IN THE COURT OF THE II ADDITIONAL CHIEF JUDGE
CITY CIVIL COURTS : HYDERABAD
Monday, the 12th day of MARCH, 2012
Present: Sri A.HARI HARA NADHA SARMA,B.Sc.,B.L.,
II ADDITIONAL CHIEF JUDGE
I.A.No.2917/2011; I.A.No.2918/2011;
IA.No.3278/2011 and IA.No.3279/2011
in
O.S.No.743 of 2011
I.A.No.2917 of 2011:
Between:
P.V.S.Lakshmi ... Petitioner/Plaintiff
AND
P.M.Krishna Mohan ... Respondent/Defendant
I.A.No.2918 of 2011:
Between:
P.V.S.Lakshmi ... Petitioner/Plaintiff
AND
P.M.Krishna Mohan ... Respondent/Defendant
I.A.No.3278 of 2011:
Between:
P.V.S.Lakshmi ... Petitioner/Plaintiff
AND
P.M.Krishna Mohan ... Respondent/Defendant
I.A.No.3279 of 2011:
Between:
P.V.S.Lakshmi ... Petitioner/Plaintiff
AND
P.M.Krishna Mohan ... Respondent/Defendant
Page 2IA291711BOS74311injnetc
These Interlocutory Applications coming on 15022012 for final hearing and disposal before me in the presence of Sri Eranki Phani
Kumar, Advocate for the Petitioner in all these applications, and of Sri
P.Rajesh, Advocate for the Respondent in all these applications, and having stood over for consideration till this day, this Court delivered the following:
COMMON ORDER
1)One P.V.S.Lakshmi (hereinafter referred to as 'plaintiff') is the petitioner and one P.M.Krishna Mohan (hereinafter called as 'defendant') is the respondent in all the present four applications under disposal.
2)Plaintiff filed the suit in O.S.No.743/2011 against the defen dant for the following reliefs: (a) to declare the plaintiff as the absolute and lawful owner of plaint schedule property measuring 48 sq. yds. and for delivery of possession, (b) to direct the defendant to reerect the structures in the plaint schedule property, (c) to direct the defendant to pay mesne profits at the rate of Rs.7,000/ p.m. from the date of suit till the date of delivery of possession of suit schedule property, (d) awarding costs of the suit and other incidental reliefs.
3)(i) The case of plaintiff in brief is that she is the sister of defendant. Her father P.Krishnaiah was the absolute owner and posses
Page 3IA291711BOS74311injnetc sor of the property bearing No.221161/1/A/1, situated at Tilak
Nagar, New Nallakunta, Hyderabad measuring 192 sq. yds. together with constructions thereon. Said P.Krishnaiah, father of plaintiff and defendant, executed a registered Will bearing document No.143/1995
dated 2791995 and by cancelling the same, he has executed another
registered Will document No.159/1998 dated 2591998 as his last
Will. Under the last Will, said P.Krishnaiah testator bequeathed 144 sq.
yds. of open land in favour of the defendant. Balance portion of 48 sq. yds. is suit schedule property comprising of two rooms portion, was named as 'Janaki Krishna Mandir' and he has bequeathed the same in favour of the plaintiff. Testator P.Krishnaiah died on 1121998.
Defendant sold the property measuring 144 sq. yds. received by him and requested the plaintiff to permit him to stay in the property be queathed in favour of plaintiff. By considering the relationship, the plaintiff allowed the defendant to stay as licensee in the plaint sche dule property. The defendant developed illwill to grab the plaint sche dule property belonging to plaintiff and sent a registered legal notice
dated 5112011 with false allegations informing necessity of renova
tion of dilapidated structures and also referred to another Will dated 27101998 allegedly executed by father of plaintiff and defendant.
Page 4IA291711BOS74311injnetc
(ii) The further case of the plaintiff is that the plaintiff and defendant were appointed as care takers. Inspite of objections from the plaintiff, the defendant proceeded with highhanded demolition of structures over the plaint schedule property which belongs to the plaintiff. Therefore, the present suit is filed for declaration, recovery of possession and other incidental reliefs.
4)I.A.No.2917/2011 is filed under Order 39 Rules 1 and 2
C.P.C. for granting temporary injunction restraining the defendant from alienating or encumbering the petition schedule property in any way in favour of third parties.
5)I.A.No.2918/2011 is filed under Order 39 Rules 1 and 2
C.P.C. for granting temporary injunction restraining the respondent/ defendant, his men, agents, workers, servants etc. from altering or raising unauthorised construction over the plaint schedule property pending disposal of the main suit.
