M. Chockalingam, J.@mdashThis judgment shall govern the above three appeals challenging an order of interim injunction made in O.A.No.1354 of 2007 in C.S.No.1107 of 2007, a suit for permanent injunction to restrain the defendants/appellants from interfering with the peaceful possession and enjoyment of the plaintiffs/respondents 1 and 2, pendente lite. The respondents 1 and 2 herein as plaintiffs filed a suit for permanent injunction restraining the defendants/appellants from interfering with their peaceful possession and enjoyment of the property. Pending the suit, they sought for an interim order of injunction restraining the defendants from interfering with their lawful possession and enjoyment of the suit property.
2. The applicants/plaintiffs have brought forth the instant application with the following allegations:
The plaintiffs purchased the properties at Door Nos.62 and Door No.63 Luz Church Road, Mylapore, under a sale deed dated 28.6.1995. They have been issued with separate pattas. The defendants are persons who have purchased the properties which are separated from the applicants'' properties by a 20 feet passage. The property purchased by the defendants from the three sons of late Shri Alladi Krishnaswami Iyer, is the subject matter of partition among the three sons. While effecting the partition deed, the three sons had clearly demarcated the boundaries and had showed the 20 feet passage as the access to the three properties running along the eastern side, The defendants cannot claim any right beyond the said passage. The defendants started interfering with the applicants'' lawful possession and enjoyment of the properties which is immediately after the 20 feet wide passage separating the applicants'' properties and the defendants'' properties. In view of the interference, the plaintiffs were proceeding to construct a compound wall. The defendants who do not have any manner of right, title or interest beyond the 20 feet passage, started objecting to the construction of the compound wall. They also started parking their cars in the properties belonging to the applicants. Under such circumstances, the applicants approached the Tahsildar, Mylapore, to demarcate the boundaries and also mark the pointing of limits. While the matter stood thus, the defendants approached the Collector of Chennai and appeared to have filed a petition to the Collector requesting for cancellation of patta issued in favour of the applicants. Based on this frivolous petition, the Collector of Chennai had also directed an enquiry to be conducted and requested the parties to appear for a personal hearing on 16.10.2007. While the applicants appeared, the defendants did not bother to appear. However, the defendants continue to interfere with the applicants'' properties. The ulterior motive of the defendants is to extend the 20 feet passage in order to enable them to obtain greater FSI in the event of development of their own properties. The attempts to interfere in their possession is causing irreparable injury, hardship and mental agony to the applicants. When the defendants have no right beyond the 20 feet passage, no injury or loss would be caused to them if the Court restrains them from in any manner interfering with the applicants'' enjoyment and possession of the properties. The balance of convenience is very much in favour of the applicants. If interim injunction is not granted, it would enable the defendants to continue to perpetrate their illegality which would cause irreparable loss to the applicants.
3. The application was resisted by the second defendant stating that the application is a vain and dubious attempt to annex the property in the north east of Survey No.1652/4 known as "Norton Lodge" which has not, been conveyed to the plaintiffs under their deed of sale. The plaintiffs were not in possession of that property. The land covered under R.S.No. 1652/4 measuring an extent of 1 ground and 250 sq. ft. was not conveyed to the plaintiffs under the sale deed dated 28.6.1995. The plaintiffs have sold an extent of 7545 sq. ft. on the eastern portion of the plaint schedule to one Venkata Subramanian, his wife Radha and his daughter Vaishnavi, and they are constructing a pucca bungalow. But, they have suppressed this alienation. The plaint averments are a conglomeration of misstatements, misrepresentation and prevarication of facts.
4. It is further averred that the properties known as "Norton Lodge" and "Ekamra Nivas", belonged to Dr. Sir Alladi Krishnaswami Iyer. By and under a registered settlement deed, dated 18.02.1949, late Dr. Sir Alladi Krishnaswami Iyer settled the property known as "Norton Lodge" and the other property to his three sons in equal shares. Under a deed of partition, dated 25.6.1966, the three brothers divided the said "Norton Lodge" property among themselves. The deed of partition refers to the putting up by late Dr. Sir Alladi Krishnaswami Iyer on the North Eastern side of the "Norton Lodge" property, an outhouse to his old residence and the old house having become dilapidated and demolished and only the vacant site and the outhouse remain. The recitals in the deed of partition indicates that the outhouse portion is also retained to be enjoyed by the owners of the three plots. The second defendant has been the tenant of the building under Mr. Alladi Ramakrishnan from 1988 and subsequently, he purchased the same under the deed of sale, dated 10.9.2003. The southern most plot No.3 has been purchased by the third defendant with the common right in the site on the East used as passage by deed of sale, dated 8.7.1983, and he has put up a pucca residential building therein. Plot No.1 at the Northern end has been purchased by the father of the first defendant with the common right of passage on the East by deed, dated 19.11.1984. Thus, the defendants have been enjoying the entire site East of their plots including the outhouse site in common. All the defendants have been parking their cars and vehicles in this outhouse site.
