THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL Nos.1166 and 1167 of 2009 Dated:31.12.2009 Between: D.V.Siddhartha, S/o.D.Vijay Kumar, aged 27 years, Occ:Student, r/o.Flat No.402, Indra Residency, Lane No.2, Ashoknagar, Hyderabad, And others. …Appellants and Maganti Indumati, W/o.M.Vijranath, aged 39 years, Occ:House wife, R/o.3-6-188/A, Himayathnagar, Hyderabad, And others. …Respondents. THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL Nos.1166 and 1167 of 2009 COMMON JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellants in both the appeals are plaintiffs and the respondents in both the appeals are defendants in O.S.No.205 of 2009. These appeals by plaintiffs are against the common order dated 01.08.2009 passed by the Court of the II Additional Chief Judge, City Civil Court, Hyderabad, in I.A.Nos.710 and 711 of 2009. The first of these applications was filed for ad interim injunction restraining the defendants from changing the nature of plaint schedule property and the other application was filed seeking ad interim injunction restraining the defendants from alienating the plaint schedule property. By impugned order, the learned trial Court dismissed both the applications. For the sake of convenience the parties hereafter are referred to by their status in the lower Court. The case of the plaintiffs is as follows. Plaint schedule land was allotted by Sri Venkateshwara Co-operative Housing Building Society (hereafter referred to as, the Society) to Sri P.Sreenivasulu Naidu, husband of third defendant. After his death, the Society transferred the plot in the name of third defendant and executed sale deed on 17.08.1993. She executed a registered General Power of Attorney (GPA) on 28.08.1991 in favour of defendant No.4, who sold an extent of 800 square yards to plaintiff Nos.1 and 2 represented by their father, plaintiff No.3, under registered sale deed dated 30.08.1993. The plaintiffs were put in possession. They appointed a watchman. On 18.12.2007 defendant No.1 dispossessed the plaintiffs and trespassed into the petition schedule property proclaiming title. The plaintiffs, therefore, filed a case before the Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, being LGC (SR) No.2106 of 2008. The Special Court disposed of the same giving liberty to the parties to approach the civil Court. Therefore, they filed the suit. They also alleged that defendant Nos.1 and 2 are trying to make construction on the plaint schedule land and also trying to alienate the property. Therefore, they filed separate applications, one seeking an injunction restraining alienation and the other restraining changing the use of the land. The first defendant filed the counter affidavit opposing the applications denying the petition averments including the averments made by the plaintiffs that they purchased the property under registered sale deed dated 30.08.1993 from defendant No.3 represented by her GPA, defendant No.4. They further alleged that late Sreenivasulu Naidu, the then Member of Legislative Assembly, was allotted 1200 square yards of land in the Society, but the same was not identified till two sale deeds were executed by the Society in favour of defendant No.3 on 17.08.1993. Therefore, the execution of sale deed by defendant No.3 is false. She further alleged that defendant No.3 executed sale deed in her favour on 20.11.2007 and put her in possession. Defendant No.1 further alleged that defendant No.4 might have created GPA, that when the GPA was for an extent of 600 square yards, he had already sold 850 square yards in his mother’s name and he could not have executed a sale deed in favour of plaintiff Nos.1 and 2 to an extent of 800 square yards. She also alleged that plaintiffs have no prima facie case nor balance of convenience. Defendant No.2 remained ex parte. Defendant No.4 filed counter affidavit stating that defendant No.3 purchased plot No.80-C admeasuring 1200 square yards including plaint schedule plot under two registered sale deeds dated 17.08.1993, that pending execution of such registered sale deeds she executed GPA dated 28.08.1991 appointing him as a lawful attorney, and that he is, therefore, authorized to sell the property covered by the GPA. In furtherance thereof, he sold petition schedule land admeasuring 800 square yards out of 1200 square yards under registered sale deed dated 30.08.1993 to the plaintiffs, and therefore, defendant No.3 is bound by the same. He also alleged that sale deed dated 20.11.2007 executed by defendant No.3 in favour of defendant No.1 is illegal, void ab initio, fraudulent and not binding on the plaintiffs. During enquiry the trial Court marked Exs.P1 to P34 for plaintiffs and Exs.R1 to R21 for defendants. Ex.P1 is registered GPA dated 28.08.1991 and Ex.P2 is the registered sale deed dated 30.08.1993 in favour of the plaintiffs. Ex.R1 is the registered sale deed dated 20.11.2007 executed by defendant No.3 in favour of defendant No.1. Ex.R2 is the certified copy of the sale deed dated 31.08.1993 executed by GPA