THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 1141 of 2009. JUDGEMENT: (Per BNRN,J) This Civil Miscellaneous Appeal is directed against the order and decree dt. 14.9.2009 in I.A.No. 1105 of 2009 in O.S.No. 103 of 2009 on the file of the learned V Additional District Judge, Nellore. By the order impugned, the learned V Additional District Judge granted interim injunction restraining the respondent No.1/defendant No.1 from making further construction or activity in the property in question. The appellant herein is the 1st defendant in the suit. The respondents 1 to 4 have filed the suit O.S.No. 103 of 2009 against the appellant herein and three others seeking for declaration of title over the suit schedule property and for permanent injunction by declaring the transactions in respect of the suit schedule property between the defendant Nos.1 to 4 as invalid. The respondents/plaintiffs also filed I.A.No. 1105 of 2009 along with the suit seeking interim injunction restraining the appellant/defendant No.1 from making further construction or activity in the property, pending disposal of the suit. The learned V Addl. District Judge, Nellore allowed the above I.A. and consequently granted interim injunction as prayed. Aggrieved by the same, the present appeal is filed. For the purpose of disposal of this appeal, it is necessary to refer to the averments made in the affidavit filed in support of the petition in I.A.No. 1105 of 2009 in O.S.No. 103 of 2009. The 4th respondent/4th defendant in the suit is the owner of an extent of 266.22 ankanams purchased in the year 1999 and he got constructed apartments in the said area after obtaining necessary lay out from the Nellore Municipality and sold them to different persons, who formed into an Association called ‘Vaibhav Enclave Apartment Owners Welfare Association’ represented by its President V.Venkatarami Reddy (1st plaintiff in the suit). At the time of construction of apartments, an extent of 19.80 ankanams was set apart for the purpose of parking and a compound wall was also constructed around the said extent of land. According to the plaintiff, the said extent of 19.80 ankanams is also part and parcel of total extent of 266.22 ankanams and that they are having right, title and interest over the said extent of land and that this piece of land is situated on the eastern side of the apartments and six gates are provided on eastern side for ingress and egress to the flat owners and if this site is blocked, the right of ingress and egress to the flat owners will be curtailed and that through this piece of land in question, the flat owners have access to the main road. The 4th defendant, who is the original owner of the entire extent of land before construction of apartments settled the said extent of 19.80 ankanams in favour of Sri.Radhakrishana Reddy under a registered settlement deed dt. 14.11.1987 and that the said settlement is not valid and binding on the respondents/plaintiffs as the same is part and parcel of Apartment enclave. The said Radhakrishna Reddy sold an extent of 11.11 ankanams out of 19.80 ankanams to Smt.N.Sujana (2nd defendant) under a registered sale deed dt. 4.10.2000 and that when the said Sujana tried to occupy the suit schedule property, the Association of the Apartments Committee filed a suit O.S.No. 1187 of 2001 on the file of I Additional Jr. Civil Judge, Nellore and obtained permanent injunction restraining the said Sujana and her husband and one Venugopal Reddy. Later, the said Sujana sold the land covered by registered sale deed dt. 4.10.2000 to the appellant/1st defendant and delivered possession. The contention of the respondents/plaintiffs is that since Sujana against whom they obtained permanent injunction cannot convey any title to the petitioner herein and the possession of the appellant over the land in question amount to trespass. When the appellant started construction in the land in question, the respondents/plaintiffs approached the Municipal authorities and submitted a representation dt. 17.8.2009 against the illegal construction being made by the petitioner but they did not take any action against him. While so, the appellant/1st defendant filed O.S.No. 678 of 2009 on the file of the I Addl. Jr. Civil Judge, Nellore along with I.A.No. 798 of 2009 against the respondents/plaintiffs herein and obtained interim injunction suppressing the decree in O.S.No. 1187 of 2001. The appellant/1st defendant filed counter denying all the allegations except admitting the settlement transaction. The grievance of the respondents/plaintiffs is that the appellant/1st defendant after obtaining interim injunction against them in O.S.No. 678 of 2009 made construction in the property in question without obtaining any permission from the Municipal Authorities and that even after the ex parte interim injunction was vacated on 13.8.2009 by the I Addl. Jr. Civil Judge, Nellore, still the petitioner/defendant No.1 is proceeding with construction. On behalf of the respondents/plaintiffs Ex:A.1 to A.15 are marked and Ex:B.1 is marked on behalf of the respondent/1st defendant, before the court below. The learned V Addl. District Judge, Nellore after appreciating the evidence on record held that the respondents/plaintiffs have prima facie case, balance of convenience and irreparable