5. It is further alleged that the claim of the plaintiffs that they have been in enjoyment of the outhouse portion in R.S.No.1652/4 and that the defendants are interfering with their possession is false. The plaint averment that under the deed of partition, dated 26.5.1966, the outhouse portion in the "Norton Lodge" property was kept as HUF property is ludicrous. The deed of sale deed, dated 28.6.1995 executed by Justice Alladi Kuppuswami, his brother Mr. Alladi Prabhakar and Mr. Alladi Sitaram, under which the plaintiffs claim the plaint schedule land, is a tainted one and there was interpolation of sub-division No."4" of R.S.No.1652 in ink by handwriting in one place at page 3 and in three places in the schedule at page 10 of the said deed of sale. This is a clear attempt on the part of the plaintiffs to annex the outhouse portion in R.S.No.1652/4. The applicants, without the knowledge of the defendants, applied to the Revenue Authorities for the grant of pattas on the basis of the tampered deed of sale, and the Revenue Authorities have also issued patta in the names of the applicants. The defendants came to know about the same and have immediately approached the Revenue Authorities for cancellation of the patta for S.No.1652/16 in the names of the applicants.
6. The second defendant would further contend that the defendants never tried to interfere with the applicants'' possession and enjoyment of the outhouse portion in the Norton Lodge property, but it is the applicants who tried to encroach upon this portion by planting cement posts for erecting barbed wire fence in order to annex the outhouse portion in R.S.No.1652/4. The defendants have all along been parking their cars and two wheelers in the outhouse portion of R.S.No.1652/4 without any objection all these years. The allegation that the defendants, in order to enable to obtain greater FSI in the event of development of their properties, are trying to encroach upon this portion, is a figment of imagination. The applicants are also not in possession of the outhouse portion of R.S.No.1652/4 now sub-divided as S.No.1652/16 and have never been in possession thereof, and hence there is no question of defendant interfering with the applicants'' imaginary possession and enjoyment of the said portion or causing them hardship, pain or injury. There is absolutely no ground for grant of injunction as prayed for by the applicants, and hence the application was to be dismissed.
7. In the reply affidavit, the plaintiffs/applicants averred that the second defendant is adept in land grabbing activities; that a perusal of the certified copy of the sale deed produced by the applicants would clearly reveal that the second defendant does not have any right beyond the 20 feet passage; that the partition deed clearly contains the sketch showing the 3 plots and the 20 feet wide common passage; that in the Schedule A, B and C to the partition deed, the eastern boundary is clearly mentioned as a portion of the site retained for private road; that the eastern boundary for all the three properties purchased by the defendants clearly mentions the 20 feet wide passage; that the applicants are very much in possession and enjoyment of the property, and it is the second defendant who is guilty of suppressioveri and suggestiofalsi; that the attempt made by the second defendant is to unlawfully grab the valuable piece of property belonging to the plaintiffs by taking advantage of the absence of a compound wall; that the second defendant is guilty of committing fraud by choosing to extract a portion of the averments in the partition deed which in any case does not show that the outhouse portion is also a subject matter of partition; that the second defendant failed to mention the eastern boundary to the property which is categorically mentioned in all the three sale deeds; that the second defendant is clearly guilty of interpolation in his sale deed which has been done with ulterior objectives; that the so called interpolation of the figure ''4'' in the sale deed is completely false; that the title or the ownership of the applicants'' property can, if at all, be questioned only by the original owners; that it is completely fraudulent on the part of the second defendant to allege that the plan attached to the sale deed in favour of the plaintiffs/applicants has been prepared subsequent to execution of the sale deed; that it is not known as to how, the second defendant can go to the extent of alleging that the Power of Attorney executed by a Professor Alladi Prabhakar is a fantasy and that it cannot validate a void transfer; that instead of showing any portion of the suit property has been conveyed to him, the second defendant has made desperate attempts to question the power of attorney; that the admission that the defendants are parking their vehicles is enough to show the unlawful encroachment by the second defendant in the applicants'' property; that the second defendant has admitted indulging in acts to support the illusion which by itself would entitle the applicants for the injunction sought for; that the issue before the Collector is only regarding pointing of limits and there is no issue regarding title to the property; that except the false allegation, there is nothing else available to the defendants to support their fraudulent and false claims; that the applicants have established through the documents annexed to the plaint more than a prima facie case; that it is unheard of as to how a person can claim possession of property merely because the drainage pipes passes through the property, assuming without admitting that such drainage pipes are passing through the suit property; that when the owners of the property have not raised any issues regarding the title of the applicants to the suit property, the second defendant who has nothing to do with the property conveyed to the applicants, is attempting to step into the shoes of the owner; that it is a case where a third party or a stranger tries to question the title of the property of a person who is in lawful possession and enjoyment of the same, and hence, the application has got to be allowed.