in favour of his mother. Exs.R3 to R20 are documents like telephone bills, electricity bills, photographs etc., produced by defendant No.1 to prove possession. On considering the documentary evidence and rival contentions the Court below recorded findings that defendant No.4 had no authority to sell away the entire extent of plaint schedule land, and therefore, plaintiffs have no prima facie case of their title for 800 square yards, that Ex.P2 - sale deed, in favour of plaintiffs executed by defendant No.4 on behalf of defendant No.3 is not a valid document, and that no power is conferred on the GPA to deal with the property under Ex.P1. Learned Senior Counsel for the plaintiffs relied on Ex.P1 (GPA), Ex.P2, dated 30.08.1993 (sale deed in favour of plaintiffs) and Ex.R1, dated 20.11.2007 (sale deed in favour of defendant No.1), and submits that having regard to the boundaries in all these documents, the property which was sold by defendant No.3 through her GPA – defendant No.4, in favour of plaintiffs is one and the same, and therefore, the Court below was in error in concluding that the plaintiffs have no prima facie case. He points out that even if the area under Ex.P2 is shown to be 800 square yards, prima facie, the title of the plaintiffs is valid. Secondly, he would submit that even if the power granted to defendant No.4 by defendant No.3 is in respect of 600 square yards, to that extent the conveyance in favour of plaintiffs for 600 square yards is valid and binds the principal. Per contra, learned Senior Counsel for defendant Nos.1 and 2 submits that when the GPA had no authority to convey 800 square yards, Ex.P2 – sale deed, is void and cannot confer title on plaintiff Nos.1 and 2 even to the extent of 600 square yards. Nextly, he contends that defendant No.4 was empowered to deal with plot No.80 which may be different from plot No.80-C purchased by defendant No.1 from defendant No.3 in 2007. According to the learned Senior Counsel, plaintiffs have no prima facie case, and therefore, at their instance, defendant No.1 who is the rightful owner, cannot be prevented either from enjoying the property by raising construction or by alienating the property purchased by her under Ex.R1. We have considered the pleadings, the rival submissions and perused the impugned order passed by the Court below. The point that arises for consideration is whether plaintiff Nos.1 and 2 have demonstrated prima facie case, balance of convenience and hardship warranting the grant of temporary injunction under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC). It is axiomatic that power of the Court to grant injunction in supplementary proceedings is intended to maintain status quo pending adjudication of the suit. Such an injunction besides protecting the competing rights of the opposite parties also enables prevention of multiplicity of proceedings like restitution. It is also axiomatic that a party to the suit seeking temporary injunction has to discharge the burden of showing prima facie case, balance of convenience and hardship. In a suit for declaration and possession of a residential plot, plaintiff can always urge that pending the suit if the defendant constructs on the disputed land or alienates the property to third parties, he would suffer the legal injury which may not be compensated in terms of money. There cannot be any doubt that if the defendant who ultimately is found to have no title constructs on the land belonging to the plaintiff seeking declaration, more complications would arise. Therefore, besides preventing alienation of plaint schedule property to third parties, the Court can always direct to maintain status quo with regard to nature of the land or with regard to making constructions on the disputed land. For obtaining such an order which might in given circumstances cause severe hardship to defendant, there should be strong circumstances favouring grant of injunction in favour of plaintiff. At that stage, ordinarily, the Court must avoid going into minute details like the extent/area of the property and description of the property. What is relevant is the details as contemplated by law in Rule 3 of Order VII of CPC. This provision requires that when subject matter of the suit is immovable property, the plaint shall contain description of the property sufficient to identify it and boundaries or numbers so as to identify it properly. More often than not that a document is executed by the vendor in favour of the vendee for a given extent as mentioned in the sale deed but actually when the demised property is localized the area is either less or more. Merely because the area is more or less the conveyance is not rendered void or illegal. When there is a dispute with regard to authority to convey the title or the actual extent of the area demised under a document the principles referred to hereinabove must govern the situation. We will examine the facts of this case keeping the above principles. There is no doubt that defendant No.3, her two sons and two