THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 950 of 2009 Date: 17.09.2009 Between: Smt. S. Rani and others. .. Appellants And Smt. Yadamma and others. .. Respondents THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 950 of 2009 Judgment: (per Hon’ble Sri Justice A. Gopal Reddy) This appeal by the defendants in the suit is filed against the order of injunction dated 11.08.2009 granted by the II Additional Chief Judge, City Civil Court, Hyderabad, in I.A. No.1198 of 2009 in O.S. No.323 of 2009. The respondents/plaintiffs filed the above suit for declaration and for recovery of possession of the plaint schedule property admeasuring 464 sq. yards, situated in Ward No.13, Block 6, Survey No.280 of Gudimalkapur village, Karvan Mandal, pleading that the respondents/plaintiffs are the sons and daughters of M. Lakshma Reddy and the appellants/defendants are the daughters of G. Anji Reddy and Parvathamma. The plaintiffs father was the absolute owner and possessor of Ac.5-30 gts., of land in Survey Nos.276 to 279, situated at Gudimalkapur village, and in the year 1964 he sold Ac.2-35 gts., of land out of the said land to Anji Reddy under a registered sale deed dated 31.12.1964 and in the year 1971 the Government of Andhra Pradesh acquired Ac.2-09 gts., of land out of Ac.5-30 gts., for the purpose of defence department, for which both their father and Anji Reddy were paid compensation. The said Lakshma Reddy along with plaintiffs 2 and 3 owned Ac.2-20 gts., of land in Survey Nos.292 and 293 of Gudimalkapur village, whereas one G. Haranatha Rao was the owner of Ac.1-38 gts., of land in Survey No.280 of Gudimalkapur village, which is adjacent to the land owned by Lakshma Reddy in Survey Nos.278 and 279. In view of the same, Lakshma Reddy and plaintiffs 2 and 3 exchanged their land admeasuring Ac.2-20 gts., in Survey Nos.292 and 293, for Ac.1-38 gts., of land in Survey No.280 of G. Haranatha Rao under a registered exchange deed dated 10.04.1969 and after such exchange Lakshma Reddy and plaintiffs 2 and 3 got their names mutated in the revenue records insofar as the land admeasuring Ac.1-38 gts., situated in Survey No.280 of Gudimalkapur village is concerned, and out of that, they sold Ac.1-00 in Survey No.280 to Sri Lakshminagar Colony Welfare Society and in the remaining extent of 0-38 guntas of land the plaintiffs and their family members constructed their own house and living therein. The plaint schedule property admeasuring 484 sq. yards, which was left over as open land, was in their joint possession. Late Anji Reddy never owned any land in Survey No.280 of Gudimalkapur village and for the first time in the sale deed vide document No.4131 of 2004 the premises bearing No.13-6-437/2 is allegedly shown to be situated in Survey No.280 of Gudimalkapur village and thereafter his wife G. Parvathamma allegedly gifted 848 sq. yards of land under three registered gift settlement deeds in favour of her three daughters who are the defendants. But, neither G. Anji Reddy nor his legal heirs ever purchased any property or land in Survey No.280 of Gudimalkapur village. Therefore, they filed the above suit for declaration and for recovery of possession of the suit schedule property and filed I.A. No. 1198 of 2009 with the same averments for grant of temporary injunction restraining the appellants herein, who are shown as respondents/defendants in the above I.A., from raising any construction of whatsoever in the suit schedule property. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed in the lower Court. The respondents filed a counter denying the exchange of property between the petitioners family and G. Harnatha Rao, selling Ac.1-00 of land in Survey No.280, their constructing house in the remaining extent of Ac.0-38 gts., and leaving the suit schedule property admeasuring 484 sq. yards as open land. It is stated that respondents 1 to 3 were gifted a total extent of 848 sq. yards under three registered gift settlement deeds and denied that either their father Anji Reddy or his legal heirs ever purchased any property in Survey No.280 and G. Parvathamma has no right to gift the property in favour of the respondents. It is pleaded that the family of the respondents have been in possession of the suit schedule property bearing Municipal No.13-6-437/2/E since late 1960’s. The family of the petitioners/plaintiffs has occupied the land abutting the main road, leading to Jham Singh Temple and G. Anji Reddy got the lands on the back side. Subsequently, Anji Reddy constructed the house bearing premises No.13-6-437/2 and later the said house was sub-divided and House Nos.13-6-437/2/E; 13-6-437/E/1; 13-6-437/E/2; and 13-6- 437/2/D were allotted. There is no passage for entry and exit for Anji Reddy’s portion of land, therefore, there arose disputes between the petitioners and Anji Reddy and consequently the petitioners filed a suit being O.S. No.3877 of 1983 on the file of the III Assistant Judge, City Civil Court, Hyderabad, alleging that the respondents family have encroached certain portion and prayed for removal of the structures, in which a compromise was arrived at between the parties, which was reduced into writing on 30.10.1989, and the same was recorded in the above suit and a compromise decree was passed on 21.11.1989. According to the compromise decree passed on 