8. The question that would arise for consideration in these appeals is whether the respondents 1 and 2/plaintiffs have made a prima facie case for grant of interim injunction.
9. Advancing the arguments on behalf of the appellants, the learned Senior Counsel Mr. T.R. Rajagopalan would submit that the respondents 1 and 2/plaintiffs have made the interim injunction application in respect of the suit property namely 1 ground and 250 sq. ft. which was the part of Survey No.1652/4 in which they had no title at all; that the plaintiffs relied upon a sale deed executed in their favour on 28.6.1995; but, the land covered in R.S.No.1652/4 was not at all conveyed to the plaintiffs under the sale deed; that the plaintiffs have deliberately added the said survey No.1652/4 in order to make an unlawful claim and grab the property; that the Norton Lodge was in Survey No.1652/4 which was the subject matter of partial partition among the sons of Dr. Sir Alladi Krishnaswami Iyer; that the partition that was entered into on 25.6.1966 among the brothers, would read that the rest of the site in Norton Lodge property is retained to be enjoyed by all the parties for a private road and each of them shall have the right of access to the portion allotted to him along the said private road and none of the parties shall have any right to act prejudicial to the right of any other with regard to the road or the road way; that this recital found in the partition deed would clearly indicate that the outhouse portion was also to be enjoyed by the owners of the three plots; that it was not correct to state that the plaintiffs were in actual enjoyment of the outhouse portion in Survey No.1652/4 subsequent to the purchase and the defendants interfered with their possession; that there was a compound wall abutting the property; that the same was demolished only in March-April, 2007; that from the time of respective purchase, the defendants 1 to 3 were parking the cars and also using the lands appurtenant to the outhouse and also the passage all along the period; that even after the alleged purchase in 1995, the plaintiffs did not interfere in the enjoyment of the suit property by the defendants; but, in March-April 2007, they prevented access to the north eastern part; and that having done so, the plaintiffs have come forward with a false case to state that they have purchased the property measuring 1 ground and 250 sq. ft. in Survey No.1652/4 also, and thus, they have become the owners of the property which was nothing but false.
10. Added further the learned Senior Counsel that a perusal of the documentary evidence produced and relied on by the plaintiffs would clearly indicate that they have come with the false case; that an agreement for sale was entered into between the plaintiffs and their vendors on 11.2.1993 in respect of the 2/3rd share in the HUF property which would refer only to R.S.No.1652/3 and not 1652/4; that the three vendors have applied to the Income Tax Department for permission to sell their respective shares; that in their applications in Form 34-A, a reference was made only to their undivided share in Door Nos.62 and 63 in R.S.No.1652/3 and not any part in R.S.No.1652/4; that in the memorandum of oral partition entered into among the parties including Mr. Alladi Ramakrishnan, the schedule referred only to R.S.No.1652/3 and nowhere R.S.No.1652/4 was referred to; that a deed of power of attorney was executed by Mr. Justice Alladi Kuppuswami and his son Mr. Alladi Sitaram in favour of one Mr. Kothandaraman, Advocate, on 14.7.1995, authorizing him to present the deed of sale dated 28.6.1995, for registration and admit execution before the Registrar; that the power of attorney would refer only to Door Nos.62 and 63 in R.S.No.1652/3 and not R.S.No.1652/4; that a duplicate copy of the deed of sale typed in the sheets dated 28.6.1995 and placed before the Registrar for registration, contained interpolations wherein 1652/4 was added as per the Schedule 11(a) in the sale deed dated 28.6.1995, and also the power of attorney dated 14.7.1995; that the extent of the land sold to the plaintiffs, was 13464 sq. ft.; that the portion sold in Ekamra Nivas bearing Survey No.1652/4, was then subdivided as 1652/14 in the names of the plaintiffs, but with an extent of 13608 sq. ft. approximately tallying with the extent in the above sale deeds and the plan; and that the plaintiffs got another patta for the new subdivision in Survey No.1652/16 in the Norton Lodge which was for the property in Survey No.1652/4 with an extent of 2650 sq. ft. which is the subject matter of the suit; that this was done by insertion of figure ''4'' after the figure in Survey No.1652/3 in the deed of sale dated 28.6.1995.
