or not. Further, the said question is best left open to the trial Court as any observation of this Court would affect the matter in the trial Court. 29. The petitioner is relying upon the admission of the defendants in O.S.No.99 of 2022 wherein the defendants had stated that an extent of Ac.0.54 cents is in the possession of the plaintiff. The Hon'ble Bombay High Court in Ramabai Shriniwas Nadgir vs. Government of Bombay, AIR 1941 Bombay 144 had held that a party is not bound by admission in his pleading except for the purposes of the suit in which the pleading is delivered. This principle was affirmed by the Hon'ble Supreme Court in Basant Singh vs. Janki Singh and Others, AIR 1967 SCC 341 which had held that an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true. In the light of the above exposition of law, the earlier admission in O.S.No. 99 of 2022 would not assist the plaintiff herein. 30. It is settled law that the three factors of prima facie, balance of convenience and irreparable injury needs to be made out before grant of an injunction. In the present case, the prima facie proof of possession is based on a document which is disputed. On the question of balance of convenience and irreparable injury, the building permission granted to the plaintiff is not available for any further construction in view of the actions of the Gram Panchayat. In the present case, the prima facie proof of possession is based on a document which is disputed. On the question of balance of convenience and irreparable injury, the building permission granted to the plaintiff is not available for any further construction in view of the actions of the Gram Panchayat. In such circumstances, the case of balance of convenience or irreparable injury is also not made out. 31. Consequently, the present Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.