IN THE COURT OF VI JUNIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
Present: Sri J. Upender Rao, VII Junior Civil Judge FAC VI Junior Civil Judge City Civil Court, Hyderabad.
Friday, this the 04th day of March, 2022
I.A.No . 90 of 2022
in
O.S.No.435 of 2022
Between:
Shiv Kumar Goel, S/o. Late Omkarmalji Tajpuriya, aged about: 70 years, Occupation: Business, R/o. H.No.217564, Khokarwadi, Charkaman, Hyderabad, Telangana – 500002.
...Petitioner/Plaintiff
AND
1. Dinesh Kumar Gupta, S/o. Late Hazarimal Gupta, aged about: 50 years, Occupation: Business, R/o. H.No.162146/28/1 & 2, Flat No. 105, Akbar Bagh, Malakpet, Hyderabad, Telangana – 500 036.
2. Raj Rani, W/o. Rajender Kumar, D/o. Late Hazarimal Gupta, aged about: 53 years, Occupation: Housewife, R/o. H.No. 161027/99, Race Course Road, M.C.H. Colony, Hyderabad, Telangana – 500 036.
3. Rita Agarwal, W/o. Vishnu Kumar Agarwal, D/o. Late Hazarimal Gupta, aged about: 48 years, Occupation: Housewife, R/o. H.No.5939, Flat No.202, Annapurna Legend Apartments, Basheerbagh, Hyderabad, Telangana – 500 029.
4. Sangeeta Agarwal, W/o. Nirmal Kumar Agarwal, D/o. Late Hazarimal Gupta, aged about: 48 years, Occupation: Housewife, R/o. H.No.216715 to 721/A, Chelapura, Charminar, Hyderabad, Telangana – 500 002.
2 I.A.No.90 of 2022 IN O.S.No.435 of 2022
5. Sheetal Agarwal, W/o. Ritesh Agarwal, D/o. Late Hazarimal Gupta, aged about: 45 years, Occupation: Housewife, R/o. Villa No. 133, Sunrise Valley, Near Pillar No. 179, Upperpally, Attapur, Hyderaguda, K.V.Ranga Reddy, Telangana – 500 048.
6. SK. Abdul Mujid, S/o. SK Phurhan Ali, aged about: 50 years, Occupation: Business, R/o. H.No.204532, Near Khilwath Ground, Charminar, Hyderabad, Telangana – 500 002.
7. Shaik Sabir alias Shaik Shabir, S/o. Shaik Murtuza, aged about: 44 years, Occupation: Business, R/o. H.No.204226/6, Shah Ali Banda, Khilwath, Hyderabad, Telangana – 500 002.
8. Aleya Begum, W/o. Shaik Sabir alias Shaik Shabir, aged about: 35 years, Occupation: Business, R/o. H.No.204226/6, Shah Ali Banda, Khilwath, Hyderabad, Telangana – 500 002.
9. The SubRegistrar, Charminar, Charminar SubRegistration Office, D. No. 2214, Darul Shifa Main Road, Opposite MESCO Diagnostic Centre, Hyderabad, Telangana – 500 024
10.The Agrasen Cooperative Urban Bank Limited, Having its registered office at: 211824, 1st Floor, Tolaram Building, Rikabgunj, Hyderabad, Telangana – 500 002, Represented by its Branch Manager, Renu Kedia, W/o. Vivek Gupta Kedia.
11.Greater Hyderabad Municipal Corporation, Town Planning Section, H.O, CC Complex, Tank Bund Road, Hyderabad, Telangana – 500 063. Represented by its Commissioner.
...Respondents/Defendants
*** 3 I.A.No.90 of 2022 IN O.S.No.435 of 2022
This petition is coming before me for final hearing on 23.02.2022 in the presence of Sri Arvind Kumar Agarwal, Learned Counsel for the petitioner/plaintiff and of Sri Purushotam Laal, Learned Counsel for respondent/defendant Nos.1 to 5 and of Sri P. Chandrasekhar,
Learned Counsel for respondent/defendant Nos.6 to 8 and of Sri Nand
Kishore Vyas, Learned Counsel for respondent No.10, and respondent
Nos.9 and 11 were set exparte and upon hearing both sides and perusing the material on record and the matter having stood over for consideration, till this day this Court passed the following:
:ORDER:
This petition is filed by the petitioner Under Order XXXIX Rules 1 & 2 r/w section 151 of CPC praying this Court to grant adinterim injunction order restraining the Respondents/Defendants, their agents, representatives, attorneys, assigns, etc., or whomsoever claiming through them, from alienating, encumbering, transferring, creating third party rights, interest, charge, lease, mortgage, gift, etc., or dealing in whatsoever manner, in respect of petition schedule properties pending disposal of the main suit.
2.The brief averments of the affidavit are as follows: The petitioner being the coparcener, cosharer, jointowner and joint possessor have instituted an O.S.No. 50 of 1997 before the Court of the
Hon’ble X Additional Chief Judge (Fast Track Court), City Civil Courts at
Hyderabad (Old O.S.No. 602 of 1990 before the Court of the Hon’ble IV
Additional Judge, City Civil Court, Hyderabad) for Partition and
Separate Possession against Omkarmalji Tajpuriya and Six others in respect of his joint family properties as enumerated in the Plaint in
OS.No. 50 of 1997 (Old O.S.No. 602 of 1990) and also an Interlocutory
Application vide I.A. No. 1049 of 1990 in OS. No. 602 of 1990 under
Order XXXIX Rules 1 & 2 of CPC seeking Temporary Injunction in 4 I.A.No.90 of 2022 IN O.S.No.435 of 2022 respect of the Petition Schedule Properties enumerated in that Petition.
The Court of the Hon’ble IV Additional Judge, City Civil Court,
Hyderabad was pleased to pass an Interim Order dt:15061990 in
I.A.No.1049 of 1990 in OS.No.602 of 1990 and granted Temporary
Injunction against the Respondents/Defendants in that aforesaid Suit including their agents, servants, GPAs, or their men or subordinates or anyone claiming through or under them from transferring or alienating by way of Sale, Gift or otherwise any mode from bringing or creating any encumbrance over the properties mentioned in the Schedule shown in the said Order until further orders. The said order dt:15061990 in
I.A.No.1049 of 1990 in O.S.No.602 of 1990 is subsisting, existing and continued to be in force till date.
2(a).That the Hon’ble X Additional Chief Judge (Fast Track Court),
City Civil Courts at Hyderabad, was pleased to pass a Judgment and
Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) and thereby Decreed the Suit. That, by virtue of said Judgment and Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old
O.S.No.602 of 1990) 1/8th share was allotted to the petitioner in respect
of the Schedule of Properties shown as Annexure ‘A’ and Annexure ‘B’ as mentioned in the aforesaid Preliminary Decree. Further, the aforesaid
Judgment and Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) has become final and binding upon the parties to the lis. Pursuant to aforesaid Judgment and Preliminary Decree dated.14082002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) the petitioner had filed an I.A.No.427 of 2005 in O.S.No.50 of 1997 under
Order XX Rule 18 of CPC praying the Hon’ble Court to pass Final Decree as per the Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old 5 I.A.No.90 of 2022 IN O.S.No.435 of 2022
O.S.No.602 of 1990) for Partition and Separate Possession in respect of
the Schedule of Properties shown as Annexure ‘A’ and Settlement of
Accounts in respect of the Schedule of properties shown as Annexure ‘B’ as mentioned in the aforesaid Preliminary Decree. The aforesaid Final
Decree proceedings in I.A.No.427 of 2005 in O.S.No.50 of 1997 (Old
O.S.No.602 of 1990) is pending adjudication and being contested by all
the Respondents/Defendants to that Final Decree Application.
2(b). That Respondent/Defendants Nos.1 to 5 herein are the Legal
Heirs of Hazarimal who is none other than Defendant No.5 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990). Further, the Respondents/Defendants have dishonestly and fraudulently executed and registered a Partition
Deed dated. 10022021 bearing Document No.436 of 2021 among themselves. That, Respondents/Defendants Nos.6 to 8 are the purchasers of Serial No.5 of the Schedule of Property shown in
Annexure ‘A’ of the Judgment and Preliminary Decree dt:14082002 in
O.S.No.50 of 1997 (Old O.S.No.602 of 1990) being the Petition Schedule
Property‘A’ & ‘B’ herein, by virtue of registered Sale Deeds of even
dt:15072021 bearing Documents No.2101 of 2021 & 2102 of 2021
respectively and they are claiming the same through the Legal Heirs of
Late. Hazarimal who are none other than Respondents/Defendants
Nos.1 to 5 herein.
2(c).The Respondent/Defendant No.9 herein is the Bank from whom
Respondents/Defendants Nos.6 to 8 obtained loan by depositing their
Title Deeds vide registered Memorandum of Deposit of Tile Deeds of even
dt:15072021 bearing Documents No.2103 of 2021 & 2104 of 2021
respectively. That legal heirs of Late Hazarimal (Defendant No. 5 in 6 I.A.No.90 of 2022 IN O.S.No.435 of 2022
O.S.No.50 of 1997 (Old O.S.No.602 of 1990) who are the
Respondents/Defendants Nos.1 to 5 herein have surreptitiously invented and executed a registered Partition Deed dated.10022021 bearing Document No.436 of 2021 registered in the Office of the
Defendant No.10 i.e., SubRegistrar Office, Charminar in respect of double storied building bearing H. No. 217374, admeasuring 366.77
Sq.Yards or 306.34 Sq. Meters, situated at Shakkar Khota, Hyderabad,
Telangana which is shown as Schedule “A” Property in said Partition
Deed and also in respect of Schedule “B” Property as mentioned in the aforesaid Partition Deed.
2(d). That house bearing Municipal No.217374, admeasuring 366.77
Sq. Yards or 306.34 Sq. Meters, situated at Shakkar Khota, Hyderabad,
Telangana which is shown as Schedule “A” Property in aforesaid registered Partition Deed dt:10022021 is nothing but the subject matter of Serial No. 5 of the Schedule of Property shown in Annexure ‘A’ of the Judgment and Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) passed by the Hon’ble X Additional Chief
Judge (Fast Track Court), City Civil Courts at Hyderabad. Further, even
though the Order dt:15061990 in I.A.No.1049 of 1990 in O.S.No.602 of 1990 passed by the Court of the Hon’ble IV Additional Judge, City
Civil Court, Hyderabad, is in subsistence and existence and the Final
Decree Proceedings are pending adjudication in I.A.No.427 of 2005 in
O.S.No.50 of 1997 (Old O.S.No.602 of 1990) and the specific, exclusive
and definite shares are yet to be allotted and the Final Decree in
O.S.No.50 of 1997 (Old O.S.No.602 of 1990) yet to be passed, yet the
legal heirs of Late. Hazarimal (Defendant No.5 in O.S.No.50 of 1997 (Old
O.S.No.602 of 1990) who are the Respondents/Defendants Nos.1 to 5
7 I.A.No.90 of 2022 IN O.S.No.435 of 2022 herein have surreptitiously invented, created and executed the aforesaid registered Partition Deed dt:10022021 bearing Document No. 436 of 2021 with an oblique motive only to defraud and deprive legal and legitimate rights of the petitioner in respect of the said House Property, behind back. That the petitioner neither a party nor witness nor signatory to the aforesaid registered Partition Deed dt:10022021 and unless the specific shares are crystallized, determined and allotted by meets and bounds under the Final Decree proceedings which are pending adjudication in I.A.No.427 of 2005 in O.S.No.50 of 1997 Under
Order XX Rule 18 of CPC before the Court of the Hon’ble X Additional
Chief Judge (Fast Track Court), City Civil Courts at Hyderabad, the aforesaid registered Partition Deed dt:10022021 is not binding on the petitioner and the same is nonest and void in eye of law. Even otherwise also the aforesaid registered Partition Deed dt:10022021 bearing Document No.436 of 2021 is vitiated by doctrine of lis pendens.
