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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE: VISAKHAPATNAM.
Present: Sri A.Radha Krishna, B.Com., B.L., IV Addl. District Judge, Visakhapatnam.
Monday, the 10th day of October, 2011.
CIVIL MISCELLANEOUS APPEAL No. 50 of 2010.
Between :
1.Muvvala Demudamma, W/o.late Krishna, Hindu, aged 50 years, Household duties, R/at D.No.23-294, Pedagadili, Old Dairy Farm Post, Visakhapatnam-530040.
2.Muvvala Venkata Krishna Ramana, S/o.late Krishna, Hindu, aged 33 years, Private Employee, rest-do-.
3.Muvvala Suribabu, S/o.late Krishna, Hindu, aged 27 years, Private Employee, rest-do-.
4.Muvvala Mutyalamma, W/o.Pydiraju, Hindu, aged 25 years, Household duties, rest-do-. … Appellants.
And
M/s Sri Varaha Lakshmi Narasimha Swamivari Devasthanam, Simhachalam Rep.by its Executive Officer, Simhachalam, Visakhapatnam. … Respondent.
ON APPEAL FILED AGAINST THE ORDER AND DECRETAL ORDER DT.06.07.2010 IN I.A.202/2009 IN O.S.277/2009 ON THE FILE OF
I ADDL. SENIOR CIVIL JUDGE AT VISAKHAPATNAM.
Between :
1.Muvvala Demudamma.
2.Muvvala Venkata Krishna Ramana.
3.Muvvala Suribabu.
4.Muvvala Mutyalamma. … Petitioners/Plaintiffs.
And
M/s Sri Varaha Lakshmi Narasimha Swamivari Devasthanam, Simhachalam Rep.by its Executive Officer, Simhachalam, Visakhapatnam. … Respondent/Defendant.
This appeal coming on 23.09.2011 for final hearing before me in the presence of M/s N.Madhava Rao, Radha Rani & CH.V.S.K.N.Rao, Advocates for the appellants and of Sri A.Venu Gopal Rao, Advocate for the respondent and this appeal having stood over for consideration till this day, the court delivered the following:- 2 IV ADJ COURT, VSP,
CMA 50/2010
J U D G M E N T
This Civil Miscellaneous Appeal is directed against the Order and Decreetal Order dated 06.07.2010 rendered in I.A.No.202/2009 in O.S.No.277/2009 on the file of I Addl. Senior Civil Judge Court at Visakhapatnam, whereby whereunder the Learned
Senior Civil Judge, made absolute the Status-Quo orders passed by him on 25.03.2009.
2.The appellants herein who are the petitioners/plaintiffs in IA.No.202/2009 in
OS.No.277/2009 filed that application under order 39 Rules-1 and 2 of CPC, against the
respondent herein Sri Varaha Lakshmi Narasimha Swamivari Devasthanam, represented by its Executive Officer, Visakhapatnam, for ad-interim injunction restraining them from interfering with the peaceful possession and enjoyment of the plaint schedule property.
3.For the sake of convenience the parties will be referred with their status in the trial court.
4.It is the contention of the plaintiffs that the husband of the 1st petitioner and father of the petitioners 2 to 4 Muvvala Krishna acquired the plaint schedule property during his life time which is a residential house described in the plaint schedule and it is a poramboku and his name was also shown as one of the persons entitled for house patta and he paid house tax for more than 15 years and he died on 20.09.2006 and the plaintiffs are his Legal heirs and they are in possession and enjoyment of the same. Originally as the house was a thatched house during the rainy season it was damaged and hence, when they were constructing RCC building in that place, the respondent- Devasthanam objected and tried to evict them forcibly and as there was a threat of dispossession they filed the suit as well as the present petition for the aforesaid relief.