11. The learned Senior Counsel would further submit that all the three vendors have filed separate returns under the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 wherein they have shown Ekamra Nivas in Survey No.1652/3 as their only property in Mylapore; that the Norton Lodge property in Survey No.1652/4 or any part thereof was not shown in the returns; that the deed of power of attorney dated 14.7.1995, executed by two of the vendors in favour of Mr. Kothandaraman, Advocate'', to present the deed of sale in favour of the plaintiffs, was in respect of Survey No.1652/3 and not in respect of Survey No.1652/4, and thus, it would be quite clear that the power deed did not confer any authority on the agent to admit execution in respect of 1652/4, and thus, the power holder could not convey the vendees any right in respect of 1652/4; that under the circumstances, the plaintiffs cannot lay any claim in respect of any part of Survey No.1652/4 on the strength of the said sale deed; that the plan attached to the deed has been subsequent to the execution of the deed of sale; that even in the plan, the reference at the bottom was only to Ekamra Nivas which lies only in Survey No.1652/3 and no portion of Ekamra Nivas was ever in R.S.No.1652/4; that when it came to the knowledge of the defendants that the plaintiffs maneuvered to get a subdivision for Survey No.1652/4 and got patta in their names for subdivided Survey No.1652/16, they immediately moved the revenue authorities for cancellation of the patta which has actually been cancelled; that the plaintiffs cannot lay any claim on the strength of the fabricated and fraudulent deed of sale; that it was contended by the respondents 1 and 2 that though Alladi Prabhakar did not join with others in executing the power of attorney originally, he has ratified the same by executing a registered power of attorney subsequently which would not cure the legal defect already occurred and thus, the ex post facto power deed dated 4.3.1996 could not be acted upon or could not make the void sale valid.
12. Added further the learned Senior Counsel that in the instant case, it would be quite clear that they have not proved at least prima facie title to the property in question; that a reading of the partition deed would clearly indicate that apart from plot Nos.1, 2 and 3, which were sold to the defendants, the remainder of the property in Norton Lodge was retained to be enjoyed by all the parties for a private road; that they have been parking their cars; that also they have been using the property all along the period; that the property in question belonged to all the defendants in common, and they have been in possession and enjoyment; that though the property was purchased in the year 1995, the sale deed did not convey title to the purchasers in Survey No.1652/4, and thus, the plaintiffs did not have title to the property; that the property in Survey No.1652/4 was self acquired property of the three sons of Alladi Krishnaswami Iyer; that as on today, the remainder of the property belonged to Alladi Ramakrishnan, Janaki Mohan the daughter of Alladi Prabhakar who got the property by way of settlement deed in 1972, and Alladi Sitaram, the son of Alladi Kuppuswami; that the property in question actually belonged to Hindu Undivided Family; that even assuming that the defendants have no right to the property and making infringement, the above said persons were the only persons who could question the same and not the plaintiffs who have no iota of right in the property; that the learned Single Judge instead of taking up the question whether the plaintiffs have placed any material to show that they have got a prima facie case to get an order of interim injunction, has discussed and has also recorded a finding that the defendants have no right, and they are utter strangers to the property of a third party, and hence, they could not question the same; that in view of all the defects found, the learned Single Judge should have held that the plaintiffs have not proved either title or possession to the property; that under the circumstances, the injunction application should have been dismissed, and hence, for the reasons above, the appeals have got to be allowed.