That, as the aforesaid registered Partition Deed dt:10022021 bearing
Document No.436 of 2021 is void abinitio and nullity, the petitioner need not seek the relief of Declaration seeking nullity of that Document.
2(e).That on 04062021, Respondents/Defendants Nos.7 and 8 have caused a Public Notice in “Daily Hindi Milap” newspaper, Hyderabad,
Telangana Edition dt:04062021 through A.A. Abid, Engineer, exhibiting that H.No.217374, admeasuring 270.77 Sq. Yards, situated at Shakkar Khota, Hyderabad, Telangana is owned and possessed by
Respondent/Defendant No.1 herein and the same is agreed to be purchased by Respondents/Defendants Nos.7 and 8 and they have also paid earnest money to Respondent/Defendant No.1 herein and by virtue of the aforesaid Public Notice they have called for objections from 8 I.A.No.90 of 2022 IN O.S.No.435 of 2022 general public in respect of aforesaid House Property within one week from the date of aforesaid Publication. That adverting to the aforesaid
Public Notice dt:04062021, the petitioner got issued a Legal Notice
dt:07062021 to A.A. Abid, Engineer and to Respondents/Defendants
Nos.7 and 8 through registered post with acknowledgment due dt:07 062021 and lodged his objections in respect of the aforesaid Public
Notice and brought to their notice expressing that, not to purchase
House bearing No.217374, situated at Shakkar Kotha, Hyderabad as it is subjudice before the Court in pending Final Decree proceedings vide
I.A.No.427 of 2005 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) on the file of Hon’ble X Additional Chief Judge, City Civil Court, Hyderabad.
That, said Legal Notice which was sent to A.A. Abid, Engineer, the same was acknowledged by him vide Postal Acknowledgment dt:09062021.
The Legal Notice dt:07062021 which was sent to
Respondents/Defendants Nos.7 and 8 got returned with an endorsement “Unclaimed R/S 17062021”.
2(f).That in addition to the aforesaid Legal Notice dt:07062021 through which the petitioner got submitted his objections in relation to aforesaid Public Notice dt:04062021, the petitioner had also personally served a Letter dt:09062021 to the District Registrar, Hyderabad
District and also to Respondent/Defendant No.9 i.e., SubRegistrar,
Charminar bringing to their notice not to register any nature of
Document in respect of House bearing Municipal No.217374, situated at Shakkar Kotha, Hyderabad and also further not to register any nature of document in respect of the properties under the Preliminary
Decree dt:14082002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990).
The said Letter was received and acknowledged on the same day by 9 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Respondent/Defendant No.9. That Respondent/Defendant No.9 upon receipt of the aforesaid letter dt:09062021 submitted by the petitioner, the Respondent/Defendant No.9 had issued a printout of List of
Prohibited Properties to the petitioner. The said printout of list of prohibited properties as issued by Respondent/Defendant No.9 to the
Plaintiff also discloses that the schedule of properties shown as
Annexure ‘A’ as mentioned in the aforesaid Preliminary Decree dt:1408 2002 in O.S.No.50 of 1997 (Old O.S.No.602 of 1990) passed by the
Court of the Hon’ble X Additional Chief Judge (Fast Track Court), City
Civil Courts at Hyderabad are shown under the list of prohibited properties, as such, Respondent/Defendant No.9 will not entertain and register in that regard and gave oral assurance to the petitioner that no
Document would be entertain and register by Respondent/Defendant
No.9 in that regard.
2(g).That on 07012022 when the petitioner had visited the house bearing Municipal No.217374, situated at Shakkar Kotha, Hyderabad, and found some demolition activity in the aforesaid house property and took photograph of it and on enquiry he came to know that some undisclosed third parties had purchased the aforesaid house property.
That, when he questioned them about their identity, they maintained stoic silence which was of no avail to the petitioner. The petitioner on the same day i.e., on 07012022 was compelled to visit the office of
Respondent/Defendant No.9 i.e., SubRegistrar, Charminar to ascertain the status in respect of aforesaid house property. As
Respondent/Defendant No.9 was evading and avoiding to his inquiries and as no action was forthcoming from Respondent/Defendant No.9, he was compelled to apply Statement of Encumbrance on Property from 10 I.A.No.90 of 2022 IN O.S.No.435 of 2022
MeeSeva.
2(h). That upon receipt of the Statement of Encumbrance on Property
dt:10012022 in respect of the aforesaid house property, to his dismay,
he got shocked and surprised by taking note of its contents and the details of the registered documents pertaining to aforesaid house property as reflected in the statement of Encumbrance on property and immediately the petitioner had also obtained the certified copy of registered Partition Deed dt:10022021 bearing Document No.436 of 2021 executed among Respondents/Defendants Nos.1 to 5 herein, certified copy of registered Sale Deed dt:15072021 bearing Document
No.2101 of 2021 executed by Respondent/Defendant No.1 in favour of
Respondent/Defendant No.6, certified copy of registered Sale Deed
dt:15072021 bearing Document No.2102 of 2021 executed by
Respondent/Defendant No.1 in favour of Respondents/Defendants
Nos.7 and 8, certified copy of registered Memorandum of Deposit of title deed dt:15072021 bearing Document No. 2103 of 2021 executed by the Respondent/Defendant No.6 in favour of Respondent/Defendant
No.10 and certified copy of registered memorandum of deposit of title deed dt:15072021 bearing Document No.2104 of 2021 executed by the
Respondents/DefendantNos.7and8infavourof
Respondent/Defendant No.10. That all the aforesaid registered
Documents were executed and got registered on the same day in the office of the Respondent/Defendant No.9 i.e., Before the SubRegistrar,
Charminar. That, the petitioner got knowledge of these facts and about these registered documents only when the same were furnished to him only on 10012022.
11 I.A.No.90 of 2022 IN O.S.No.435 of 2022 2(i).That Respondent/Defendant No.1 under the guise of aforesaid nonest and invalid registered partition deed dt:10022021 bearing
Document No.436 of 2021 executed among Respondents/Defendant
Nos.1 to 5, the Respondent/Defendant No.1 had fraudulently and dishonestly executed a registered Sale Deed dt:15072021 bearing
Document No.2101 of 2021 in favour of Respondent/Defendant No.6, in respect of part of all that portion of house bearing municipal No.217 374,(PTIN.No.1052103874), admeasuring 96.00Sq. Yards, equivalent to 80.26 Sq. Meters, situated at Shakkar Kotha, Hyderabad, Telangana and bounded by North: Lane ; South : House No. 217374; East: House
No.217375; and West: Lane. Hereinafter referred to as Petition
Schedule Property‘A’. It is pertinent to mention here that, the aforesaid
Petition Schedule Property‘A’ is nothing but part and parcel of Serial
No.5 of the Schedule of Property shown in Annexure ‘A’ of the Judgment and Preliminary Decree dt:14082002 in O.S.No.50 of 1997 (Old
O.S.No.602 of 1990) passed by the Hon’ble X Additional Chief Judge
(Fast Track Court), City Civil Court at Hyderabad. The petitioner is neither a party nor signatory nor witness to aforesaid registered sale deed dt:15072021 bearing Document No.2101 of 2021, as such, the same not binding upon him and moreover the aforesaid registered Sale
Deed dt:15072021 bearing Document No.2101 of 2021 is nonest and void in view of the Order dt:15061990 in I.A.No.1049 of 1990 in
O.S.No.602 of 1990 passed by the Court of the Hon’ble IV Additional
Judge, City Civil Court, Hyderabad and also in view of the pending
adjudication of Final Decree proceedings in Interlocutory Application vide I.A.No.427 of 2005 in O.S.No.50 of 1997 Under Order XX Rule 18 of
CPC before the Court of the Hon’ble X Additional Chief Judge (Fast 12 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Track Court), City Civil Court at Hyderabad. That, aforesaid registered sale deed dt:15072021 bearing Document No.2101 of 2021 is vitiated by fraud and Doctrine of lis pendens. Further, aforesaid registered Sale
Deed dt:15072021 bearing Document No.2101 of 2021 runs contrary to the well settled principle of law enunciated under the latin maxim “nemo dat quod non habet” meaning thereby, “No Person can transfer a better title than what he himself has” and “A person cannot transfer a title, which he himself does not have”.
2(j).That similarly Respondent/Defendant No.1 under the guise of aforesaid nonest and invalid registered Partition Deed dt:10022021 bearingDocumentNo.436of2021executedamong
Respondents/Defendants No.1 to 5, the Respondent/Defendant No.1 had fraudulently and dishonestly executed a registered Sale Deed dt:15 072021 bearing Document No.2102 of 2021 in favour of
Respondent/Defendant No.7 and 8, in respect of part of all that House bearing Municipal No.217374, (PTIN No.1052103874), admeasuring 270.77 Sq. Yards, equivalent to 226.39 Sq. Meters, situated at Shakkar
Kotha, Hyderabad, Telangana and bounded by North: Lane; South:
Neighbour’s House; East: Neighbour’s House; and West: House No.217
373. Hereinafter referred to as Petition Schedule Property‘B’.
2(k). That Respondent/Defendant No.6 under the guise of nonest and invalid registered Sale Deed dt:15072021 bearing Document No.2101 of 2021 in respect of Petition Schedule Property‘A’, the
Respondent/Defendant No.6 had also fraudulently and dishonestly executed and registered Memorandum of Deposit of Title Deed dt:1507 2021 bearing Document No.2103 of 2021 in favour of 13 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Respondent/Defendant No.10 for financial assistance to purchase the
Petition Schedule Property‘A’. That, aforesaid registered Memorandum of Deposit of Title Deed dt:15072021 bearing Document No.2103 of 2021 is vitiated by fraud and Doctrine of lis pendens. Further, aforesaid registered Memorandum of Deposit of title deed dt:15072021 bearing
Document No.2103 of 2021 runs contrary to the well settled principle of law enunciated under the latin maxim “nemo dat quod non habet” meaning thereby, “No Person can transfer a better title than what he himself has” and “A person cannot transfer a title, which he himself does not have”.
