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M/s. Kanakadhara Constructions v/s Smt. K. Jhansi Lakshmi Bai & Others

    Civil Revision Petition No.3159 of 2005

    Decided On, 30 September 2005

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE T.CH. SURYA RAO

    For the Petitioner : B. Adinarayana Rao, Advocate. -For the Respondents: M.V. Durga Prasad, Advocate.



Judgment Text

(Petition under Article 227 of the Constitution of India to against the order dated 17-16-2005 in I.A.No.637 of 2005 in O.S.No.709 of 2005 on the file of the court of V senior Civil Judge, City Civil Court Hyderabad.)


The instant revision petition is directed against the order, dated 17.06.2005, passed by the learned V Senior Civil Judge, City Civil Court, Hyderabad, in I.A.No.637 of 2005 and I.A.No.774 of 2005 in O.S.No.709 of 2005.


The unsuccessful second respondent in I.A.No.637 of 2005, the petitioner in I.A.No.774 of 2005, is the revision petitioner.


The first respondent herein laid the suit in O.S.No.709 of 2005 for possession under Section 6 of the Specific Relief Act (for short ‘the Act’). Her case as averred, inter alia, in the plaint seems to be that one Sumanth Kale (R2) was the owner and possessor of the land as described in schedule appended to the plaint. He sold the said land in favour of his wife and one Smt. Vijaya Bowgikar jointly under registered sale deed, dated 29-06-1985. The vendees in turn sold the property in her favour under registered sale deed dated 20-06-2001 ad since then she has been in possession and enjoyment of the same. The revision petitioner, who is a builder, and respondents 3 to 5, 7 and 8, who are the neighbouring owners of the schedule property, approached her with a proposal of developing the petition schedule property, for which she agreed and signed certain documents enabling the revision petitioner and others to get no objection from the District Collector and relevant permissions and approval from the M.C.H. However, she received a caveat petition filed by the revision petitioner on 26-11-2004. wherein he claimed that she was a stranger to him and to the suit properties and had been interfering with the construction being made by him without having any right or possession. On receiving the caveat petition, she issued a legal notice, dated 16-01-2005, to all the respondents. The respondent No.6, in reply, stated, inter alia, that she had not purchased the plaint schedule property and she had only purchased a flat from R2, the revision petitioner. Taking advantage of the Pongal vacation, the revision petitioner illegally trespassed into the plaint schedule property on 31-12-2004 and started making construction and hence the suit under Section 6 of the Act.


In the concomitant petition filed in I.A.No.637 of 2005, she sought for a temporary injunction restraining the respondents from making illegal constructions, Respondents 1, 3, 4 and 8 remained ex parte. Respondents 5 to 7 did not file any counter. The second respondent, revision petitioner, alone resisted that application. Initially, the Court granted status quo order in I.A.No.637 of 2005. The second respondent, revision petitioner, alone resisted that application. Initially, the Court granted status quo order in I.A.No.637 of 2005. The revision petitioner, therefore, filed I.A.No.774 of 2005 seeking to vacate the said order. During the course of enquiry in both the petitions, on the side of the plaintiff, petitioner, Exs.P1 to P13 were not marked and on the side of the contesting respondents Exs.R1 R15 were got marked. After having heard either side and considered documents filed, under the impugned order, the Court below allowed I.A.No.637 of 2005 and restrained the revision petitioner from making illegal constructions of flats by means of temporary injunction, while dismissing I.A.No.774 of 2005. The revision petitioner is, therefore, assailing the said order.


The main suit, O.S.No.709 of 2005, was admittedly filed under Section 6 of the Act seeking possession on the premise that during the Pongal vacation on 31-12-2004 the revision petitioner illegally trespassed into the plaint schedule property and prior thereto the plaintiff was in possession and enjoyment of the property having purchased the same by means of a registered sale deed, dated 20-06-2001, from her vendors, who in turn purchased the said property from the original owner, the second respondent herein, by means of registered sale deed dated 29.06.1985. The first respondent-plaintiff, therefore, claims to have been in possession of the plaint schedule mentioned properties since 20.06.2001 and dispossession specifically on 31-12-2004. In the suit of this nature, the question of title is not germane. Section 6 of the Act envisages a suit for possession on the premise of dispossession of the plaintiff without his consent of immovable property otherwise than in due course of law. When the suit is filed under Section 6 of the Act for possession, the sole consideration for the Court is possession. The scope of enquiry is thus limited to possession within six months immediately preceding the date of filing of the suit. In such a suit, the defendant cannot set up a defence of title in himself. The only defence that can legitimately be set up is antecedent possession. It is obvious from sub-section (1) of Sec 6 of the Act itself, which says that the person dispossessed can recover possession notwithstanding any other title that may be set up in such suit. Thus, the scope of enquiry is limited to the question of possession.