13. In support of his contentions, the learned Senior Counsel relied on the following decisions:
(i) AIR 1914 P.C. 1914 (Jambu Prasad v. Muhammad Nawab Aftab Ali Khan and others);
(ii)
(iii)
(iv)
14. Contrary to the above contentions, the learned Senior Counsel Mr. T.V. Ramanujun appearing for the respondents 1 and 2/plaintiffs would submit that the learned Single Judge only after appreciation of evidence placed has granted the interim injunction, and hence, it has got to be sustained. He would further submit that a reading of the partition deed would clearly indicate that a private road with a width of 20 feet was left on the eastern side of the three plots which were allotted to the brothers for providing access from the Luz Church Road to the full length of the entire property on the north eastern corner of the entire plot; that there was an existing outhouse and also the site appurtenant thereto totally measuring 1 ground and 250 sq. ft.; that even in all the three sale deeds in favour of the defendants 1 to 3, it would be quite clear that the eastern boundary is shown as 20 feet, and beyond this north south private road, a small piece of land along with the outhouse is situate on the east, and thus, the defendants could not lay any claim in the property; that admittedly, the plaintiffs have purchased the property allotted to the shares of two sons of Alladi Krishnaswami Iyer namely Alladi Kuppuswami and Alladi Prabhakar, by a sale deed dated 28.6.1995; that a reading of the schedule annexed to the plaint and the plan attached would clearly indicate that the subject matter of sale was not only 1652/3, but also 1652/4; that it is true that originally when the sale deed was typed, Survey No.1652/4 was omitted to be included; that when the mistake was found out, it was rectified; that merely because of the reason it was not initialed by the vendors, it cannot be commented that it was added later; that when the sale deed was placed along with the typed sheets and plan, the mistakes were also corrected; that at the time of the registration, it was in order, and hence, much comment cannot be made out of the mistakes that have crept in; that the property was sold in the year 1995; that immediately in the year 1996, permission was sought for before the MMDA for demolition of the outhouse; that accordingly, it was demolished thereafter; that from the time of sale, the entire property covered under the sale deed in favour of the plaintiffs have been in their enjoyment and possession continuously; that it is not correct to state that the defendants have used any property situate on the east of the north south common passage; that the second defendant made his attempt as found in the counter to purchase the property; but, he failed; and that under the circumstances, he tried to interfere along with the other defendants in the possession and enjoyment and infringe the plaintiffs'' rights which necessitated the plaintiffs to file the suit.
15. Added further the learned Senior Counsel that two of the vendors in Hyderabad signed the documents, while the third vendor was outside, and he has also signed the document; that it is true that the power of attorney was executed in favour of Mr. Kothandaraman, Advocate, originally by Alladi Kuppuswami and his son; that in that power of attorney, Alladi Prabhakar did not join; but, he has subsequently ratified the act; that it should not be forgotten that the sale deeds were originally executed by the vendors on 28.6.1995; that the power of attorney was executed on 14.7.1995 by two of the vendors pursuant to which the sale deed was placed for registration and registered accordingly; that the power of attorney was given only for the purpose of admitting execution since the documents were signed by all the three vendors even before the power of attorney; that it would clearly indicate that all the three vendors have sold the property including Survey No.1652/4 which act was consciously done by them; that merely because a mistake has crept in, the rights of the plaintiffs should not be defeated; that while there is a passage having a width of 20 feet, the defendants at the time of the execution of the sale deeds have found the measurement of the passage as 24" x 114" which itself would clearly indicate that they have made an attempt to grab the property, but in vain; that at the time when the matter was enquired by the trial Court, the sketch signed by Alladi Prabhakar, was also filed wherein it was signed by all the three owners, which would clearly indicate that the property in Survey No.1652/4 was also the subject matter of sale in which Alladi Prabhakar did not make any claim; that the defendants who did not have any iota of right on the east of the passage, cannot now come forward to say that they have got any right or title or possession to the property; that the learned Single judge has considered the contentions proper and also the materials available and has come to the conclusion that the plaintiffs have proved the prima facie case, and also the balance of convenience was in their favour, and under the circumstances, the order of the learned Single Judge has got to be sustained.
16. The Court paid its anxious consideration on the submissions made and considered the materials available and also the order under challenge.
