IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.140 of 2011 Dated:28-09-2011 Between: Karumuri Ratnakumari and others. ….Appellants. And Kollipara Veera Hanumantha Rao and another. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.140 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Orders passed in I.A.No.2054 of 2010 in O.S.No.77 of 2010 by the Judge, Family Court-cum-Additional District Judge, East Godavari at Rajahmundry on 22.12.2010. The appellants herein are the respondents in the above said petition and the 1st respondent herein has filed the above said petition under Order 40 Rule 1 and Section 151 CPC seeking for a direction to the respondents to deposit Rs.5,000/- per month into Court failing which a receiver may be appointed to take possession of the plaint schedule property and administer the same pending disposal of the suit. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. The petitioner has averred in his affidavit that the respondent Nos.2 to 4 are in illegal possession of the plaint schedule property and are indulging in acts of waste knowing fully well that he has every chance of success in the suit. The plaint schedule property is capable of fetching not less than Rs.5,000/- per month towards rent and the respondent Nos.2 to 4 without paying a single pie are squatting in the plaint schedule property causing loss to him. Since it may take considerable time for disposal of the suit, the respondents are making unjust enrichment. Hence, they may be directed to deposit Rs.5,000/- per month into Court towards unauthorized use and occupation of the premises. The 1st Respondent remained exparte. Respondent Nos.2 to 4 have filed counter claiming possession over the plaint schedule property in their own right and denied the contention of petitioner about their unauthorized occupation and possession. According to them, one Karumuri Veera Nageswara Rao is the husband of 2nd respondent and father of respondent Nos.3 and 4. He got the plaint schedule property and some other properties through his adoptive father Ramachandrarao. The petitioner being the natural brother of Karumuri Veera Nageswara Rao, was residing with him and used to manage the properties of Karumuri Veera Nageswara Rao. As the said Karumuri Veera Nageswara Rao is innocent and his mind was not property matured, the petitioner took up the management of the properties till his death in the year 2007. After the death of Karumuri Veera Nageswara Rao, who is the husband of 2nd respondent and father of respondent Nos.3 and 4, they came to know about the gift deed in favour of plaintiff dated 19.03.1984 by Karumuri Veera Nageswara Rao. According to them, the petitioner might have obtained such gift deed taking advantage of innocence of Karumuri Veera Nageswara Rao. According to them, in their own right as legal heirs of Karumuri Veera Nageswara Rao, they have been residing in the plaint ‘A’ schedule property and they never unauthorisedly occupied the plaint schedule property at the instance of 1st respondent. As such they need not deposit any amount as claimed by the petitioners. During the course of enquiry Exs.P.1 to P.39 were marked on behalf of the petitioner. No documents were marked on behalf of respondent Nos.2 to 4. Taking into consideration of the said pleadings and documentary evidence, the lower Court directed the respondent Nos.2 to 4 to deposit Rs.3,500/- every month in the first week towards their enjoyment of the plaint A schedule property till the disposal of the suit. The first of such payment begins from the first week of January 2011. If the respondent Nos.2 to 4 failed to deposit such amount, the petitioner can move the court for appropriate relief. Aggrieved by the same, the present appeal is filed by the respondent Nos.2 to 4 therein. The appellants’ counsel has pleaded that the appellants are in possession of plaint ‘A’ schedule property as of their own right as it belongs to Karumuri Veera Nageswara Rao, who is the husband of respondent No.2 and father of respondent Nos.3 and 4, and the petitioner taking advantage of the innocence of the said Karumuri Veera Nageswara Rao might have obtained a gift deed dated 19.03.1984 in his name and the same is not binding on them. He further pleaded that pending disposal of suit, they cannot be directed to pay any amount for use and occupation of the premises. The 1st respondent’s counsel has pleaded that the 1st respondent has become the owner of the plaint schedule under gift deed dated 19.03.1984 and he was put in possession of the property by Karumuri Veera Nageswara Rao. He entered into agreement of sale with 1st respondent, who is the son-in-law of 2nd respondent and agreed to take a flat in the constructed building. As the said 