N.Praveen Kumar vs. Syed Hassan

THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY

CIVIL REVISION PETITION Nos.3730 & 3742 AND 3560 of 2008

COMMON ORDER:

Civil Revision Petition Nos.3730 and 3742 of 2008 are directed against the order dated 01.08.2008 in C.M.A.Nos.285 and 286 of 2007 and Civil Revision Petition No.3560 of 2008 is directed against the order dated 09.04.2008 in C.M.A.No.287 of 2007, on the file of III-Additional Chief Judge, City Civil Court, at Hyderabad, wherein the said appeals filed by the petitioners herein were dismissed, confirming the order dated 08.05.2007 in I.A.No.604 of 2007 in O.S.No.1770 of 2007 and I.A.No.605 of 2007 in O.S.No.1769 of 2007 and I.A.No.603 of 2007 in O.S.No.1771 of 2007, on the file of V-Junior Civil Judge, City Civil Court, at Hyderabad, wherein the said applications filed by the petitioners herein for temporary injunction under Order XXXIX Rule 1 CPC, were dismissed.

2. Heard both sides. Perused the records.

3. The petitioner in CRP No.3730 of 2008 purchased Flat No.704 under registered sale deed dated 08.01.2007 and the petitioner in CRP No.3742 of 2008 purchased Flat No.703 under registered sale deed dated 08.01.2007 and the petitioner in CRP No.3560 purchased Flat No.604 under registered sale deed dated 18.11.2006 from the builder in Tirumalasha Residency situated in Yellareddyguda, Ameerpet, Hyderabad. The petitioners filed the suits for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of their respective flats purchased by them. According to the petitioners/

plaintiffs, the defendants have no right whatsoever and, on account of some inter se dispute between the builder and land owner, they are trying to interfere with the peaceful possession and enjoyment of the respective flats by the petitioners/plaintiffs who purchased them bonafidely for valuable consideration. Along with the suit, they filed I.A. seeking temporary injunctions, pending disposal of this suit.

4. The respondents filed counter opposing the applications on the ground that the suit flats were constructed unauthorisedly without any permission from Municipal Corporation of Hyderabad (MCH) and the sale deeds were brought into existence by the petitioners in collusion with the developer. The respondents, who are the land owners, contend that after obtaining sanction from the MCH for construction of stilt plus five floors, they entered into registered Development Agreement-cum-GPA vide Document No.922 of 2002 dated 08.03.2002 with the developer and subsequently, the developer obtained revised sanction for construction of cellar, stilt, five floors and made the construction accordingly and as per the agreement, the land owner is entitled for 40% share in the flats and also the cellar and stilt area. The respondents allege that the developer constructed $6^{th}$ and $7^{th}$ floors without any permission from MCH and though there was an agreement between the land owner and developer for sharing construction in the 6^th

and 7^th floors, the said construction is however illegal.

The respondents further contended that as the developer failed to fulfill his obligations under the agreement, they filed C.D.No.25 of 2006 before the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, against the developer and in the said matter, an Advocate Commissioner was appointed and after making local inspection, he filed a report. The respondents alleged that the developer, without demarcating the share of the respondents in the 6^th and 7^th floors, was trying to transfer the flats and, therefore, they filed an application vide I.A.No.2909 of 2006 and the developer filed a counter.

5. It is not disputed that, after full-fledged enquiry, C.D.No.25 of 2006 was disposed of by the Commission by order dated 30.12.2008, wherein the Commission directed both the parties to comply with the Memorandum of Understanding (MoU) dated 06.11.2004 and also directed the developer to complete the unfinished work in Flat Nos. 605 and 702 and also the works in common areas including the car parking area and also pay arrears of alternative accommodation at the rate of Rs.15,000/- per month and also to handover the complainants share i.e., land owners share in 6^th and 7^th floors as per the MoU, besides issuing certain other directions. The said order also shows that the Advocate Commissioner filed report regarding the status of construction of the work, floor-wise. It is stated that as per the MoU and the order of the Commission, Flat Nos.603, 605 and 702 fell to the share of the respondent-land owners and Flat Nos.604, 704 and 703 fell to the share of the developer, besides other flats in the other floors. The petitioners claim to have purchased Flat Nos.604, 704 and 703 from the developer out of those flats, which fell to the developers share.

6. The trial Court dismissed the applications on the ground that the constructions in the 6^th and 7^th floors were unauthorized and, therefore, no injunction can be granted in favour of the petitioners and the appellate Court confirmed the same. The learned counsel for the petitioner submits that necessary proposals for regularization of the construction of the 6^th and 7^th floors are pending consideration by MCH and the Consumer Forum also

directed the builder to obtain necessary clearance from the MCH and Fire Services Department within three months. Though an injunction cannot be granted to protect the possession of unauthorized construction, the fact, however, remains that on account of disputes between the builder and land owner, innocent purchasers of the flats for valuable consideration, cannot be put to loss or hardship. Inasmuch as it is stated that the proposals for regularization of the construction of the 6^th and 7^th floors is under consideration of the MCH authorities, and the petitioners have purchased the flats from out of the share of the developer over which the respondent-land owners cannot have any claim, it is considered just and expedient in the interest of justice to direct both the parties to maintain status quo obtaining as on today regarding possession of the flats, which are subject matter of the three suits, till disposal of the suits.

7. In the result, the three civil revision petitions are disposed of, with the above direction. There shall be no order as to costs.

G.V.SEETHAPATHY, J

19^th October, 2011

KSM