21.11.1989 in O.S. No.3877 of 1983 the parties were agreed that the land to the west of 30 feet wide road, connecting Jham Singh Temple with Lakshmi Nagar, belongs to G. Anji Reddy and others and the land on the eastern side belongs to the petitioners. Later, the petitioners filed another suit in O.S. No. 5414 of 1994 on the file of the X Assistant Judge, City Civil Court, Hyderabad, alleging that the parents of the respondents are trying to raise a compound wall around the area of 750 sq. yards in Survey No.280, and the said suit was dismissed as ‘not pressed’ by the petitioners on 17.08.1999 and later the present suit is filed and the petitioners are not entitled to any injunction. In order to substantiate the respective pleas, Exs.P1 to P23 were marked on behalf of the petitioners and Exs.R1 to R36 were marked on behalf of the respondents. The lower Court, by the impugned order, allowed the I.A., holding that Exs.R-27 and R-28, the certified copy of decree in O.S. No.3877 of 1983 and memorandum of compromise filed by both the parties in the said suit, which are the crucial documents, disclose that in the apportionment of the land, Lakshma Reddy i.e., the father of the petitioners got land abutting the main road leading to Jham Singh Temple and father of the respondents G. Anji Reddy got land on the back side. As there was no passage for Anji Reddy’s portion of land, it was agreed by the father of the petitioners to leave 30 feet road from his own patta land in Survey No.280 passing from the main Jham Singh Temple road and leading to the house of G. Anji Reddy. The terms of the said compromise further disclose that as G. Anji Reddy got land on the back side, M. Lakshma Reddy agreed to part with approximately Ac.0-04 guntas of land from his survey No.280 abutting the Jham Singh Road in favour of G. Anji Reddy, and after the death of M. Lakshma Reddy, his sons and daughters executed a written agreement of sale in favour of Andalamma, the wife of Anji Reddy in the year 1980. The above compromise recorded by the III Assistant Judge, City Civil Court, Hyderabad, clearly shows that M. Lakshma Reddy only agreed to leave 30 feet road from his patta land in Survey No.280 and the compromise does not disclose that G. Anji Reddy has got any property in Survey No.280, and it further discloses that the house of Anji Reddy is situated on the back side of the property of M. Lakshma Reddy and therefore the said M. Lakshma Reddy has got right over the property in Survey No.280 except Ac.0-04 guntas of land and the petitioners have succeeded the said property and have got prima facie title over the petition schedule property and accordingly granted interim injunction against the respondents. We have heard Sri D. Prakash Reddy, learned Senior Counsel for the appellants/respondents and Sri S. Niranjan Reddy, learned counsel for the respondents/petitioners. The entire crux of the issue revolves around the compromise entered between the parties under Ex.R-28. A reading of the said compromise deed discloses that after spot inspection and having set aside the lands sold by each of the parties, the remaining extent of land is shown in the plan annexed as belonged to party Nos.1 and 2 in detail with boundaries marked. The land to the west of 30 feet road connecting Jham Singh Temple road with Laxmi Nagar belongs to Anji Reddy and others, and the land on the east side of this road belongs to party No.1 more fully described and delineated in the plan annexed (Lakshma Reddy). Both the parties have now agreed to possess and enjoy the lands as earmarked to them in the plan attached and none of the two parties would interfere in the lands of the other now or in future. The plan enclosed along with the compromise memo also discloses the 30 feet road and to the west of it the house of Anji Reddy was shown and to the north-east of it 484 sq. yards was shown in triangular piece, on which the father of the petitioners relinquished his interest in favour of the father of the respondents. The above recitals in the compromise deed discloses that Anji Reddy can enjoy the land to the west of 30 feet road i.e., an extent of 484 sq. yards and both the parties agreed to possess and enjoy the lands as earmarked to them in the plan attached. Therefore, prima facie, the respondents are in possession of the said property and their possession was recognized under the compromise. Admittedly, the respondents, who have dismantled the house, proceeded with the construction in the land, which belong to Anji Reddy under the compromise. The balance of convenience also does not lie in favour of the petitioners to restrain the respondents from proceeding with the construction. We, accordingly, set aside the injunction order dated 11.08.209 passed by the lower Court in I.A. No.1198 of 2009 in O.S. No. 323 of 2009. However, the respondents shall give an undertaking, within a period of two weeks from the date of receipt of a copy of this order, to the effect that in the event of petitioners succeeding in the suit, they will not claim any equities and also do not alienate the suit schedule property or create any third party rights over the same during the pendency of the main suit. The C.M.A is accordingly allowed. No costs. ___________________ A. GOPAL REDDY, J. ______________________ B. CHANDRA KUMAR, J. Date: 17.09.2009 Nsr