5.The claim of the petitioners was resisted by the defendant-Devasthanam, by filing their counter denying the material allegations in the affidavit filed in support of the petition inter-alia contending that the plaintiffs are trying to encroach upon the Devasthanam land located in S.No.275/Part in Adivivaram village which is abutting the land bearing Survey No.1/1 of Gopalapatnam and all these lands belong to erstwhile Raja of Vizianagaram Estate and they were donated and vested in the defendant and after enquiry under Inams Abolition Act, the Mandal Revenue officer, Visakhapatnam and Pendurthi Mandal have granted Ryothwari pattas to the respondent-Devasthanam and the Government also issued a G.O.Ms.No.406 dt. 20.06.2000 declaring that the 3 IV ADJ COURT, VSP,
CMA 50/2010
entire extent of the hill situated in S.No.275 of Adivivaram village belonging to the Sri Varalakshmi Narasimhaswamy temple and the above G.O., was in pursuance of settlement arrived at between the temple and revenue department and a PIL was also filed in WP.No.11812/2005 wherein the Hon'ble High court was also passed interim orders which was later modified ordering the Endowment lands shall not be sold except by way of public auction and further in pursuance of the orders in W.P.M.P.No.4133/2009 in WP.No.3184/2009 the High Court also directed the Government not to entertain or grant any permission for construction of building in the said survey No.275 and the said Writ petition is still pending and in another Writ Petition No.4416/2009 the Hon'ble High Court granted interim direction against the Govt., and as such, no injunction can be granted against the respondent. They also contend that the plaintiffs have not furnished any survey number for the plaint schedule property and the boundaries furnished by them are in fact are found in S.No.275/P of Adivivaram Village for which sketch was also filed showing the same and thus, the petitioners are encroaching the land of the respondent-Devasthanam and the property tax receipts were obtained from Pedagadhili Gram Panchayat. Thus, they sought for dismissal of the petition.
6.In the trial court, on behalf of the petitioners/plaintiffs, they exhibited as many as 17 documents and on behalf of the respondent, they marked Exs.B-1 to B-8. Exs.A-1 to A-8 are the property demand tax notices and receipt standing in the name of husband of the 1st petitioner Muvvala Krishna for the years 1993 to 2005; Ex.A-9 is the property tax provisional receipt issued by GVMC in the name of husband of 1st petitioner; Ex.A-10 is the property tax demand notice issued by GVMC; Ex.A-11 is the Special notice for property tax; Exs.A-12 to 15 are property tax receipts; Ex.A-16 is the electricity consumption charges; Ex.A-17 is the property tax receipt standing in the name of husband of the 1st plaintiff; Ex.B-1 is the photograph of the plaint schedule property; Ex.B-2 is the report submitted to the Executive Officer, Simhachalam Devasthanam; Ex.B-3 is the sketch prepared by the surveyor of the Temple; Ex.B-4 is the office copy of the GO.Ms.No.406 dt.20.06.2000; Ex.B-5 is the xerox copy of the
WP.No.32800/97; Ex.B-6 is the xerox copy of WP.No.15055/2005; Ex.B-7 is the xerox
copy of the WP.No.5792/09.
7.After considering the rival contentions of parties and also material on record, the learned Senior Civil Judge, confirmed the STATUS-QUO orders passed by him on 25.03.2009.
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8.Aggrieved by passing and confirming the interim Orders by the leaned Senior
Civil Judge, the petitioners/plaintiffs have come up with this Civil Miscellaneous appeal,
inter-alia contending that the trial court having found their prima-facie possession and enjoyment over the property and balance of convenience is also in their favour instead of granting injunction the trial court passed Status-quo order and it is against the law and thus, they contend that the order of the trial court is illegal and temporary injunction has to be granted in their favour till the disposal of the suit.
9.On the other hand, the learned counsel for the respondent contends that the trial court found that they are the owners of the land and even passing of the Status-quo order is untenable and thus, they sought for dismissal of the appeal.
10.Admittedly the respondent-Devasthanam has not preferred any cross-appeal or cross-objections challenging the findings rendered by the trial court in this regard.
11.Now, the point that emerges for determination are:
1. Whether the appellants are entitled for temporary injunction as sought by them till the disposal of the suit?
2. If so, whether the Order and Decreetal Order of the Trial Court Dt;06.07.2010 in I.A.No.202/2009 in OS.No.277/2009 is sustainable?
12.POINT Nos. 1 and 2:-
As seen from the orders of the trial court, the learned Senior Civil Judge found the petitioners are in possession and enjoyment of the petition schedule property and they also proved the prima-facie case of their possession and balance of convenience and if the injunction is not granted they will be put to greater inconvenience and they will also suffer irreparable injury, if they are evicted forcibly which is also not permissible under law and if the petitioners are allowed to make construction by granting temporary injunction as prayed for and if they are found to be not entitled for permanent injunction in the suit then they wound suffer irreparable loss having completed construction by investing money. Hence, in those circumstances the trial court directed both the parties to maintain Status-quo. Here it may be pointed out that the trial court found the land belongs to the devasthanam temple as per the documents exhibited by them which factum is also not disputed by the petitioners, by filing any documents or rejoinder.