1st respondent failed to comply with the said agreement, he has filed a suit for specific performance of agreement of sale dated 08.04.2006. Subsequently the suit was decreed for refund of advance amount with interest. He has filed an appeal and the same is pending before the I Additional District Judge, Rajahmundry. During the pendency of the said suit, the respondent Nos.2 to 4 were inducted by 1st respondent into the plaint schedule property, as such they were in unauthorized occupation of the said premises. Therefore, the lower Court has rightly directed them to deposit Rs.3,500/- per month into Court pending disposal of suit. The 1st respondent/ petitioner has filed a suit against the present appellants for grant of a decree in his favour for the following reliefs: (a) direct the defendants to deliver vacant possession of the plaint ‘A’ schedule property to the plaintiff; (b) grant permanent injunction restraining the defendants, their men, agents and successors in interest from interfering with the letting out of ran water and waste water by the plaintiff through the plaint ‘B’ schedule property; (c) grant permanent injunction restraining the defendants, their men, agents and successors in interest with plaintiff’s joint right to use the joint municipal tap situated in plaint-B schedule property; (d) grant damages at Rs.5,000/- per month from the date of the suit till the date of handing over vacant possession of the plaint ‘A’ schedule property to the plaintiff. In the said suit the 1st respondent/plaintiff has pleaded that he is absolute owner of the plaint ‘A’ schedule property, which he got under a registered gift deed dated 19.03.1984 from Karumuri Veera Nageswara Rao, who is his elder brother and he accepted the gift, which was made in the presence of 2nd respondent and one Butchi Rama Sastry. Thereafter, he constructed a terraced house bearing D.No.6-2-7/1 and has been paying taxes ever since till date. The 1st respondent herein has entered into agreement of sale with the 2nd respondent herein, who is the son-in-law of the 1st appellant, and agreed to take a flat in the construction being made by the 2nd respondent in the adjoining property belonging to the appellants and also to pay certain amounts. As the 2nd respondent completely gave a go-bye to the said agreement and sold away the flat to 3rd party, he has field a suit O.S.No.558 of 2006 for specific performance of agreement of sale dated 08.04.2006 against the 2nd respondent herein and the said suit was finally decreed granting relief of refund of advance amount. Thereafter, he has filed an appeal and the same is pending before the I Additional District Judge, Rajahmundry. According to him, during the pendency of the said suit, the 2nd respondent in order to harass and blackmail the 1st respondent, inducted the appellants herein into the plaint ‘A’ schedule property. Therefore, the 1st respondent is claiming the plaint schedule property under the gift deed said to have been executed by Karumuri Veera Nageswara Rao, who is the husband of 1st appellant and father of appellant Nos.2 and 3. Admittedly, the appellants are in possession of the plaint ‘A’ schedule property. The appellants are disputing about the execution of gift deed in favour of 1st respondent by the Karumuri Veera Nageswara Rao and claiming that they are in possession of plaint schedule property as of their own right and not as unauthorized occupants. As stated above, the suit was filed by the 1st respondent/plaintiff for recovery of vacant possession of plaint ‘A’ schedule property and also for damages at Rs.5,000/- per month from the date of suit till the date of handing over vacant possession of the plaint ‘A’ schedule property. Therefore, the claim for damages would be granted as mesne profits for use and occupation of plaint schedule property in case the suit for recovery of possession is decreed in favour of 1st respondent. The contention of 1st respondent is that the appellants herein are in unauthorized occupation of plaint ‘A’ schedule property and the appellants herein denied the same and the same has to be decided after due trial in the suit. Since the 1st respondent is seeking for recovery of possession and mesne profits by way of damages, the same cannot be granted pending disposal of suit. Therefore, the lower Court has erred in directing the appellants herein to deposit Rs.3,500/- every month till the disposal of the suit. In the result, the appeal is allowed with costs. Consequently, the Order passed in I.A.No.2054 of 2010 in O.S.No.77 of 2010 by the Judge, Family Court-cum-Additional District Judge, East Godavari at Rajahmundry on 22.12.2010 is hereby set aside. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:28-09 -2011 Ksp