Obviously the possession is now with the revision petitioner, regardless of the fact that whether it is legal or illegal. The Court below under the impugned order under an erroneous view has gone into the question of title of the petitioner on a prima facie consideration. In the process, it has considered the presumption that possession follows title. Even as per the own case of the first respondent, the revision petitioner started making construction after having encroached upon the suit schedule mentioned site.


Sri B. Adinarayana Rao, learned counsel for the revision petitioner, represents that superstructure has been raised and as can be seen from the report of the Commissioner as many as five floors have been raised. Excluding the ground floor. In the first floor. Four flats have already been constructed, which have been in semi-finished stage. Same is the stage in second and third floors. Insofar as fourth floor is concerned, the construction material has been noticed. In the fifth floor the Commissioner has noticed no brickwork. However, in the sixth floor he has noticed centering work being done. Thus, it is obvious that a superstructure has already come and is in existence.


Given the state of affairs, as can be seen from the report of the Commissioner and having regard to the fact that the revision petitioner is in possession, whether it is expedient in the interest of justice to interdict him from proceeding with the construction work further. The power of the Court in such a summary suit to issue interim injunction to ensure that the property in dispute is not alienated, altered, demolished, removed or destroyed during the pendency of the suit, cannot be doubted. When the fact situation warrants, the court can interdict the respondent-defendant from alienating the property or altering it, because of the fact that the Court cannot eventually grant the relief of removal of the structure in favour of the plaintiff while decreeing the suit. Nor the Court can award damages to the plaintiff and direct defendant to pay the plaintiff the cost of removing such structures. In that view of the matter, it is expedient always to direct the parties to maintain the status quo. However, in the instant case, the superstructure has already been constructed by the revision petitioner, although the construction work has not yet been completed. At this stage, by directing him to stop further construction would in any manner sub-serve the interest of the plaintiff or not is the question. If the plaintiff is entitled to recover possession in a summary enquiry. If the plaintiff is entitled to recover possession in a summary enquiry, it is of no significance and relevance whether the construction is half through or is a completed one. It is the contention of the learned counsel for the revision petitioner that if the construction is stopped, the material gathered would go waste and would result in irreparable loss to the revision petitioner. It is to be remembered that the revision petitioner appears to have been constructing flats for the purpose of sale to the commuters. The contention of the learned counsel for the first respondent Sri. M.V. Durga Prasad is that if such alienation is permitted, it would lead to multiplicity of proceedings and create further complications in the matter. Therefore, the revision petitioner shall have to be restrained from selling the flats to the prospective purchasers. The Court has to see the balance of convenience. As per law any alienation made during the pendency of the suit, the transactions are hit under Section 52 of the Transfer of Property Act. The intending purchasers will be taking high risk on account of the pendency of the suit. But, if the alienations are stopped, it may result in monetary loss to the revision petitioner. Instead of interdicting him from proceeding with the further construction, it is expedient in the interest of justice to direct him to file an undertaking that he would remove at his own risk and cost the superstructure, in the event of the suit being decreed. It is noteworthy here that the plaint schedule property is only an area measuring 200 sq. yards, whereas the area occupied by the existing superstructures is far more than that. In identical facts and circumstances, the Apex Court in Maharwal Khewaji Trust (Regd.) v. Baldev Dass (2004) 8 SCC 488) upheld the order of the law of lis pendens and the construction, if any, put by the respondent will have to be removed at his own risk and costs, in the event of suit being decreed. When the trial Court granted an order of temporary injunction prohibiting the respondent from alienating the suit property and putting up any construction thereon, the District Court modified the order as indicated hereinabove, which was eventually upheld by the Apex court Having rega

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rd to the facts and circumstances in this case, I am of the considered view that it is not expedient to grant any injunction in favour of the first respondent prohibiting the revision petitioner from proceeding with the further constructions having regard to the stage at which the construction now exists. Instead, it is expedient to hold that alienations, if any, to be made by the revision petitioner will be subject to the law of lis pendens and result in the suit and directing him to furnish an undertaking to the effect that the constructions made by him would be removed at his own risk and cost in the event of the suit being decreed in favour of the first respondent. In the result, the revision petition is allowed in part holding that the alienations to be made, if any, by the revision petitioner will be subject to the law of lis pendens and result of the suit and directing him to file an undertaking before the Court below to the effect that he would remove at his own risk and cost the constructions made by him in the event of the suit being decreed. In the circumstances, no order as to costs.
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