6)I.A.No.3278/2011 is filed under Section 151 C.P.C. for im plementation of ex parte orders dated 24112011 passed by this Court in I.A.No.2918/2011 with police aid.
7)I.A.No.3279/2011 is filed invoking Order 26 Rule 9 C.P.C.
Page 5IA291711BOS74311injnetc for appointment of advocatecommissioner for taking note of physical features of the suit schedule property and for taking photos of the suit schedule property.
8)Case of defendant in brief is that the suit and the interlocu tory applications are not maintainable and the plaintiff is guilty of suppression of material facts. Defendant was living along with the testator P.Krishnaiah in the suit schedule property. On 2791995, registered Will was executed by late P.Krishnaiah and as per the said
Will, a portion of property consisting of two rooms be treated as 'Janaki
Krishna Mandir' and worshiped by all his children and his daughters shall have access to the 'Janaki Krishna Mandir' to do some bhajans and prayers in memory of their father and mother on their birthdays and it was also mentioned in the Will that the plaintiff will be incharge of the
Janaki Krishna Mandir and nowhere in the Will it is mentioned that the suit property absolutely belongs to plaintiff. Defendant further pleaded that his father executed another Will dated 2971998 withdrawing allotment made in the Will dated 2791995 and 5101997 and defen dant was authorised for maintenance of Janaki Krishna Mandir as plaintiff was preoccupied in her household activities and also employ ment as teacher. It is further pleaded by defendant that P.Krishnaiah
Page 6IA291711BOS74311injnetc has also executed a registered Will dated 2591998 and declared the defendant as absolute owner with all rights and title over the property admeasuring 144 sq. yds. By virtue of Will dated 2591998, defen dant is the absolute owner with all rights and title to the property measuring 144 sq. yds. and in respect of the suit schedule property measuring 48 sq. yds. plaintiff and defendant shall hold the same and they have to carry out the functions of the Mandir. As the suit schedule property became old and dilapidated, the defendant requested the plaintiff to consent for reconstruction and when the plaintiff did not co operate to implement the covenant of the Will, the construction activity was taken up. The allegations as to defendant requesting the plaintiff for permitting him to stay in the plaint schedule property and per mission was granted etc. are all false. According to the Will, the plain tiff and defendant both are care takers of plaint schedule property known as Janaki Krishna Mandir and the plaintiff's contention that she is the owner of the plaint schedule property by virtue of Will is not acceptable.
9)In the counter itself, the defendant has quoted certain Head
Notes of some authorities as to suppression of material facts, abuse of process of law, fraud etc. Further, the defendant alleged that the alle
Page 7IA291711BOS74311injnetc gations as to plaintiff giving money to defendant for paying property tax etc. are all false and in the Will dated 2591998 and 27101998, there is no authority granted either to plaintiff or to the defendant to alienate, mortgage or sell the suit schedule property. Since the pro perty became old and dilapidated, renovation activity was taken up with good intention. The intention of the plaintiff is to knock away the property.
10)In respect of prayer for granting injunction restraining alienation, the defendant objected that there is no scope for alienat ing the property either by plaintiff or by defendant in view of recitals in the Will. Hence, there is no necessity to grant injunction restraining alienation.
11)In respect of prayer for granting injunction restraining alteration of physical features of the property, the defendant objected that in view of the building becoming old and dilapidated, construction activity was taken up and as both the plaintiff and defendant are care takers of the property, the defendant's right to make proceed with the construction of property cannot be restrained.
12)In respect of prayer for implementation of orders by way of
Page 8IA291711BOS74311injnetc police aid, the defendant claimed that by the date of passing of interim injunction orders by this Court, the construction was already comple ted and construction activity was not taken after knowledge of injunc tion orders. Therefore, it is not necessary for passing any orders for implementation of orders, much less with police aid and petition is filed for harassing the defendant.
13)In respect of prayer for appointment of advocate – commis sioner, defendant is claiming that the petition is unnecessary and entire construction/renovation was completed by the date of receiving interim injunction orders.
14)In all the applications, reply affidavit is filed by the plaintiff disputing the contentions of counter filed on behalf of the respondent and in the reply affidavit, it is claimed that the constructions are raised without permission from the Municipal Corporation and the defendant is trying to convert the suit schedule property as his residential portion and the defendant has neglected the Court orders.
15)Plaintiff has also filed another application I.A.No.3277/ 2011 in I.A.No.2918/2011 by invoking Order 39 Rule 2 (a) C.P.C. for taking action for violating the injunction orders passed by this Court.