2(l).That Respondent/Defendant Nos.7 and 8 under the guise of non est and invalid registered sale deed dt:15072021 bearing Document
No.2102 of 2021 in respect of Petition Schedule Property‘B’, the
Respondent/Defendants No.7 and 8 had also fraudulently and dishonestly executed and registered Memorandum of Deposit of title deed dt:15072021 bearing Document No.2104 of 2021 in favour of
Respondents/Defendant No.10 for financial assistance to purchase the
Petition Schedule Property‘B’.That, aforesaid registered Memorandum of Deposit of Title Deed dt:15072021 bearing Document No.2104 of 2021 is vitiated by fraud and Doctrine of lis pendens. Further, aforesaid registered Memorandum of Deposit of title deed dt:15072021 bearing
Document No.2104 of 2021. That as stated supra, upon receipt of the aforesaid registered instruments/documents, on 11012022, the petitioner had submitted a complaint under letter dt:11012022 to the
Respondent/Defendant No.11 i.e., the Commissioner, GHMC and also to the Deputy Commissioner, GHMC, Circle No.9, Hyderabad and requested them not to grant any building permission in respect of the 14 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Petition Schedule Property ‘A’ and Petition Schedule Property ‘B’. The
Respondent/Defendant No.11 have received and acknowledged the said letter on 12012022 and further have also issued office acknowledgment dt:12012022. Similarly, Deputy Commissioner,
GHMC, Circle No.9, Hyderabad have also received and acknowledged the said letter dt: 11012022 on 11012022 and 12012022.
2(m). That despite of an order of temporary injunction vide Order dt:15 061990 in I.A.No.1049 of 1990 in O.S.No.602 of 1990 passed by the
Court of the Hon’ble IV Additional Judge, City Civil Court, Hyderabad being in subsistence and existence and despite the Final Decree
Proceedings being pending adjudication in Interlocutory Application
dt:13072005 vide I.A.No.427 of 2005 in O.S. No. 50 of 1997 Under
Order XX Rule 18 of CPC before the Court of the Hon’ble X Additional
Chief Judge (Fast Track Court), City Civil Court at Hyderabad and as the Schedule of Properties mentioned in the Annexure‘A’ of the
Preliminary Decree dt:14082002 in O.S.No.50 of 1997(Old O.S.No.602 of 1990) which includes the present Petition Schedule Property ‘A’ and ‘B’ are yet to be divided and allotted exclusively by meets and bounds to respective parties to the aforesaid Original Suit. Further submitted his objections with utmost promptitude to A.A. Abid, Engineer, by way of
Legal Notice dt: 07062021 pertaining to the Public Notice in “Daily
Hindi Milap” newspaper, Hyderabad, Telangana edition dt: 04062021 and despite issuance of his Letter dt: 09062021 to District Registrar,
Hyderabad District and to Respondent/Defendant No. 9 i.e., Sub
Registrar, Charminar and that Petition Schedule Property A and B are being disclosed in the List of Prohibited Properties and despite the petitioner submitted a Letter/Complaint dt:11012022 to 15 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Respondent/Defendant No.11, yet the Respondents/Defendants 1 to 8 in collusion and handinglove with each other and also in collusion with Respondents/Defendants No. 9 to 11 have dishonestly and fraudulently invented and created the registered instruments and Deeds without any fear of law or wrath of it and under the guise of those registered instruments and Documents, the Respondents/Defendants unabashedly and unabatedly are under the process of further creating thirdparty rights by changing the nature of physical structure of the
Petition Schedule Property ‘A’ and Petition Schedule Property ‘B’ and also are in the process of creating thirdparty rights by way of Sale,
Transfer, Lease, Mortgage, etc., in that regard. Thus, said illegal and unlawful acts of Respondents/Defendants herein are continuous and is amply reflected from the brazen manner in which they systematically played fraud and continuing to enrich themselves, thereby the acts of
Respondents/Defendants is clear and vivid in flouting the law and also disgracefully displaying their illegal tendencies, as if disregard for law is their avocation and to deceive others with dishonest and fraudulent practices is their way of functioning.
2(n). That in the circumstances, the petitioner had established a prima facie case, and have every legitimate expectation of succeeding the original suit, and in the event the interim relief as sought for, is not granted, the same would cause irreparable and irretrievable loss to the petitioner, the Balance of convenience is also is in his favour, else the same will result in multiplicity of proceedings, and if no interim orders as sought for, are granted, the avowed object of old sage maxim ”Justice should not only be done but manifestly and undoubtedly be seen to have been done” would get frustrated and the same would only add to 16 I.A.No.90 of 2022 IN O.S.No.435 of 2022 his misery and to the delight of Respondents/Defendants and would in fact perpetuate the illegalities being blissfully undertaken by the
Respondents /Defendants with impunity and prays this Court to grant temporary injunction in his favour.
3.The Respondent/Defendant No.1 has filed counter affidavit on his behalf and on behalf of respondents 2 to5 the averments of the counter affidavit are as follows: That the suit filed by the petitioner is frivolous, speculative and untenable suit seeking injunction, against the respondents and the relief so sought is not available to the petitioner, therefore the present application is liable to be dismissed.
3(a).That the respondent No.1 is not aware of the petitioner instituting any suit vide O.S.No.50 of 1997, before the Court of the Hon’ble X
additional Chief Judge (Fast Track Court), City Civil Court at Hyderabad
(Old O.S.No.602 of 1990 before the Court of the IV Additional Judge,
City Civil Court Hyderabad) for partition and separate possession against the Omkarmalji Tajpuriya and 6 others in respect of the alleged joint family properties, till the notices in I.A No. 1597 of 2015 in the I.A
No. 427 of 2005 were served. So also he had no knowledge about passing any interim orders in the application filed in I.A. No.1049 of 1990, seeking temporary injunction and passing of any interim orders on 15061990 in the said application. It is false and incorrect that the said orders dt.15061990, passed in the said I.A., are subsisting, existing and continued to be in force till date. The petitioner is submit that all interlocutory orders made in a suit, lapse when the suit is decided unless the suit itself is one for permanent injunction, but, as seen from the copy of the alleged preliminary decree, there is no injunction, as is alleged, was granted.
17 I.A.No.90 of 2022 IN O.S.No.435 of 2022 3(b). That the respondent No.1 is not aware that the Court of the
Hon’ble X Additional Chief Judge (Fast Track Court), City Civil Court, at
Hyderabad, has passed the alleged preliminary decree dt.14082002.
Since none of the legal heirs of his father are parties to the same.
Further the petitioner is not entitled to project the said alleged preliminary decree as a judgment, as no final decree is passed, therefore, the petitioner acquire no right as is alleged in the schedule properties mentioned in the said suit, including the petition schedule properties pursuant to said preliminary decree. The claim and contentions made in the suit and in the para under reply are against the settled principles with respect to decrees passed in suit for partition which specifically states that “no party in a suit for partition can acquire absolute title in relation to any property till a final decree is passed”.
That the said application cannot be maintained against the respondent
No.1 and other legal heirs of his father as they are not parties to the alleged preliminary decree. That the rights of the parties under the alleged preliminary decree are still to be adjudicated in the final decree proceedings and in a partition suit until final decree is passed. The properties which are to be divided metes and bounds can be varied and so also by way of amending the preliminary decree.
3(c).That it is false, baseless and frivolous that the respondents have dishonestly and fraudulently executed and registered the partition deed dt.10022021, bearing document No.436 of 2021 among themselves. It is not disputed that the respondent Nos.6 to 8, are the purchasers of the petition schedule properties, by virtue of registered sale deeds dt.1507 2021, bearing documents No.2101 of 2021 and 2102 of 2021 and the respondent No.9 herein is the Bank from whom respondent Nos.6 to 8 18 I.A.No.90 of 2022 IN O.S.No.435 of 2022 appears to have obtained loan by depositing their Title Deeds vide
Registered Memorandum of Deposit of Title Deeds dt.15072021 bearing Documents No.2103 of 2021 and 2104 of 2021 respectively.
However, that property purchased by the respondent Nos.6 to 8 was alleged to be referred at serial No.5 of the Schedule of property in the suit preliminary decree which was an exparte decree and the said property never formed the joint family property of Late Sri Omkarmalji
Tajpurya or any ancestral property, the said property inherited by these
Respondents, was a self acquired property of their father Late Sri
Hazarimal Gupta.
3(d). That it is false and incorrect to state that, the legal heirs of Late Sri
Hazarimal have surreptitiously invented and executed the said Partition
Deed dt.10022021, registered as document No.436 of 2021, with the office of the Defendant No.10 i.e., SubRegistrar Office, Charminar, in respect of the alleged double storied building bearing H. No.217374, admeasuring 366.77Sq. Yards or 306.34 Sq. Meters, situated at
Shakkar Khota, Hyderabad, Telangana, which is shown as Schedule “A” and “B” property in the petition schedule, is subject matter of the alleged preliminary decree dt.14082002 in O.S. No. 50 of 1997 (Old
O.S. No. 602 of 1990) passed by the Hon’ble X Additional Chief Judge
(Fast Track Court), City Civil Court at Hyderabad. It is equally false and incorrect that even though the alleged order dt.15061990, in I.A. No.
1049 of 1990, in O.S. No. 602 of 1990, passed by the Hon’ble IV
Additional Judge, City Civil Court, Hyderabad, is in subsistence and
existence and the final decree proceedings are pending adjudication in
I.A. No. 427 of 2005 and the specific, exclusive and definite shares are yet to be allotted and the final decree in the said suit yet to be passed, 19 I.A.No.90 of 2022 IN O.S.No.435 of 2022 these respondent Nos.1 to 5, have invented, created and executed the aforesaid registered partition deed, with an oblique motive allegedly to defraud and deprive the petitioner of his alleged legal and legitimate rights in respect of the said property. That the petitioner have no right or any share in the petition schedule properties nor entitled for any final decree allotting any share by meets and bounds. Further, it is denied that said registered partition deed, is not binding on the petitioner and the same is nonest and void in the eye of law, vitiated by doctrine of lis pendens and void abinitio and nullity and that petitioner need not seek the relief of declaration seeking nullity of the said document. That the petitioner by any stretch of imagination is entitled for any relief of declaration or otherwise. Respondent No.1 is advised to submit that these respondents have a legal valid title to convey the said property to the respondent Nos. 6 to 8 and there is no embargo for these respondents to convey title and the petitioner has no right to challenge the document executed by these respondents.
3(e).That it may be true that respondent Nos.7 and 8 might have caused a public notice in “Daily Hindi Milap” newspaper, Hyderabad,
Telangana, edition dt.04062021, through A.A. Abid, Engineer, calling for objections in the sale of H.No.217374, admeasuring 270.77 Sq.
Yards, situated at Shakkar Khota, Hyderabad, Telangana, from general public, within one week from the date of aforesaid publication. But it might to be true that adverting to the aforesaid public notice, the petitioner might have got issued legal notice dt.07062021 to A.A. Abid,
Engineer and to the respondent Nos.7 and 8, through registered post with. Acknowledgment due, lodging his objections. With regard to the averments that the said legal notice sent to A.A. Abid, Engineer, was 20 I.A.No.90 of 2022 IN O.S.No.435 of 2022 acknowledged by him vide postal acknowledgment dt.09062021 and the legal notice sent to respondent Nos. 7 and 8, was alleged to have got returned with an endorsement “unclaimed returned to sender”, these respondents are not aware of the same. Even otherwise, the petitioner is not entitled to tender any objections for the sale of the said property as the same was the selfacquired property of father of the respondent
Nos.1 to 5 Late Sri Hazarimal and after his demise, the respondent No.1 got the same by virtue of a partition deed dt.10022021.