daughters executed registered GPA in favour of defendant No.4 on 28.08.1991 empowering him, inter alia, to sell plot No.80 in survey No.102/10, Hakeempet Village, Golconda Mandal, admeasuring 600 square yards or 500 square metres within municipal limits of Hyderabad Ward No.8, Block No.2. There is a serious contention that what is authorized to be sold is different from the property purchased by defendant No.1 and alternatively when the GPA is authorized to sell 600 square yards he conveyed 800 square yards to plaintiff Nos.1 and 2. In our considered opinion at interlocutory stage this is not much relevant. What is relevant is the factum of defendant No.3 executing registered GPA in favour of defendant No.4, which is not denied, the fact of GPA executing a registered sale deed Ex.P2 in favour of plaintiff Nos.1 and 2, and the fact of defendant No.3 executing registered sale deed long thereafter on 20.11.2007 in favour of defendant No.1. The boundaries in these documents are very much relevant to consider the issue at this stage. For the sake of convenience, we have noticed them in the following tabular column. Boundaries in different documents Boundaries Registered GPA, dated 28.08.1991 (Ex.P1) Plot No.80 Registered sale deed, dated 30.08.1993, in favour of plaintiffs (Ex.P2) Plot No.80-C Registered sale deed, dated 20.11.2007, in favour of defendant No.1 (Ex.R1) Plot No.80-C North Plot No.81-C Plot No.81-C Plot No.81-C South Plot No.79-C Plot No.79-C Plot No.79-C East Under allotment by the Society Part of Plot No.80-C of Vendor Part of Plot No.81-C West 40 feet wide road 40’ wide road 40’.0” Wide Road From the boundaries in the three documents, on probabilities, we are convinced that the land/plot which is subject matter of Ex.P1-GPA, Ex.P2-sale deed, and Ex.R1-sale deed is one and the same, though Ex.P1 mentions 600 square yards. In our considered opinion, it makes no difference even if the area is little more, and merely because of that it cannot be said that defendant No.4 had no power to execute sale deed on behalf of defendant No.3 in favour of plaintiff Nos.1 and 2. Furthermore, in Ex.P2-sale deed, eastern boundary is mentioned as part of plot No.80-C of vendor, whereas in Ex.P1 it has been clearly mentioned that the plot on the east is under allotment, presumably to Sreenivasulu Naidu. This only means that the entire extent of land allotted to Sreenivasulu Naidu, husband of defendant No.3, is 1200 square yards, and a part of it was sold to plaintiff Nos.1 and 2, though in the sale deed-Ex.P2 it was mentioned as 800 square yards. On balancing the probabilities, we are convinced that what was purchased by plaintiff Nos.1 and 2 under Ex.P2-sale deed is the same property which was sold subsequently by defendant No.3 in favour of defendant No.1. As the plot was already sold way back in 1993 to plaintiff Nos.1 and 2, defendant No.3 could not have again validly sold the same plot to defendant No.1 under registered sale deed - Ex.R1. Needless to mention that as per Section 48 of the Transfer of Property Act, 1882, the transfer by defendant No.3 in favour of defendant No.1 being subsequent, shall be subject to the rights created by defendant No.3 (through her GPA – defendant No.4) in favour of plaintiff Nos.1 and 2 earlier, and Ex.R1 does not in any manner invalidate the conveyance under Ex.P2 in favour of plaintiff Nos.1 and 2. Learned Senior Counsel for defendant Nos.1 and 2 submits that in view of Section 53 of the Transfer of Property Act the doctrine of lis pendens is attracted, and therefore, there may not be a separate ad interim injunction. He also submits that his clients are willing to give undertaking that they will not claim any equity if ultimately plaintiffs succeed in getting declaration in their favour. In our considered view these considerations must not weigh with the Court while considering the applications under Order XXXIX Rules 1 and 2 of CPC. Section 53 of the Transfer of Property Act does not totally prohibit the transfer of property by a party to the suit in favour of third party. It only renders such transfer without leave of the Court void. By reason of this, the interference of third party rights cannot be totally ruled out. Secondly, admittedly, the plaint schedule plot is in prime locality and if construction is permitted pending the suit, either party would suffer, because any construction would involve huge expenditure. Therefore, we do not feel countenanced by the submissions made by defendant Nos.1 and 2. Accordingly, for the above reasons, we set aside the impugned common order, and allow I.A.Nos.710 and 711 of 2009. There shall be ad interim injunction in favour of plaintiffs restraining the defendants from alienating the plaint schedule plot and also restraining them from altering the nature of the plaint schedule property by raising further construction thereon. The Civil Miscellaneous Appeals are accordingly allowed. We direct the parties to bear their respective costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J) .12.2009 vs