Page 9IA291711BOS74311injnetc
16)Heard both sides at length. Learned counsel for the plain tiff argued that as per the last Will of testator P.Krishnaiah dated 259 1998, the plaintiff is the owner of the suit schedule property and the
Will dated 27101998 relied on by the defendant is fabricated one and defendant is not entitled to continue his illegal activities like altering the property and alienating the same to any third parties etc. and even for implementation of the orders passed by this Court on 24112011, it is necessary to pass orders granting police aid and it is also necessary to appoint an Advocate – Commissioner for noting the stage of construc tion of the property apart from restraining the respondent/defendant from alienating the property to any third parties.
17)Per contra, learned counsel for the respondent/defendant argued that the last Will of P.Krishnaiah father of plaintiff and defen dant is dated 27101998 and as per the said Will, defendant is also appointed as care taker.
18)Both sides did not choose to mark any documents, how ever, during arguments referred to the documents filed along with their pleadings. On behalf of plaintiff, registered Will dated 2591998, legal notice dated 5112011 and certain photographs are filed. On behalf of
Page 10IA291711BOS74311injnetc the defendant photostat copies of Wills dated 2781998, 3071995, 2591998 and 27101998 are filed. Since all the Will deeds filed by defendant are xerox copies, they are not marked. Documents filed on behalf of the petitioner/plaintiff are marked in I.A.No.2918/2011 while pronouncing orders as follows: Will dated 2791998 is marked as Ex
P1 and legal notice dated 5112011 as Ex P2. Photographs are marked as Exs P3 to P7.
19)Now the points for determination are:
1) Whether there is prima facie case in favour of the plaintiff for granting temporary injunction restrain ing the respondent/defendant from alienating of altering the physical features of the plaint schedule property and whether there is balance of conveni ence in favour of the plaintiff for passing any such orders and whether the plaintiff will suffer irrepa rable loss if injunction orders are not granted in her favour?
2) Whether there are sufficient grounds for appoint ing AdvocateCommissioner to note the physical features of the suit schedule property?
3) Whether there are sufficient grounds for ordering police aid and for passing any orders for imple mentation of injunction orders passed by this Court in respect of restraining the defendant from alter ing the physical features of the plaint schedule property?
Page 11IA291711BOS74311injnetc
20)POINTS: Admitted facts are, the plaintiff and defendant are sister and brother; testator P.Krishnaiah is father of both parties;
Testator P.Krishnaiah cancelled previous Wills and executed fresh Will; as per the Wills Testator has referred the suit schedule property as 'Janaki Krishna Mandir' and defendant is in possession of the property.
21)The points in dispute are, whether both plaintiff and defen dant are appointed as care takers; whether the suit schedule property was given to the plaintiff with absolute right; whether the testator intended to use the suit schedule property as Mandir for prayers by his family members; whether the defendant is in permissive possession; whether the defendant is entitled to make constructions in the pro perty; whether the defendant is continuing construction activity inspite of Court orders; and whether there is any necessity for appointing
Advocate – Commissioner for noting the physical features.
22)Plaintiff is married daughter of late P.Krishnaiah and she has been living separately with her family. Defendant was given some property and sold the same. The recitals in the Will Ex P1 dated 259 1998 (relied on by plaintiff) in respect of the suit schedule property are as follows: “The remaining constructed portion i.e., two rooms
Page 12IA291711BOS74311injnetc in house bearing No.221116/1/A/1, Tilaknagar, New Nallakunta,
Hyderabad admeasuring 48 sq. yds. (20” x 26”) in which at present I am living will remain as 'Janaki Krishna Mandir' and same shall be hold by Smt. P.V.S.Lakshmi to carry the functions of Mandir after my life.”.
23)Defendant relied on another Will dated 27101998. Xerox copy of the same is filed, but not marked. However, he has referred to the contents of the Will dated 27101998 in his counter. As pleadings can be looked into and as the recitals of the Will are reproduced in the counter, they are referred to since they are shown as part of the plead ings. They are as follows: “The remaining constructed portion that is two rooms in house bearing No.221161/1/A/1, Tilaknagar, New
Nallakunga, Hyderabad – 500 044, admeasuring 48 sq. yds. (20 x 26) in which at present I am living will remain as 'Janaki Krishna Mandir' and same shall be hold by Smt. P.V.S.Lakshmi and by youngest son
P.M.Krishna Mohan to carry the functions of the Mandir after my life time. They are not empowered to sell, mortgage or let out the same etc.”. These recitals are referred in para 10 of the counter affidavit.