3(f).That the respondents are not aware that in addition to alleged legal notice dt.07062021, tendering his alleged objections, the petitioner also personally served a letter dt.09062021, to the District
Registrar, Hyderabad District and also to respondent No.9 i.e., Sub
Registrar, Charminar, demanding not to register any nature of document in respect of house bearing No.217374, situated at Shakkar
Kotta, Hyderabad and also in respect of the other properties alleged under the preliminary decree dt.14082002 in O.S.No.50 of 1997 (Old
O.S.No.602 of 1990) and that the said letter was received and
acknowledged on the same day by Respondent/Defendant No.9. It is further submitted that the registering authority has no right to stop the registration of any document as there is no embargo to convey the title over any property in a partition suit till final decree proceedings are passed, even if it assumed to be a joint family property, the coowners are not barred from conveying their title.
3(g).That it is false and incorrect to allege that on 07012022 when the petitioner, visited the petition schedule properties he found demolition activities being undertaken at the aforesaid property and he 21 I.A.No.90 of 2022 IN O.S.No.435 of 2022 took photographs and on his enquiry came to know that some undisclosed third parties have purchased the aforesaid and that they maintained stoic silence even on questioning as to their identity which was said to be no avail to the Petitioner/Plaintiff. It is not out of the context to submit that no photographs said to have taken by the
Petitioner are filed along with the list of documents to substantiate the said allegations made in the para under reply. It is further denied that on the same day the petitioner said have compelled to visit the office of respondent No.9 i.e., SubRegistrar, Charminar, to ascertain the status in respect of aforesaid property as respondent No.9 was evading and avoiding to the enquiries of the petitioner and that as no action was forthcoming from respondent No.9, which compelled the petitioner to apply statement of encumbrance on the property dt.10012022 and to the dismay of the petitioner, he got shocked and surprised by noticing the details of the registered documents pertaining to said property. It is not out of the context to submit that almost all the properties alleged in the preliminary decree alleged to be disclosed in the alleged list of prohibited properties from registration, were conveyed by the respective owners/their legal heirs and new structures were brought to exist long back, but the petitioner did not objected the said transactions and thereby conceded the ownership of those persons including the ownership of the respondent No.1 over the petition schedule property.
3(h). That the present petition for injunction and the suit as filed, is frivolous and vexatious and the same is liable to be dismissed. It is denied that aforesaid registered Sale Deeds dt.15072021 bearing document No.2101 of 2021 and 2102 of 2021 runs contrary to the well settled principle of law enunciated under the latin maxim “nemo dat 22 I.A.No.90 of 2022 IN O.S.No.435 of 2022 quod non habet” meaning thereby, “No person can transfer a better title than what he himself has” and “A person cannot transfer a title, which he himself does not have”. It is pertaining to mention here that the
Respondent No.1, having acquired legal right over the petition schedule properties and being the absolute owner thereof, rightly conveyed the property of his late father, which was never available for partition and the said preliminary decree has not yet culminated into final decree, that apart none of the Respondents Nos. 1 to 5 are the parties to the alleged preliminary decree, therefore the same is not binding upon them.
3 (i). That the execution of documents are borne by records, but the allegations of fraud and doctrine of lispendens cannot be applied to the case of the Respondents and could not change the ground of the reality of that the Petition schedule properties are the selfacquired property of
Hazarimal and were never available for partition. That the Petitioner alleged to have submitted a complaint under the letter dt.11012022 to the Respondent No.11 and to the Deputy Commissioner GHMC, Circle 9, Hyderabad requested them not to grant any building permission in respect of the petition schedule ‘A’ & ‘B’ properties and the Respondent
No.11 and also the Deputy commissioner GHMC circle9, Hyderabad, only to harass and very the Respondent Nos.6 to 8 i.e., the bonafide purchasers, so also these Respondents.
3(j).That no order of the Court is violated by the any of the respondents and the property referred in the petition schedule is a self acquired property of the father of respondent No.1, purchased in the year 1976, by virtue of registered sale deed dt.03041976, bearing document No.319 of 1976 of BookI, Volume176, registered on pages 23 I.A.No.90 of 2022 IN O.S.No.435 of 2022 167 to 169, with the Sub Registrar, Doodhbowli, Hyderabad, Telangana,
It is further submitted that the petitioner do not have any locus standi to file and maintain the present petition as the relief as prayed in both main suit as well in the interlocutory applications are one and the same as such liable to be dismissed. The petitioner is not entitled to curtail the rights of enjoyment of property of the respondent Nos. 6 to 8 who have acquired the petition schedule properties under a rightful and valid title. It is submitted the Petitioner/Plaintiff is not entitled to the relief as claimed either to changing the nature of property or creating any third parties interest as prayed in the para, without having any absolute right till the passing of the final decree and these Respondents are contesting the final decree proceedings and reserve their rights to legal remedies available to them.
3(k). That the petitioner is not having any share or right in the petition schedule properties, but taking the advantage of innocence of respondent No.1’s father, appears to have filed a false and frivolous suit in O.S.No.50 of 1997 (Old O.S. No. 602 of 1990) on the file of the
Hon’ble X Additional Chief Judge (Fast Track Court), City Civil Courts at
Hyderabad, and by misleading the Hon’ble Court, appear to have obtained exparte preliminary decree and the legal heirs of the Late
Hazarimal Gupta are not parties to the same. However, as per the settled principles: “A preliminary decree declares the rights or shares of parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of divided property then such inquiry shall be held and pursuant to the result of 24 I.A.No.90 of 2022 IN O.S.No.435 of 2022 further inquiry a final decree shall be passed. A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination, which is, the final decree (CPC by
Mulla, Vol.1, 1995 Edn., P.21). The distinction between preliminary and final decree is this; a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree.” Hence prays to dismiss the petition.
4.The Respondent/Defendant No.7 has filed his counter, respondent
Nos.6 and 8 have adopted the counter of respondent No.7. The averments of the counter filed by the respondent No.7 are as follows:
That, a suit for bare injunction is not maintainable having regard to the facts and circumstances of the case as pleaded by the petitioner. The petitioner admittedly did not challenge the sale deeds in favour of these respondents. Unless the sale deeds are set aside, these respondents can not be refrained/restrained from enjoying the property in terms of the sale deed in favour of these respondents. The petitioner did not chose to implead all the alleged co. sharers in the suit and therefore the suit is not maintainable. Admittedly there is a preliminary decree obtained by playing fraud in the suit OS.No.50/1997 on the file of Hon’ble Court of X
Addl. Chief Judge (FTC), City Civil Court, Hyderabad for partition and 25 I.A.No.90 of 2022 IN O.S.No.435 of 2022 separate possession against Omkarmalji Tajpuriya and 6 others and it is further stated by the petitioner himself that a preliminary decree was passed in the said suit on 14082002 and thereafter the petitioner claims that he filed IA.No.427/2005 in OS.No.50/1997 Under Order XX
Rule 18 of CPC for passing final decree. The final decree is yet to be passed. A competent Civil Court of higher jurisdiction is seized of the proceedings and therefore the petitioner herein can not file a separate suit in respect of a subject matter of the suit O.S.No.50/1997 before
Junior Civil Judge Court. A final decree proceeding is the continuation of the suit and appropriate interlocutory orders can be sought in the very same proceeding till passing of final decree. The present petition and the suit are therefore not maintainable before this Court.
4(a).That it is understood that other co.sharers have sold away certain items of property covered by the paint schedule in OS.N.o.50/1997 by way of mutual understanding among themselves and it was also represented by our vendors that no person would have any objection for alienation of the plaint schedule property in view of the mutual understanding. it is precisely for this reason that except the petitioner who raised objection by way of an afterthought and did not file the suit immediately notwithstanding the alienation being to his knowledge on the very same date as also the proposed alienation prior to the registration of the alienation. Thus, the objections followed by the present suit are an afterthought to hoodwink these respondents, their vendors and is an attempt to make an illegal gain. Without prejudice to the above contentions, these respondents submit that the petitioner will not suffer irreparable loss and injury if the injunction is not granted in as much as out of 8 items set out in schedule of property to the plaint in 26 I.A.No.90 of 2022 IN O.S.No.435 of 2022
OS.No.50/1997, the present suit is in respect of item no.5, that too only
366.77 sq.yards. The petitioner, even as per the decree in
OS.No.50/1997, is entitled for only 1/8th share in the plaint schedule
properties out of which the petitioner herein is in exclusive possession and enjoyment of item no.7 of the plaint schedule property which is very valuable. Admittedly, the other defendants/co. sharers in
OS.No.50/1997 have no objection and are not questioning the sale
deeds in favour of these respondents.
4 (b). As per record, the plaint schedule property cannot be treated as joint family property or property belonging to HUF or ancestral property.
The petitioner herein could obtain a decree in O.S.No.602/1990 by suppressing true and correct facts and by playing fraud upon the
Hon’ble Court in O.S.No.50/1997. That, even as per annexureA
annexed to the plaint, the properties are mentioned as HUF properties and not a single document is exhibited to show that these are joint family properties or ancestral properties or HUF properties. As per the allegations in O.S.No.602/1990, the petitioner herein, in the suit, claimed himself as the 6th son of defendant No.1 and the defendant
Nos.2 to 7 therein as his brothers. It is further alleged that the properties were purchased jointly and that the business of the parties is also in joint family business. There is absolutely nothing to show that the properties are joint family properties while the averments/allegations in O.S.No.602/1990 mentions the properties are joint family properties and that the properties were acquired jointly, the schedule sets out the same as belonging to HUF. Not a single document was filed in the said suit and the petitioner herein made false statement by stating that the same are joint family properties. If only the petitioner 27 I.A.No.90 of 2022 IN O.S.No.435 of 2022 was to file the title deeds pertaining to the said properties, the Hon’ble
Court would not have passed a preliminary decree. It is further stated that as seen from the documents filed along with plaint, not a single document is filed to show the schedule of properties set out therein as joint family properties or the business being carried out as joint family.
4(c). That a double storied building bearing MCH.No.217374 constructed in land admeasuring 366.77sq. yards was purchased by
Sri Hazarimal Gupta from Umme Salma Khatoon and another through registered sale deed dt.03041976 bearing document No.319/1976. Sri
Hazarimal Gupta enjoyed this property as absolute owner and title holder. Subsequently, he died on 23102014 leaving behind his wife
Smt. Mayadevi, a son and four daughters. The son, daughters along with their mother executed a partition deed dt.10022021 bearing document No.436/2021 registered in the office of Sub. Registrar,
Charminar, a copy of the said deed is filed by petitioner along with the plaint. Under the said partition deed, the first party therein i.e., Dinesh
Kumar Gupta S/o Late.Hajarimal Gupta was allotted the double storied building along with the land and the other members were given certain funds. Subsequently, this property was offered for sale and these respondents bonafidely agreed to purchase the same, and a sale deed was executed by Dinesh Kumar Gupta in favour respondent No.6 herein dt.15072021 bearing document No.2199/2021 in respect of premises (part) bearing No.217374 together with land admeasuring 96sq.yards. Similarly, the respondent No.7 along with respondent No.8 purchased the remaining extent of premises No.217374 constructed in land admeasuring 270.77sq.yards under Registered Sale Deed dt.15 072021 bearing document No.2200/2021 executed by Dinesh Kumar 28 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Gupta, Thus, these respondents herein have become absolute owners, title holders and possessors and the possession also having been transferred to these respondents and mutation of said property also been effected in Municipal records. That the respondents No.7 and 8 wanted to develop the acquired property jointly. Subsequently, they got the building demolished, obtained municipal permission and loan from the respondent No.10 Bank by mortgaging the said property. That the petitioner did not object when they demolishing the building, and now the entire old building is demolished and they are in process of constructing new one. At this stage, the petitioner has filed the present suit/petition only to harass them and make unlawful gain.
