IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD SATURDAY, THE THIRTIETH DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL MISCELLANEOUS APPEAL No. 354 OF 2011 BETWEEN: Venu Gopal Karva …APPELLANT AND Salvaji Kista Rao @ Kistaiah and others …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CIVIL MISCELLANEOUS APPEAL No. 354 OF 2011 JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) The Civil Miscellaneous Appeal is filed against the orders in I.A.No.147 of 2011 and I.A.No.163 of 2011 in O.S.No.22 of 2011 on the file of V Additional District Judge at Karimnagar. 2. The suit was one filed for specific performance of the contract of sale dated 21.05.2010 and for declaration of the sale deeds dated 15.02.2011 in favour of the defendant No.3 as null and void and not binding on the plaintiff. 3. The allegations in the plaint are that the 1st and 2nd defendants are the owners of land to an extent of Ac.1.38 Gts., in Sy.No.190/C situated at Oddyaram village and also Ac.0.20 Gts., in Sy.No.189/B. They agreed to sell the property for a consideration of Rs.45,00,000/- and on 21.05.2010 they received a sum of Rs.10,00,000/- from the plaintiff as earnest money and executed the agreement of sale. The extent of Ac.0.20 Gts., of land in Sy.No.189/B was purchased by defendants 1 and 2. Defendants 1 and 2 agreed that they will get the registered sale deed executed by Salvaji Narsinga Rao with regard to Ac.0.20 Gts., of land. The defendants 1 and 2 specifically agreed that the sale deed will be executed by Salvaji Narsinga Rao from whom they got right by exchange. The plaintiff is always ready and willing to perform the part of the contract. The defendants 1 and 2 have been in possession of the property. The plaintiff further averred in para No.5 of the plaint as under: “Subsequently, the plaintiff came to know that the defendants 1 and 2 have executed two registered sale deeds in favour of the 3rd defendant on 15.02.2011 in respect of land measuring Ac.1.00 Gt., in SY.No.190/C vide registered document NO.436 of 2011 and Ac.0.26 Gts., in Sy.No. 189/B vide registered document NO.435 of 2011. The plaintiff immediately obtained the certified copy of sale deeds and requested the defendants 1 and 2 to cancel the sale deeds, but they refused to do so on 08.03.2011. The defendants 1 and 2, who have agreed to sell the suit land as per the agreement of sale dated 21.05.2010 are not competent to execute registered sale deeds on 15.02.2011 in favour of the 3rd defendant. The 3rd defendant has noticed of agreement of sale dated 21.05.2010 colluded with the 1st and 2nd defendants and obtained two registered sale deeds dated 15.02.2011 in respect of suit land. The defendants 1 and 2 are bound to execute registered sale deed in terms of agreement of sale dated 21.05.2010 and the 3rd defendant is also bound to execute registered sale deed along with defendants 1 and 2 in terms of agreement of sale dated 21.05.2010. Hence the suit. 4. Pending disposal of the suit I.A.No.147 of 2011 was filed for temporary injunction restraining the 3rd defendant from altering the nature of the suit land till the disposal of the suit. An order was granted on 22.03.2011 restraining the 3rd respondent from altering the nature of the suit land in any manner. Thereafter, the 3rd respondent filed I.A.No.163 of 2011 seeking for setting aside the ex parte order and also the counter in I.A.No.147 of 2011. The contention of the 3rd respondent is that the agreement of sale pleaded by the plaintiff is not true. The 3rd respondent has purchased the property for valuable consideration. The 3rd respondent is the lease holder of the land in Sy.NO.192 to an extent of 3 Hectors for the last twenty years after obtaining a licence from the Mines Department. The 3rd respondent with an intention for extension of his quarry and to lay roads purchased the surrounding lands and accordingly, purchased the land in Sy.No.189/B to an extent of Ac.0.26 Gts., of land in Sy.No.190/C to an extent of Ac.1.00 Gt., for valuable consideration from respondents 1 and 2 apart from some other properties. The 3rd respondent was doing the business by employing several persons. The petitioner is also carrying business in granite opposite to the quarry of the 3rd respondent and developed ill-will and in collusion with the respondents 1 and 2 fabricated the agreement of sale, which is not valid. The 3rd respondent is a bona fide purchaser for valuable consideration, after the purchase the 3rd respondent has laid roads and also damaged the road with unsocial elements and caused loss of Rs.5,00,000/- and the matter was reported to the police. Therefore, the 3rd respondent pleaded for vacating the injunction and also dismissal of the I.A.No.147 of 2001. Both the applications were heard together by the learned Judge and an order was passed permitting the 3rd respondent to lay the road and not to dig any pits and accordingly with the above directions I.A.No.147 of 2011 was dismissed and I.A.No.163 of 2011 is allowed. Aggrieved by the said order, the present appeal is filed. 5. The point that arises for consideration is whether the order of the lower Court is legal and sustainable? 6. POINT: Evidently, the suit is one for specific performance of the contract of sale for a sum of Rs.45,00,000/-, whereas the 3rd respondent claims that he has purchased the property under a registered sale deeds. It is to be mentioned that under the agreement of the sale, the possession was not delivered to the plaintiff and as can be seen from the allegations in para No.4 of the plaint, the possession was with the 1st and 2nd defendants. Therefore, in order to entitle for an injunction, there shall be a prima facie case and the balance of convenience. The relief of specific performance is an equitable relief. Unless and until the claim of the petitioner herein is established no rights are derived. Further-more, it is to be mentioned that so far as the Ac.0.20 Gts., of land is concerned, the allegations in the plaint goes to show that as per the agreement Salvaji Narsinga Rao has to execute the sale deed. But, the said Narsinga Rao was not a party to the suit through whom title is to be conveyed. Evidently, the lands are not agricultural lands. According to the case of the 3rd respondent, the property was purchased for the purpose of road to the quarries, which he has already taken on lease. The lower Court found that the 3rd respondent, who is in possession of the property, has got right and enjoyment. He was permitted to lay the road, the question as to whether who has damaged the road is not relevant at this stage. The lower Court also found that the petitioner has misused the order of injunction and changed the road. Apart from it, the essential conditions of entitlement of injunction are not established. The prima facie case in this case cannot be said to be established as the 3rd respondent is a purchaser under registered sale deed and at this stage, there is nothing to show that with the knowledge of the agreement of sale in favour of the plaintiff, the sale was effected. Furthermore, the petitioner has no possession of the property. By using the land as a road in the quarry area, will not cause any damage or loss or alteration of the property. In such circumstances, there will not be any claim of balance of convenience or damage to the petitioner. 7. Therefore, for the above reasons, we find that the petitioner is not entitled for injunction as prayed for and the order passed by the learned Judge does not call for any interference. Accordingly, points are answered. 8. In the result, appeal is dismissed. No costs. _______________ N.V. RAMANA, J ________________________ N.R.L.NAGESWARA RAO, J Date: 30-04-2011. INL