The conditions in the alleged subsequent Will are adding the defendant also as care taker and imposing a covenant that the property shall not
Page 13IA291711BOS74311injnetc be sold. Whether the intention of the testator was to keep the suit schedule property as Mandir for the family and whether absolute rights are given to plaintiff are the subject matters of the suit. For the pre sent, according to the defendant's version and according to admitted and disputed Wills, the property shall be used as 'Janaki Krishna
Mandir'. Even according to the defendant, plaintiff is also a care taker.
Exclusive right to defendant is not contemplated under the Will refer red and relied on by the defendant. The defendant has sought for per mission under Ex P2 from the plaintiff. The contention of the defen dant is that the building was becoming old and dilapidated. There fore, he proceeded with construction activity. Whether the defendant is justified in proceeding with construction activity will be the subject matter of the suit. But for the present, whether defendant can be restrained from making further constructions and whether defendant can be restrained from making alienation are the relevant points need attention. Since the defendant is not having exclusive right and as plaintiff is also care taker, there exists a strong prima facie case in favour of the plaintiff for restraining the defendant from alienating the property or from making any further construction It appears that put ting the property to commercial use is also patently against the Will of
Page 14IA291711BOS74311injnetc the testator. With regard to appointment of advocate – commissioner also, this Court finds that there exists a prima facie case. The appoint ment of advocatecommissioner will facilitate for noting the physical features as existing now. Any further alteration will make the defen dant accountable. If advocatecommissioner is not appointed, the defendant would claim that the alterations that are made even in future are made prior to filing of the suit etc. Therefore, to note the status quo of physical features existing, this Court finds that appointment of
Advocate – Commissioner is necessary.
24)For the purpose of implementation of orders granting police aid by invoking Section 151 C.P.C. there shall be strong material.
Further, the plaintiff has already filed an application under Order 39
Rule 2 (A) C.P.C. for taking action for committing contempt of orders of this Court. The evidence that will be adduced and appreciated in those proceedings and the observations that may be made in the appli cation filed for police aid may to some extent overlap. Further, the appointment of AdvocateCommissioner and noting of physical features will help as a primary measure to note the physical features existing now and to pass any further orders for implementation in the event of
Page 15IA291711BOS74311injnetc any violation by respondent. Therefore, this Court finds that passing of any orders in the application filed for police aid and implementation is unnecessary. However, the right of the plaintiff to renew his applica tion for implementation after advocatecommissioner's report with spe cific material as to violation will help.
25)In view of the discussion made above, and upon consider ing existence of prima facie case, balance of convenience, irreparable loss, avoiding multiplicity of litigation, point No.1 relating to granting of temporary injunction in respect of restraining the defendant from alienating and altering physical features is decided in favour of the plaintiff. In respect of appointment of advocatecommissioner also, the point framed is decided in favour of the plaintiff. But in respect of the point relating to prayer for passing orders and granting police aid for implementation of injunction order is decided against the plaintiff observing that the plaintiff can renew the application at a subsequent time, if necessary, with proper material.
26)In view of the discussion made above and conclusions drawn, the four applications under consideration are disposed as follows;
Page 16IA291711BOS74311injnetc
(a) I.A.No.2917/2011 is allowed. Injunction restraining defen dant from making alienation in respect of the suit schedule property granted earlier on 24112011 is made absolute.
(b) I.A.No.2918/2011 is allowed. Injunction granted earlier
dated 24112011 restraining the defendant from making any sort of
constructions and altering physical features is made absolute;
(c) I.A.No.3279/2011 is allowed. Advocate Sri K.Raghu, is appointed as commissioner for noting physical features of the suit sche dule property, stage and age of the construction if necessary with the aid of technical expert and his fee is fixed at Rs.4,000/ (Rupees four thousands only). For Commissioner report, time is granted till 94 2012 and he shall execute warrant with due notice and by obtaining work memos of both sides.
(d) I.A.No.3278/2011 is closed, reserving the right of the peti tioner/plaintiff to renew his application, if necessary, in future with proper material.
Dictated to the Personal Assistant, transcribed and typed
by him, corrected and pronounced by me in the Open Court, this the 12th day of MARCH, 2012.
II ADDITIONAL CHIEF JUDGE
City Civil Court, Hyderabad
Page 17IA291711BOS74311injnetc
APPENDIX OF EVIDENCE
Witnesses Examined
For the Petitioner: For the Respondent:
NIL NIL
Documents Marked (in I.A.No.2918/2011)
For the Petitioner:
Ex P1:Will dated 2791998.
Ex P2:Legal notice dated 5112011.
Ex P3:Photograph.
Ex P4:Photograph.
Ex P5:Photograph.
Ex P6:Photograph.
Ex P7:Photograph.
For the Respondent: NIL
II ACJ, CCC, Hyd'bad.