4(d). That the petitioner is a coparcener, co. sharer, joint owner and joint possessor, is absolutely incorrect, false and unsustainable. In fact the various categories of owners as set out in paragraph No.3 stand on a different footing and therefore the petitioner himself is not aware and is not able to establish his status visàvis the suit schedule properties.
That the preliminary decree in O.S.No.50/1997 is vitiated by fraud, misrepresentation and collusion, and therefore the petitioner will not get any rights under the said decree. That the interim injunction was not extended and in any event gets terminated with by passing a preliminary decree in OS.No.50/1997. It is submitted that the demolitions were made by the respondents long back as soon as the property registered in their name and thereafter they have started construction activity recently. The petitioner herein very much aware of the purchase of property by the respondents as they themselves got a public notice in news paper on 04.06.2021.
29 I.A.No.90 of 2022 IN O.S.No.435 of 2022 4(e).That it is incorrect to allege that the registered partition deed and subsequent sale deeds are fraudulent, dishonest or nonest and void.
These allegations are totally incorrect. It can not be contended by the petitioner that our vendor did not have title and that he cannot transfer title which himself does not have. That the said principle has no application in as much as their vendor had right, title, interest and possession which was exclusive and to the exclusion of one and all including the petitioner allthrough. The petitioner played further fraud in O.S.No.50/1997 by contending it as a joint property and being in joint possession. He never in joint possession of the property and the properties stood in the name of father of respondent Nos.6 to 8 vendor as also the municipal taxes.
4(f).That no case is made out for dispensing with the notice on respondent Nos.9 and 11. Moreover, the concerned officers are not properly set out in the plaint and the petition. That it is the state of
Telangana through its appropriate officer and the GHMC through its appropriate officer who are required to be arrayed as parties. The sub registrar and GHMC through Town Planning Section are not proper parties to the suit/petition. Moreover, these two parties, even otherwise, are not concerned with the private lis between the parties. The petition is therefore is liable to be dismissed as against these parties without going into any merits of the case and their names are required to be struckoff in terms of provisions of Order I Rule 10 of CPC.
4(g).That the petitioner is required to challenge the deed of partition, and the sale deeds for obtaining any relief in this suit as against us. The suit is not properly valued. As seen from the sale deeds, the value of the 30 I.A.No.90 of 2022 IN O.S.No.435 of 2022 property is Rs.1,20,27,000/. However, the plaintiff has valued the suit, which are left blank. However, by the fact that the suit is instituted
before this Hon’ble Court of Junior Civil Judge (Rs.15,00,000/
pecuniary jurisdiction), the suit is not properly valued. Even for relief of injunction, there has to be a nexus to the value of the property which is the value of the relief even for valuing notionally. That the value of the property as per the valuation of the office of Sub Registrar. Thus, this
Court has no pecuniary jurisdiction to entertain the suit.
4(h). That the petitioner does not have prima facie case, the balance of convenience is not in his favour and moreover the respondent Nos.6 to 8 will suffer irreparable loss and injury if injunction is granted in favour of petitioner. That respondent Nos.6 to 8 are only developing the property and enhancing the value of the property, as such, in the event of the petitioner succeeding ultimately in the legal proceedings (which in their understanding is unlikely), he will be benefited rather than being put to loss.
4(i).That petitioner has not approached before this Court with clean hands, material suppression of facts and documents are there on his part, by filing the present suit he has multiplied the litigation and keeping the earlier suit deliberately pending since 32 years to harass and vex these respondents and other family members. Hence prays to dismiss the petition.
5.Heard on both sides. On behalf of petitioner. Exs.P1 to P20 were marked. Ex.P1 is the Certified Copy of order, in I.A.No.1049/1990 in
O.S.No.602/1990, dt.15061990, passed by the Court of the Hon’ble
IV Additional Judge, City Civil Court, Hyderabad. Ex.P2 is the Certified 31 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Copy of Judgment and Preliminary Decree, in O.S.No.50/1997, dt.14 082002, passed by the Court of the Hon’ble X Additional Chief Judge (Fast Tract Court), City Civil Courts, Hyderabad (Old O.S.No.602/1990
before the Hon’ble IV Additional Judge, City Civil Court, Hyderabad).
Ex.P3 is the Certified Copy of Registered Partition Deed, bearing document No.436/2021, dt.10022021. Ex.P4 is the Public Notice in “Daily Hindi Milap” Newspaper, Hyderabad, Telangana Edition, dt.04 062021 through A.A. Abid, Engineer. Ex.P5 is the Office copy of Legal
Notice, dt.07062021 issued on behalf of plaintiff to A.A. Abid,
Engineer. Ex.P6 is the Postal Receipts, dt.07062021. Ex.P7 is the
Postal Receipts, dt.07062021. Ex.P8 is the Postal Receipts, dt.0706 2021. Ex.P9 is the Postal Acknowledgment, dt.09062021. Ex.P10 is the Return Postal Covers. Ex.P11 is the Return Postal Covers. Ex.P12 is the Letter, dt.09062021 submitted by the Shiv Kumar Goel to
District Registrar, Hyderabad District and to SubRegistrar, Charminar.
Ex.P13 is the Statement of Encumbrance on Property, dt.10012022 issued by MeeSeva. Ex.P14 is the Certified Copy of Registered Sale
Deed, bearing document No.2101/2021, dt.15072021. Ex.P15 is the
Certified Copy of Registered Sale Deed, bearing document
No.2102/2021 dated.15072021. Ex.P16 is the Certified Copy of
Registered Memorandum of Deposit of Title Deed, bearing document
No.2103/2021 dated.15072021. Ex.P17 is the Certified Copy of
Registered Memorandum of Deposit of Title Deed, bearing document
No.2104/2021, dt.15072021. Ex.P18 is the Letter/Complaint, dt.11 012022, submitted by Shiv Kumar Goel to The Commissioner, GHMC,
Lower Tank Bund, Hyderabad. Ex.P19 is the Office Acknowledgment, dt.12012022 issued by The Commissioner, GHMC, to Shiv Kumar Goel 32 I.A.No.90 of 2022 IN O.S.No.435 of 2022 pertaining to Letter/Complaint, dt.11012022. Ex.P20 is the
Letter/Complaint dated.11012022, submitted by Shiv Kumar Goel to
The Deputy Commissioner, GHMC, Circle No.9, Hyderabad.
6.On behalf of respondent Nos.1 to 5. Exs.R1 to R5 are marked.
Ex.R1 is the Certified Copy of Sale Deed, vide document No.319/1976, dated.03041976. Ex.R2 is the Certified Copy of Sale Deed, vide document No.2253/2019 dated.19112019. Ex.R3 is the Certified
Copy of Memorandum of Deposit of Title Deeds, vide document
No.2254/2019 dated.19112019. Ex.R4 is the Certified Copy of Sale
Deed, vide document No.642/2019 dated.14032019. Ex.R5 is the
Certified Copy of Sale Deed, vide document No.869/2021 dated.1908 2019. No exhibits were marked on behalf of the respondents 6 to 8.
7.The learned counsel for the petitioner placed reliance on the following Judgments: (1) Surjit Singh and Others V/s Harbans Singh and Others reported in (1995) 6 Suprem Court Cases 50.(2) Jehal Tanti and Others V/s. Nageshwar Singh (dead) Through LRS. Reported in (2013) 14 Supreme Court cases 689.(3) N. Padmamma and others V/s.
S. Ramakrishna Reddy and Others reported in (2015) 1 Supreme Court cases 417.(4) T. Lakshmipathi and Others V/s. P. Nithyananda Reddy and Others reported in (2003) 5 Supreme Court Cases 150.(5) M/s.
Trinity Infra ventures Limited V/s. The State of Telangana reported in (2018) SCC online Hyd 360 (DB) (Para 33): (2018) 5 ALT 215 (DB):
(2018) 6 ALD 160 (DB).(6) Rukamani V/s. H.No. Thirumal Chettiar AIR 1985 Maas 283.(7) Naju Khan V/s. ImtiazUdDin (1896) ILR 18 ALL 115 (DB).(8) Mohd. Abdullah Khan V/s. Vasantha Green Projects 2021
SCC Online TS 565.
33 I.A.No.90 of 2022 IN O.S.No.435 of 2022
8. The Learned counsel for the R1 to R5 placed reliance on the following
Judgments: (1) S.P. Chengalvaraya Naidu (Dead) by L.Rs V/s.
Jagannath (Dead) by L.Rs. And Others reported in Civil Appeal No. 994 of 1972. The learned counsel for the R6 to R8 relied on the following
Judgments: (1) Mandali Ranganna and Others V/s. T. Ramachandra and Others reported in (2008) 11 Supreme Court Cases 1. (2) Hamza
Haji V/s. State of Kerala and another reported in (2006) 7 Supreme
Court Cases 416. (3) Thomson Press (India) Limited V/s. Nanak Builders and Investors Private Limited and Others reported in (2013) 5 Supreme
Court Cases 397. (4) Shub Karan Bubna Alias Shub Karan Prasad
Bubna V/s. Sita Saran Bubna and Others reported in (2009) 9 Supreme
Court Cases 689. (5) T.G. Ashok Kumar V/s. Govindammal and Another reported in (2010) 14 Supreme Court Cases 370.
9.Now the points for determination are:
1. Whether the petitioner/plaintiff is entitled for relief of
temporary injunction as prayed for in this petition and
whether he had established primafacie case and balance
of convenience and would suffer irreparable loss and
injury if the temporary injunction is declined?
2. To what relief?
10. P O I N T No.1: It is well settled principle of law that for obtaining a relief of injunction first and foremost the Petitioner has to establish his primafacie case, balance of convenience and also should convenience the Court that if the temporary injunction is not granted he will sustain irreparable loss. Along with the above principles the
Petitioner when seeking equitable relief should approach the Court with clean hands and then only he will be entitled to get the relief he is seeking for.
34 I.A.No.90 of 2022 IN O.S.No.435 of 2022
11.As this is a Petition filed by the Petitioner for grant of temporary injunction, the burden lies on the petitioner to prove before the Court that he has primafacie case in his favour as regards to passing of the preliminary decree in OS.No.50 of 19979 (old OS.No.602 of 1990) by the
Hon’ble X.Addl Chief Judge, City Civil Court, Hyderabad and the
injunction order passed in IA.No.1049 of 1990 and the subsistence of the injunction order in the said IA and also prove that during the subsistence of temporary injunction order the alleged execution of documents by the respondents 1 to 5 who are none other than legal heirs of the defendant No.5 in the suit No.50 of 1997 in respect of petition schedule property herein.