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13.Here it may be pointed out that there cannot be any injunction against the true owner and it is not the case of the petitioners that they are the tenants of the Devasthanam temple and as such, only under due-process of law they are liable to be evicted. But anyhow, considering that some constructions are made by the appellants and as the trial court ordered Status-quo till the disposal of the suit, instead of vacating the status-quo order, I feel it is a fit case a direction can be given to the trial court to dispose of the main suit within three months from the date of receipt of this judgment which will finally decide the rights of the parties. Thus, these points are answered accordingly.
14.In the result, the Civil Miscellaneous Appeal is dismissed, and the trial court is directed to dispose of the main suit within three months from the date of receipt of this
Judgment and further both the parties are directed to co-operate the trial court in disposing of the matter as directed by this court. No order as to costs.
Dictated to the Personal Assistant, transcribed by him, corrected and pronounced by me
in open Court, this the 10th day of October, 2011.
IV ADDL. DISTRICT JUDGE
Visakhapatnam.
Copy to,
The IV Addl. Senior Civil Judge(FTC), Visakhapatnam along with L.C.Record ( IA.202/2009 in O.S.277/2009).
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CMA 50/2010
Date of Presentation : 18.08.2010 Date of Filing : 30.09.2010
IN THE COURT OF THE IV ADDL. DISTRICT JUDGE: VISAKHAPATNAM.
Present: Sri A.Radha Krishna, B.Com., B.L., IV Addl. District Judge, Visakhapatnam.
Monday, the 10th day of October, 2011.
CIVIL MISCELLANEOUS APPEAL No. 50 of 2010.
Between :
1.Muvvala Demudamma, W/o.late Krishna, Hindu, aged 50 years, Household duties, R/at D.No.23-294, Pedagadili, Old Dairy Farm Post, Visakhapatnam-530040.
2.Muvvala Venkata Krishna Ramana, S/o.late Krishna, Hindu, aged 33 years, Private Employee, rest-do-.
3.Muvvala Suribabu, S/o.late Krishna, Hindu, aged 27 years, Private Employee, rest-do-.
4.Muvvala Mutyalamma, W/o.Pydiraju, Hindu, aged 25 years, Household duties, rest-do-. … Appellants.
And
M/s Sri Varaha Lakshmi Narasimha Swamivari Devasthanam, Simhachalam Rep.by its Executive Officer, Simhachalam, Visakhapatnam. … Respondent.
ON APPEAL FILED AGAINST THE ORDER AND DECRETAL ORDER DT.06.07.2010 IN I.A.202/2009 IN O.S.277/2009 ON THE FILE OF
I ADDL. SENIOR CIVIL JUDGE AT VISAKHAPATNAM.
Between :
1.Muvvala Demudamma.
2.Muvvala Venkata Krishna Ramana.
3.Muvvala Suribabu.
4.Muvvala Mutyalamma. … Petitioners/Plaintiffs.
And
M/s Sri Varaha Lakshmi Narasimha Swamivari Devasthanam, Simhachalam Rep.by its Executive Officer, Simhachalam, Visakhapatnam. … Respondent/Defendant.
This Civil Miscellaneous Appeal is filed by the Appellants/Petitioners-Plaintiffs praying to set aside the Order and Decreetal Order dated 06.07.2010 rendered in I.A.No.202/2009 in O.S.No.277/2009 on the file of I Addl. Senior Civil Judge's Court at Visakhapatnam and allow the same with costs throughout.
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A fixed court fee of Rs.3/- is paid under Art.3 of Sch.II of A.P.C.F and S.V.Act.
This appeal coming on 23.09.2011 for final hearing before me in the presence of M/s N.Madhava Rao, Radha Rani & CH.V.S.K.N.Rao, Advocates for the appellants and of Sri A.Venu Gopal Rao, Advocate for the respondent and this appeal having stood over for consideration till this day, this court doth order; and
D E C R E E
1)that the Civil Miscellaneous Appeal be and the same is hereby dismissed;
2)that the trial court be and is hereby directed to dispose of the main suit within three months from the date of receipt of this Judgment;
3)that both the parties be and are hereby directed to co-operate the trial court in disposing of the matter as directed by this court; and
4)that there be no order as to costs.
Given under my hand and the seal of this court, this the 10th day of October, 2011.
IV ADDL. DISTRICT JUDGE
Visakhapatnam.
MEMORANDUM OF COSTS
For Appellants: For Respondent:
No costs memo is filed on either side.
IV ADJ/VSP.