loss and consequently granted interim injunction by the impugned order. We have heard the learned Counsel for both the parties. It is contended by the learned Counsel for the appellant/1st defendant that the court below erroneously held that the respondents/plaintiffs have prima facie case, balance convenience and irreparable loss in their favour without properly appreciating the actual facts. Further, the Court below failed to see that the appellant is the true owner of the suit schedule property and the vendor of the respondents/plaintiffs had parted his right, title and possession of the suit schedule property in favour of the predecessor in title of the appellant as early as in 1997 i.e. much prior to the purchase of the flats and proposed undivided share of land by the respondents 2 to 4 and members of respondent No.1 Association. It is further contended that the court below ought not to have placed much reliance on the decree in O.S.No. 1187 of 2001 for injunction simplicitor, as the respondents themselves have sought for recovery of possession of suit schedule property from the appellant under Section 5 of Specific Relief Act and for maintaining such a suit, the respondents have to establish better title than the appellant and for granting interim order in favour of the respondents. It is further contended by the learned Counsel for the appellant that as per G.O.Ms.No. 423 dt. 31.7.1998 for raising structures in a plot of below 100 sq. mtrs which is part of an approved lay out or sub-division, no prior permission is required and admittedly the property purchased by the appellant is only 74.314 sq. mtrs which is less than 100 sq. mtrs and is part of an approved lay out and as such no prior sanction for making construction is necessary. On the other hand, the learned Counsel for the respondents supported the impugned order. There is no dispute with regard to the fact that the 4th defendant is the owner of the entire extent of 266.22 ankanams. The 4th defendant submitted lay out plan for approval for construction in the entire extent of 266.22 ankanams. Ex:A.2 is the approved lay out plan and Ex:A.3 is the proceedings of approval issued by the Municipality, Nellore on 14.5.1997. Mere approval of lay out and issuance of permission for construction does not confer any title on the owners of the apartments. The learned District Judge placed reliance on the Decree dt. 24.9.2002 in O.S.No. 1187 of 2001 filed by the respondents/plaintiffs against Sujana and obtained permanent injunction. The learned District Judge held that since the appellant purchased the plot in question from the said Sujana and since the respondents/plaintiffs obtained permanent injunction against the said Sujana, the decree operates against the appellant also since he stepped into the shoes of the said Sujana. Admittedly, the appellant/1st defendant or any other defendant is a party to the suit in O.S.No.1187 of 2001 and therefore the decree in the above suit does not operate against the appellant herein since the Judgment and decree in the above suit is a judgment in per sona. Further, the respondents/plaintiffs failed to produce any documentary evidence to show that the suit schedule property is part and parcel of the Apartment enclave, except Exs:A.2 and A.3 which are approved plan and permission for construction of apartments, which admittedly do not convey any title to the respondents/plaintiffs. The respondents/plaintiffs also failed to produce the registered sale deeds executed by the 4th defendant in their favour in respect of sale of flats showing that the suit schedule property is part and parcel of their apartment enclave. There is no dispute with regard to the fact that the 4th defendant is the absolute owner and possessor of the entire extent of 266.22 anakanams, which includes the suit schedule property. Since the respondents/plaintiffs failed to prove that the suit schedule property was meant for parking and it is part and parcel of the apartment enclave, it goes without saying that the suit schedule property belongs to the 4th defendant and he has every right to dispose of the same as he likes. Further, the learned District Judge failed to see that the plaintiffs filed the suit for declaration of title and permanent injunction. The very filing of the suit itself for the above reliefs goes to show that the respondents/plaintiffs are not in possession of the suit schedule property, which is an essential ingredient for granting injunction. The learned District Judge ignoring the reliefs for which the suit was filed, erroneously granted interim injunction, without there being any prima facie case, balance of convenience and irreparable loss. For the foregoing reasons, we hold that the learned V Additional District, Nellore gravely erred in granting interim injunction against the appellant/1st defendant, which is liable to be set aside. Accordingly, the appeal is allowed and consequently the order and decree dt. 14.9.2009 in I.A.No. 1105 of 2009 in O.S.No. 103 of 2009 on the file of the V Additional District, Nellore is set aside. There shall be no order as to costs. ______________________ V.V.S.RAO,J ________________________ B.N.RAO. NALLA,J 29.12.2009. Krb. THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No. 1141 of 2009. Dated: 29.12.2009.