12. That the Exs.P1 to P2 filed by the petitioner are discloses that the petitioner herein who is plaintiff in the OS.No.50 of 1997(Old OS.No.602 of 1990) filed said suit for partition of the suit schedule properties therein and along with said suit the petitioner herein who is plaintiff in that suit had filed a petition under order XXXIX Rules.1&2 of CPC for injunction restraining the respondents therein from alienating the petition schedule properties therein and the Hon’ble IV. Addl Judge, City
Civil Court Hyderabad granted the Temporary injunction restraining the respondentstherein and their agents,servants,G.P.A;s,men, subordinates or any one claiming through or under them from transferring, or alienating by way of sale, gift, or otherwise any mode or creating any encumbrance in and over the propertied mentioned in the schedule until further orders and the petition schedule properties herein is one of the property in the said suit. That above suit was decreed on 14.08.2002. It is the contention of the petitioner that pursuant to the said preliminary decree under Ex.P2 he filed a petition under order XX 35 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Rule.18 of CPC for passing of final decree and the same is pending adjudication before Hon’ble X.Addl Chief Judge, City Civil Court
Hyderabad vide IA.No.427 of 2005. To support the said version the petitioner filed the copy of the said petition and even there is no dispute from the respondents in that aspect. The Ex.P3 MeeSeva copy of partition deed filed by the petitioner discloses that the respondents 1 to 5 partitioned the schedule property herein which is item No.5 of the preliminary decree passed by the Hon;ble V. Addl Judge, CCC
Hyderabad under Ex.P2. That the Ex.P4 discloses that the respondents 7 & 8 issued public notice in Daily Hindi Milap news paper Hyderabad edition on 04.06.2021 through A.A. Abid, Engineer, exhibiting that the ‘A’ schedule property herein is owned and possessed by the respondent
No.1 and the same is agreed to purchase by respondents 7&8 and accordingly called for objections and the Ex.P5 discloses that the petitioner herein through his counsel submitted his objections stating that final decree proceedings are pending in respect of the property vide
IA.No.427 of 2005 before the Hon’ble X. Addl Chief Judge, City Civil
Court Hyderabad and also sent a copy of the objections to the respondents 7&8 under Ex.P6 to P8 and the same was served to A.A.
Abid under Ex.P9 and the copies sent to respondents 7 &8 were returned under Exs.P10 and P11. That Ex.P12 discloses that the petitioner herein also issued notice to the District Registrar, Red Hills
Hyderabad and SubRegistrar Charminar requesting them not to register any nature of document in respect of ‘A’ schedule property herein. The Ex.P14 discloses that the respondent herein sold the ‘A’
Schedule property herein to the respondent No.6 and the Ex.P15 discloses that the respondent No.1herein sold the ‘B’ schedule property 36 I.A.No.90 of 2022 IN O.S.No.435 of 2022 herein to the respondents 7&8. That the ExP16 discloses that the respondent No.6 mortgaged the ‘Schedule property to the respondent
No.10 and the Ex.P17 discloses that the respondents 7&8 mortgaged the ‘B’ schedule property herein to the respondent No.10. .That the ExP13 discloses all the above transactions in respect of petition schedule properties. That the Exs.P18 to P20 discloses that the petitioner herein lodge complaint to the GHMC authorities praying them not to grant permission based on the created documents.
13.It is the main contention of the petitioner that the respondent
Nos.1 to 5 herein who are legal heirs of the Hazarimal partitioned the house No.217374 which is item No.5 of the ‘A’ schedule of preliminary decree under Ex.P2 and the father of the respondents 1 to 5 herein is one of the defendant in the said preliminary decree passed by the
Hon’ble X.Addl Chief Judge, City Civil Court, Hyderabad in OS.No.50 of
1997(old OS.No.602 of 1990 and it is further contention of the petitioner that during subsistence of injunction order vide IA.no.1049 of 1990 and final decree petition vide IA.no.427 of 2005, the respondents 1 to 5 being legal heirs alienated the item No.5 of schedule ‘A’ Properties to the respondents 6 to 8 under Exs.P14 and 15 and the alienation of the said property without deciding the shares with meets and bounds is nothing violation of injunction order. Admittedly the property house No.217 374 is item No.5 of the schedule ‘A’ property in preliminary decree passed in OS.No. 50 of 1997 (old No.602 of 1990) and the properties under Ex.P2 are not divided with meets and bounds, there is no dispute in that aspect from the respondents herein. The learned counsel for the petitioner argued that a preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the 37 I.A.No.90 of 2022 IN O.S.No.435 of 2022 properties included in the plaint schedule and liable to partition.
Further on the basis of mere declaration of the rights that take place under the preliminary decree, the parties can not trade in on specific items of properties and taking possession under execution of such decree under order XXI Rule.35 of CPC, no party to a suit for partition even by way of compromise can acquire any title to any particular property or any particular portion of property, by way of a compromise.
To support said argument he placed reliance of the judgment of Hon;ble
High court of Telangana in the decision of M/s. Trinity Infrastructures
Limited Vs. The State of Telangana reported in 2018 SCC Online Hyd
360. The relevant paragraph of the judgment is 33, the same is extracted here under:
33. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in on specific items of properties or specific portions of suit schedule properties. Since there are three stages in a partition suit namely (i) passing of a preliminary decree in terms of Order XX Rule 18, (ii) appointment of a
Commissioner and passing of a final decree in terms of
Order XXVI Rule 14 (3) and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any particular property or any particular portion of a property, by way of a compromise.
38 I.A.No.90 of 2022 IN O.S.No.435 of 2022
14. That the Hon;ble High court in the above said judgment clearly stated that on the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in on specific items of properties or specific portions of suit schedule properties, so in view of the above judgment, the defendant No.5 in the partition suit No.50 of 1997 (old suit No.602 of 1990) does not acquired title over the item No.5 of the ‘A’ schedule properties in preliminary decree under Ex.P2. Since the defendant No.5 does not acquire the title over the item No.5, the respondents 1 to 5 who are being legal heirs of the Hazarimal who is defendant No.5 in the partition suit are not entitled for partition of item No.5 of the A schedule property among them, so the execution of Ex.P3 among the respondents 1to5 herein in respect of said property is void.
15. The further contention of the petitioner that based on Exs.P 14 and 15 sale deeds executed by the respondent No.1, the respondents 6 to 8 are demolished the house and trying to construct the building in the property and if the respondents succeeded in their attempts irreparable injury would be caused to the petitioner, as such the respondents 6 to 8 are not allowed to construct the building in the petition schedule property. Admittedly in the partition suit the shares of the parties to the suit are not demarcated and the final decree petition vide I.A. No.427 of 2005 is pending for adjudication, as such the parties to the partition suit are not permitted either on the entirety or on a part of the property.
To support said argument the learned counsel for the petitioner place reliance of the judgment of Hon’ble Madras High Court in Rukmani Vs.
H.N.Thirumal Chettiar reported in AIR 1985 Madras 283 and the judgment of Hon’ble High court of Allahabad in Naju Khan Vs. Imtiaz 39 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Uddin (1896) ILR 18 ALL 1159(DB) The para No.2 of the judgment of
Hon’ble Madras High Court in Rukmani Vs. H.N.Thirumal Chettiar
reported in AIR 1985 Madras 283 is extracted here under:
2 The, question is whether a cosharer having 2/3rd share in the suit property could be allowed to put up constructions in the suit property even with such a condition as has been imposed by the learned Judge. If the respondent claims to have acquired full title to the suit property and if such a title comes to be questioned by other parties it may be that the court can primafacie proceed on the basis of his full title and permit him to put up constructions, at his own risk and cost without any claim for compensation. But where the respondent has not claimed full title to the suit property, the court cannot permit him to put up constructions on the suit property much to the prejudice of other cosharers. If the respondent has acquired title to the property only partly, he cannot be taken to be the full owner and he cannot exercise rights of exclusive ownership to the detriment of other co sharers. Unless he has his share demarcated in a suit for partition or by any other arrangement he cannot put up constructions either on the entirety or on a portion of the property. On the finding given by the learned single Judge that the respondent has purchased 2/3rd share in the suit property we think that it is not possible to sustain the order permitting the petitioner to put up constructions on the suit property at his risk. The respondent, being a cosharer, cannot be allowed to cause prejudice to the other cosharers by putting up a substantial construction during the pendency of a suit for partition filed by the cosharers. In this view, we are not in a position to uphold the order under appeal on merits.
16. That the para No.2 of judgment of Hon’ble High court of Allahabad in Naju Khan Vs. ImtiazUddin (1896) ILR 18 ALL 1159(DB) is extracted hereunder:
40 I.A.No.90 of 2022 IN O.S.No.435 of 2022
The law provides a legitimate means by which any cosharer may obtain partition. The law does not favor one cosharer adversely to the other cosharers making a partition in his own favor, and selecting the portion of the land he likes by erecting a building upon it.
17. That in the case in hand the respondents 6 to 8 based on the Ex.P14 and P15 trying to construct building in the petition schedule property which is subject property of the preliminary decree and there is no division of shares of the ‘A’ schedule properties under Ex.P2 among the parties of the partition suit, therefore the respondents 1 to 5 have no right to sale the petition schedule property to the respondents 6 to 8 unless the shares of the properties demarcated among the parties to the partition suit, so the above judgments relied upon by the learned counsel for the petitioner is applicable to the case in hand.
18. That the Hon’ble High court of Telangana in Mohd. Abdullah Khan
Vs. Vasantha Green Projects and Ors reported in 2021SCC Online TS 565 at para Nos. 10,17 and 18 held as follows:
10. It is well settled law that the Courts may grant relief of temporary injunctions in interlocutory applications, restraining the respondents, if the respondent commit or likely to commit any unlawful acts such as causing damage to the subject property, change of physical features, alienation of the same, to deprive the right to the property of the petitioners, or otherwise causing injury.
17. That apart, it is needless to state that all the shareholders of the property held in joint, are entitled to each part and parcel of the property, till a division by metes and bounds is affected. No sharer or joint holder is entitled to exclusive ownership or possession of the property to the exclusion of 41 I.A.No.90 of 2022 IN O.S.No.435 of 2022 other cosharers in the property, till the division is made by metes and bounds. When the grantor itself cannot claim exclusive right, successors cannot claim exclusive rights and the successors cannot have more rights than the grantor. It is well settled law that when cosharers and coowners do not have exclusive right to any part or portion of the joint family property, each of them have right, title and interest on each part and parcel of joint family property, till it is divided by metes and bounds. (see T. Lakshmipathi v. P. Nithyananda
Reddy (2003) 5 SCC 150.
18. It is also well settled law that a preliminary decree in a suit for partition merely declares the shares that the parties are entitled to in any of the properties included in the plaint schedule property and liable to partition. On the basis of mere declaration of rights that take place in preliminary decree, the parties cannot trade in on specific items of properties or specific portions of suit schedule properties. There are three stages in partition suit namely (i) passing of preliminary decree in terms of Order XX Rule 18, (ii) appointment of a
Commissioner and passing of final decree in terms of Order
XXVI Rule 14(3) and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire any title to any particular property or any particular portion of a property by way of a compromise. (see M/s. Trinity Infraventures
Limited vs. State of Telangana (2018) 6 ALD 160. When such is the legal position, how the 1st respondent can claim exclusive right and possession over the suit schedule property and that is not explained by the 1st respondent or the 2nd respondent. On the other hand, petitioner/plaintiff is claiming his right in partition under preliminary decree passed in a partition suit and wants to protect and preserve the property, pending adjudication of final decree proceedings and though the respondents have raised plea regarding maintainability of 42 I.A.No.90 of 2022 IN O.S.No.435 of 2022 suit, the appellate court expressed doubt about the same, but no provision of law is brought to the notice of this Court stating that the present suit is not maintainable.
19. That in view of the above decisions, if the respondents 6 to 8 are allowed to construct building in the petition schedule property during pendency of the final decree proceedings vide IA.No.427 of 2005 and in case if the petition schedule property fallen to the share of others in the final decree proceedings it will not be possible to execute the final decree and which may leads to multiplicity of proceedings.
20. The Hon’ble Supreme court in Jehal Tanti Vs. Nageswar Singh reported in (2013) 14 SCC 689 (para 11) held that:
11. The same issue was considered in Vidur Impex and
Traders (P) Ltd. and others v. Tosh Apartments (P) Ltd. and others (2012) 8 SCC 384, and it was held : “At the cost of repetition, we consider it necessary to mention that
Respondent 1 had filed suit for specific performance of agreement dated 13.9.1988 executed by Respondent 2. The appellants and Bhagwati Developers are total strangers to that agreement. They came into the picture only when
Respondent 2 entered into a clandestine transaction with the appellants for sale of the suit property and executed the agreements for sale, which were followed by registered sale deeds and the appellants executed agreement for sale in favour of Bhagwati Developers. These transactions were in clear violation of the order of injunction passed by the
Delhi High Court which had restrained Respondent 2 from alienating the suit property or creating thirdparty interest.
To put it differently, the agreements for sale and the sale deeds executed by Respondent 2 in favour of the appellants did not have any legal sanctity.” 43 I.A.No.90 of 2022 IN O.S.No.435 of 2022
21. That in the case in hand as per the Ex.P1 the Hon’ble X.Addl Chief
Judge, City Civil Court, Hyderabad granted temporary injunction order
vide IA.No.1049 of 1990 in OS.No.50 of 1997(old OS.No.602 of 1990) restraining the respondents therein from alienating the properties therein till disposal of suit and later the preliminary decree was passed and the final decree proceedings vide IA.No.427 of 2005 are pending for adjudication, in this circumstances and in view of the above decision, the alienation of the one of the properties in the said partition suit by respondents 1 to 5 herein who are legal heirs of the Hazarimal who is defendant No.5 in the partition suit under Exs.P14 & P15 is void and those documents did not have any legal sanctity.
22. It is the contention of the respondent No.1 that he is not aware of suit vide O.S.No.50 of 1997 till the notices in I.A No. 1597 of 2015 in the
I.A No. 427 of 2005 were served and he also had no knowledge about passing any interim orders in the application filed in I.A. No.1049 of 1990, seeking temporary injunction and passing of any interim orders on 15061990 in the said application. Since the father of respondents 1 to 5 herein is one of the parties to the said partition suit, in that circumstances the above contention of the respondent No.1 is not believable. The other contention of the respondent No.1 that when suit is decreed all interlocutory orders made in a suit, lapse when the suit is decided unless the suit itself is one for permanent injunction, but in the said partition suit the final decree proceedings are pending vide
IA.No.427 of 2005 and the shares are not decided by meets and bounds,
unless the final decree proceedings are completed and shares are decided by meets and bounds under order XXI Rule.35 of CPC, in my considered opinion the injunction orders passed in the said partition 44 I.A.No.90 of 2022 IN O.S.No.435 of 2022 suit remains in force, therefore the above contention of the respondents 1 to 5 is not sustainable.
23. The further contention of the respondent No.1 is that he is not aware that the Court of the Hon’ble X Additional Chief Judge (Fast Track
Court), City Civil Court, at Hyderabad, has passed the alleged preliminary decree dt.14082002 and since none of the legal heirs of his father are parties to the same. It is further contention of the respondents that application cannot be maintained against the respondent No.1 and other legal heirs of his father as they are not parties to the alleged preliminary decree and the rights of the parties under the alleged preliminary decree are still to be adjudicated in the final decree proceedings and in a partition suit until final decree is passed. The properties which are to be divided meets and bounds can be varied and so also by way of amending the preliminary decree.
Admittedly the respondent No.1 to 5 are not parties to the partition suit,even though they are being the legal heir of the Hazarimal who is defendant No.5 in the said partition suit is bound by the injunction order passed under Ex.P1 and in view of the orders under ExP1 the parties to the said suit are any of them claiming through them are not entitled to deal with the properties shown in the injunction order as well as preliminary decree under Ex.P2, as such the contention of the respondent No.1 that the properties which are to be divided metes and bounds can be varied and so also by way of amending the preliminary decree is not sustainable.
24.That the respondent No.1 admitted about the execution of registered partition deed dt.10022021 bearing document No.436 of 45 I.A.No.90 of 2022 IN O.S.No.435 of 2022 2021 among themselves under Ex.P3 and also admitted the Exs. P14 to
P17, but his contention is that property purchased by the respondent
Nos.6 to 8 was alleged to be referred at serial No.5 of the Schedule of property in the suit preliminary decree which was an exparte decree and the said property never formed the joint family property of Late Sri
Omkarmalji Tajpurya or any ancestral property, the said property inherited by them was a self acquired property of their father Late Sri
Hazarimal Gupta. To support the said contention the respondent No.1 relied on the Ex.R1. That as seen from Ex.R1 the father of the respondent No.1 had purchased the item No.5 of the property shown in ‘A’ schedule in the partition suit in his name. However once the court decided that the said property is joint family property of the parties to the said partition suit by passing the preliminary decree under Ex.P2 and when the father of the respondent No.1 not challenged the said judgment, it is binding on him, therefore the contention of the respondent No.1 that the Item No.5 of the property in schedule ‘A’ of the partition suit is self acquired property is not sustainable.
25. It is further contention of the respondent No.1 that the respondents have a legal valid title to convey the said property to the respondent Nos.
6 to 8 and there is no embargo for them to convey title and the petitioner has no right to challenge the document executed by them.
Since the property sold by the respondents 1 to 5 is not allotted to their father by meets and bounds and the said property is one of the properties in the partition suit and the final decree proceedings are pending vide IA.No.427 of 2005, in that circumstances the question of convey title to the respondents 1 to 5 does not arise and the said alienation of properties by them under Exs.P14 & P15 is nothing but 46 I.A.No.90 of 2022 IN O.S.No.435 of 2022 violation of injunction order, therefore above contention of the respondents is not sustainable.
26.It is the contention of the respondents 6 to 8 that a suit for bare injunction is not maintainable unless the sale deeds are set aside and the respondents can not be refrained/restrained from enjoying the property in terms of the sale deed. Admittedly the the sale deeds executed by the respondents 1 to 5 in favour of the respondents 6 to 8 is not challenged by the petitioner herein, but an injunction order was granted restraining the respondents in the partition suit as referred above and final decree proceedings vide IA.No.427 of 2005 are pending, the alienation of the one of the suit schedule properties in the said partition suit by the respondents 1 to 5 herein being legal heirs of
Hazarimal who is respondent No.5 in the said injunction application vide IA.No.1049 of 1990 without deciding the shares by meets and bounds is nothing but violation of the orders of the court and the petitioner herein can challenge the Exs.P14 and 15 in a separate suit.
Further the question of maintainability of the present injunction suit is a question of law and fact and it can not be decided in the present interlocutory application.
27. The respondents 6 to 8 admitted about the passing of preliminary decree in the partition suit by the Hon’ble X.Addl Chief Judge City Civil
Court, Hyderabad and they contended that when a competent Civil
Court of higher jurisdiction is seized of the proceedings, therefore the petitioner can not file a separate suit in respect of a subject matter of the suit OS.No.50 of 1997 before the Junior Civil Judge court and a final decree proceeding is the continuation of the suit and appropriate 47 I.A.No.90 of 2022 IN O.S.No.435 of 2022 interlocutory orders can be sought in the very same proceeding till passing of final decree, therefore the petition is not maintainable before this court. Once the respondents 6 to 8 admitted about the passing of the preliminary decree and the property purchased by them under
Exs.P14 & 15 is one of the property in the preliminary decree and the respondents 1 to 5 herein who are not parties to the said partition suit, the petitioner cannot seek the relief of injunction in the final decree proceedings unless the respondents 1 to 5 are brought on record as legal heirs of Hazarimal, therefore the above contention of the respondents is not sustainable. It is further contention of the respondents 6 to 8 that the plaint schedule property can not be treated as joint family property or property belonging to HUF or ancestral property and the petitioner herein obtained the decree in OS.No.602 of 1990 by playing fraud upon the court and there is no single document filed by the petitioner to show that the properties under partition suit are the joint family property. Once the partition suit filed by the petitioner herein who is plaintiff in OS.No.50 of 1997 is decreed against the defendants therein and the father of the respondents 1 to 5 herein is one of the defendants in that suit and the decree passed in the said partition suit is subsistence, in that circumstances the petitioner herein need not prove in this suit by filing the documents that the suit schedule properties in the said partition suit are joint family properties, so the above contention of the respondents 6 to 8 is not sustainable. To support said version the the learned counsel for the respondents 6 to 8 placed reliance on judgment rendered by the Hon’ble Apex court in
Hamza Haji Vs. State of Kerala and others reported in (2006) SCC 416, the relevant portion of the said judgment is extracted hereunder.
48 I.A.No.90 of 2022 IN O.S.No.435 of 2022
It is not necessary to multiply authorities on this question since the matter has come up for consideration before this
Court on earlier occasions. In S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors. [(1993)
Supp. 3 SCR 422], this Court stated that, "it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 20 . The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence. Their
Lordships stated, "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused.
Property grabbers, tax evaders, Bank loan dodgers, and other unscrupulous persons from all walks of life find the courtprocess a convenient lever to retain the illegalgains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation".
28. That as per the facts of the above case law one of the party obtained the decree by playing fraud upon the court, as such the the
Hon’ble Apex court held that it is the settled proposition of law that a
judgment or decree obtained by playing fraud on the court is a nullity 49 I.A.No.90 of 2022 IN O.S.No.435 of 2022 and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. But in the case in hand it is only allegation of the respondents 6 to 8 that by playing fraud upon the court the petitioner herein obtained the Preliminary decree in OS.No. 50 of 1997, but there is no material evidence bought on record by the respondents to substantiate said version and even the said judgment and decree is not challenged by any of the parties to the said judgment, as such the judgment referred above by the learned counsel for the respondents is not helpful to them.
29. It is further contention of the respondents 6 to 8 that a double storied binding bearing MCH.No.217374 constructed in land ad measuring 366.77sq. yards was purchased by Hazarimal Gupta from
Umme Salma Khatoon and another through registered sale deed dt.03 041976 bearing document No.319/1976. Hazarimal Gupta enjoyed this property as absolute owner and title holder. Subsequently, he died on 23102014 leaving behind his wife Smt. Mayadevi, a son and four daughters. The son, daughters along with their mother executed a partition deed dt.10022021 bearing document No.436/2021 registered in the office of Sub. Registrar, Charminar. Under the said partition deed, the first party therein i.e., Dinesh Kumar Gupta S/o Late.Hajarimal
Gupta was allotted the double storied building along with the land and the other members were given certain funds. Subsequently, this property was offered for sale and these respondents bonafidely agreed to purchase the same, and a sale deed was executed by Dinesh Kumar
Gupta in favour respondent No.6 herein dt.15072021 bearing 50 I.A.No.90 of 2022 IN O.S.No.435 of 2022 document No.2199/2021 in respect of premises (part) bearing No.217 374 together with land admeasuring 96sq.yards. Similarly, the respondent No.7 along with respondent No.8 purchased the remaining extent of premises No.217374 constructed in land admeasuring 270.77sq.yards under Registered Sale Deed dt.15072021 bearing document No.2200/2021 executed by Dinesh Kumar Gupta, Thus, these respondents herein have become absolute owners, title holders and possessors and the possession also having been transferred to these respondents and mutation of said property also been effected in
Municipal records. That the respondents No.7 and 8 wanted to develop the acquired property jointly. Subsequently, they got the building demolished, obtained municipal permission and loan from the respondent No.10 Bank by mortgaging the said property. That the petitioner did not object when they demolishing the building, and now the entire old building is demolished and they are in process of constructing new one. At this stage, the petitioner has filed the present suit/petition only to harass them and make unlawful gain. The Ex.R1 filed by the respondents 1 to 5 discloses that the father of the respondents 1 to 5 has purchased the petition schedule property from one Salma Khatoon, however once the Court passed preliminary decree under Ex.P2 stating that all the properties shown in the partition suit are joint family properties and when the father of the respondents 1 to 5 who is defendant No.5 in that partition suit was not contested the said partition suit taking a plea that the item No.5 of the schedule ‘A’ property in that suit is his self acquired property, in view of the judgment and decree passed under Ex.P2 it can not be said that the ‘item No.5 of ‘A’ schedule property is self acquired property of Hazarimal 51 I.A.No.90 of 2022 IN O.S.No.435 of 2022 does not arise. If the above contention of the respondents is true said
Hazarimal might have challenged the said preliminary decree, but he failed to do so, therefore all the above contentions raised by the respondents 6 to 8 are not sustainable.
30. It is further contention of the respondents 6 to 8 that the petitioner did not object when they demolishing the building, and now the entire old building is demolished and they are in process of constructing new one. The learned counsel for the respondents 6 to 8 argued that when the petitioner had kept quit for a long time and allowed the respondents to deal with the property exclusively, ordinarily would not be entitled to an order of injunction. The learned counsel for the respondents 6 to 8 place reliance of decision rendered by the Hon’ble Supreme court in
Mandalai Ranganna and others Vs. T. Ramachandra and others reported in (2008) 11 SCC 1 the relevant portion of the said decision is extracted hereunder:
21. While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
22. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the 52 I.A.No.90 of 2022 IN O.S.No.435 of 2022 courts is imperative. Contentions raised by the parties must be determined objectively.
31. That in the case in hand it is the specific contention of the petitioner that he came to know about the demolishion and execution of Exs.P3,14,15 on 07.01.2022 and immediately he obtained the certified copies of those documents and filed the present suit on 02.02.2022 as as such the argument of the learned counsel for the respondents 6 to 8 that the petitioner had kept quit for a long time and allowed the respondents to deal with the property exclusively, ordinarily would not be entitled to an order of injunction is not sustainable and the facts of the decision relied upon by the counsel are different from the facts of this case, therefore the said decision is not helpful to him.
32. That in the fourth judgment referred above the Hon’ble Apex Court explained the difference of final decree petition in mortgage suit and partition suit and facts in the said judgment are different from the facts in the case on hand, therefore the said judgment is also not helpful to the respondents.
33. The learned counsel for the respondents 6 to 8 argued that the
Sec.52 of TP Act is not applicable when the coshares sold the part of property in a partition suit and to support his argument he place reliance of judgment of Hon’ble Apex Court rendered in T.G.Ashok
Kumar Vs. Govindammal and another reported in (2010) SCC 370. The relevant portion of the said judgment is extracted hereunder:
12. In Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject 53 I.A.No.90 of 2022 IN O.S.No.435 of 2022 them to the authority of the court which is dealing with the property to which claims are put forward. This court in Hardev
Singh v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.
13. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected.
34. That as seen from the above judgment one of the cosharer sold the part of the property during pendency of the suit, but in the case in hand the respondents who are the legal heirs of the Zararimal who is defendant No.5 in the partition suit sold the item No.5 of ‘A’ schedule property in preliminary decree in OS.No.50 of 1997 and during pendency of the final decree petition vide IA.no.427 of 2005, that the shares of the properties under preliminary decree not divided by meets and bound, therefore the facts of the judgment relied upon by the counsel for the respondents 6 to 8 are different from the facts of the case in hand, therefor this court feels that the said judgment is also not helpful to the respondents.
35. That after gone through the entire record and documents placed by the both the parties, it is evident that the respondents 1 to 5 who are 54 I.A.No.90 of 2022 IN O.S.No.435 of 2022 the legal heirs of the Hazarimal who is defendant No.5 in the partition suit No.50 of 1997 executed the Ex.P3 partition deed among them even though the properties under Ex.P2 are not divided by meets and bounds and during the subsistence of final decree proceedings vide IA.no.427 of 2005 and though there is a temporary injunction orders under Ex.P1 restraining the father of the respondents and other defendants in the partition suit and also evident that the respondents based on the Ex.P3 sold the petition schedule properties to the respondents 6 to 8 under
Exs.P14 and P15 and the respondents in turn availed the loan from the respondent No.10 by mortgaging the petition schedule property which is one of the properties in the partition suit. Since, a final decree petition is pending for adjudication vide IA,no,427 of 2005 and the shares of the parties in the preliminary decree not divided by meets and bounds and in view of the taken into the consideration of the judgments referred above by the learned counsel for the petitioners, this court is of the considered opinion that the respondents have no right to alienate the petition schedule property, unless the properties under preliminary decree are divided by meets and bounds and delivery of the same to the parties concern under order XXI Rule.35 of CPC. However, to appreciate all these facts asserted by the both the parties a full fledge trial has to be conducted but at this stage there is no hesitation to hold that the petitioner has proved his prima facie case and the balance of convenience lies in his favour and that if temporary injunction is not granted pending suit, the respondents may alienate the petition scheduel property and if they are permitted to deal with said property which is subject matter of the preliminary decree under Ex.P2 it may leads to mutplicity of proceedings and if the respondents are succeeded 55 I.A.No.90 of 2022 IN O.S.No.435 of 2022 in their attempts irreparable loss injury would be caused to the petitioner which can not be compensated in any manner and the purpose of filing the present suit will be defeated. The comments made in respect of any document and on any aspect is restricted to this I.A.
only and the suit will be disposed of independently without getting influenced by the comments made in this I.A. The point is answered accordingly.
36. IN THE RESULT, the petition is allowed thereby temporary injunction is granted in favour of the petitioner restraining the respondents, their agents, representatives, attorneys, assigns, etc., or whomsoever claiming through them, from alienating, encumbering, transferring, creating third party rights, interest, charge, lease, mortgage, gift, etc., or dealing in whatsoever manner, in respect of petition schedule properties pending disposal of the main suit, in the circumstances there is no order as to costs,
Typed to dictation by stenographer and after correction, pronounced by me in the open Court on this the 4 th Day of March, 2022. Sd/
VII JUNIOR CIVIL JUDGE,
FAC VI JUNIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER: FOR RESPONDENTS:
None None
EXHIBITS MARKED
FOR PETITIONER:
Ex.P1: Certified Copy of order, in I.A.No.1049/1990 in OS.No.602/1990 dated. 15061990, passed by the Court of the Hon’ble IV. Additional
Judge, City Civil Court, Hyderabad.
Ex.P2: Certified Copy of Judgment and Preliminary Decree, in
OS.No.50/1997 dated.14082002, passed by the Court of the Hon’ble
X. Additional Chief Judge (Fast Tract Court), City Civil Courts, 56 I.A.No.90 of 2022 IN O.S.No.435 of 2022
Hyderabad (Old OS.No.602/1990 before the Hon’ble IV. Additional
Judge, City Civil Court, Hyderabad).
Ex.P3: Certified Copy of Registered Partition Deed, bearing document No.436/2021 dated.10022021.
Ex.P4: Public Notice in “Daily Hindi Milap” Newspaper, Hyderabad, Telangana Edition, dt.04062021 through A.A. Abid, Engineer.
Ex.P5: Office copy of Legal Notice dated.07062021 issued on behalf of plaintiff to A.A. Abid, Engineer.
Ex.P6: Postal Receipts dated.07062021.
Ex.P7: Postal Receipts dated.07062021.
Ex.P8: Postal Receipts dated.07062021.
Ex.P9: Postal Acknowledgment dated.09062021.
Ex.P10: Return Postal Covers.
Ex.P11: Return Postal Covers.
Ex.P12: Letter dated.09062021 submitted by the Shiv Kumar Goel to District Registrar, Hyderabad District and to SubRegistrar, Charminar.
Ex.P13: Statement of Encumbrance on Property dated. 10012022 issued by MeeSeva.
Ex.P14: Certified Copy of Registered Sale Deed, bearing document No.2101/2021 dated.15072021.
Ex.P15: Certified Copy of Registered Sale Deed, bearing document No.2102/2021 dated.15072021.
Ex.P16: Certified Copy of Registered Memorandum of Deposit of Title Deed, bearing document No.2103/2021 dated.15072021.
Ex.P17: Certified Copy of Registered Memorandum of Deposit of Title Deed, bearing document No.2104/2021 dated.15072021.
Ex.P18: Letter/Complaint dated.11012022, submitted by Shiv Kumar Goel to The Commissioner, GHMC, Lower Tank Bund, Hyderabad.
Ex.P19: Eoffice Acknowledgment dated 12012022 issued by The Commissioner, GHMC, to Shiv Kumar Goel pertaining to Letter/Complaint dated.11012022.
Ex.P20: Letter/Complaint dated.11012022, submitted by Shiv Kumar Goel to The Deputy Commissioner, GHMC, Circle No.9, Hyderabad.
57 I.A.No.90 of 2022 IN O.S.No.435 of 2022
FOR RESPONDENTS:
Ex.R1:Certified Copy of Sale Deed, vide document No.319/1976, dt.03 041976.
Ex.R2:Certified Copy of Sale Deed, vide document No.2253/2019, dt.19 112019.
Ex.R3:Certified Copy of Memorandum of Deposit of Title Deeds, vide document No.2254/2019, dt.19112019.
Ex.R4:Certified Copy of Sale Deed, vide document No.642/2019, dt.14 032019.
Ex.R5:Certified Copy of Sale Deed, vide document No.869/2021, dt.19 082019.
Sd/
VII JUNIOR CIVIL JUDGE
FAC VI JUNIOR CIVIL JUDGE
CITY CIVIL COURT, HYDERABAD.