17. At the outset, it would be better to state the factual events which are admitted by the parties. Dr. Sir Alladi Kirshnaswami Iyer, one of the makers of the Indian Constitution, owned properties known as Norton Lodge bearing R.S.No. 1652/4 with an extent of 17 grounds and also Ekamra Nivas bearing Door Nos.62 and 63 in R.S.No.1652/3, Mylapore, having an extent of 27 grounds. He executed a deed of settlement on 18.2.1949, in favour of his three sons namely Alladi Kuppuswami, Alladi Ramakrishnan and Alladi Prabhakar, with a recital to enjoy the same absolutely as the sole and self acquired property. The three sons entered into a partition deed on 25.6.1966, whereby each had 10925 sq. ft. The partition deed has got a specific recital as follows:
The rest of the site in Norton Lodge property is retained to be enjoyed by all the parties for a private road and each of them shall have the right of access to the portion allotted to him along the said private road. None of the parties shall have any right to act prejudicial to the right of any other with regard to the road or the road way.
18. The very reading of the partition deed would make it abundantly clear that a passage having a width of 20 feet leading to the property from Luz Church Road was kept in common for enjoyment of all the three who had the respective plots under the partition deed. The first defendant had made the purchase on 19.11.1984, and the third defendant made the purchase on 8.7.1983. The second defendant made the purchase on 10.9.2003. An extent of 1 ground and 250 sq. ft. situate on the north eastern corner of R.S.No.1652/4 wherein originally an outhouse was situate, is the subject matter of the suit. The said property which is the subject matter of the suit is situate on the east of the north south common passage. As far as Ekamra Nivas was concerned, it was the subject matter of a suit in C.S.No.953 of 1989 which ended in a memorandum of partition deed dated 29.1.1995 between the three brothers Alladi Kuppuswami, Alladi Ramakrishnan and Alladi Prabhakar. The plaintiffs have purchased the property under a registered sale deed dated 28.6.1995, from all the three brothers.
19. While the matter stood thus, the plaintiffs have filed the instant suit alleging that the property purchased by them lies in R.S.No.1652/3 i.e., Ekamra Nivas and also a part of R.S.No.1652/4 to an extent of 1 ground and 250 sq. ft. situate on the north eastern corner, and the attempted interference of the defendants was the cause of action for filing the suit. While doing so, they sought for interim injunction, and it has been granted by the learned Single Judge which is the subject matter of challenge before this Court.
20. What was all contended by the defendants before the trial Court and equally as appellants before this Court is that the plaintiffs had no title to the property situate in R.S.No.1652/4; that the power of attorney who executed the sale deed virtually, did not have the power to execute the sale deed in respect of R.S.No.1652/4, and hence, no title could pass to the plaintiffs; that it was a case where not only there was defective title, but also they had no title at all, and hence, the plaintiffs have not shown any prima facie case or balance of convenience in their favour.
21. As could be seen above, out of two properties of Dr. Sir Alladi Krishnaswami Iyer, Norton Lodge was situate in R.S.No.1652/4 with an outhouse measuring 1 ground and 250 sq. ft. on the north eastern corner, which was a part of 1652/4. It is not in controversy that the three defendants have purchased three plots from the respective owners in R.S.No.1652/4 pursuant to the partial partition. All these three plots are admittedly situate on the west of the common passage. It is also admitted that the common passage runs from Luz Church Road towards north till the end of the property. From the very reading of the sale deeds, it would be quite clear that the property that was conveyed to the three defendants was situate on the west of the private road having a width of 20 feet. Now, at this juncture, it is pertinent to point out that, the appellants/defendants have not claimed any title over the suit property; but, relying upon the partition deed, it is contended that not only the 20 feet width road, but also the property in question namely 1 ground and 250 sq. ft., was also kept in common for the use of three plot owners, and they have been using so. On the contrary, the case of the plaintiffs is that the entire property in R.S.No.1652/3 was the subject matter of a civil suit; that a memorandum of understanding was entered into, and they have purchased the property in Door Nos.62 and 63 under a registered sale deed dated 28.6.1995. Thus, their entire case is rested on the said sale deed. What are all required at this stage is to find out whether they have got a prima facie case which alone would entitle them for an injunction pendente lite. No oral evidence was adduced before the trial Court. On perusal of the materials available, this Court is afraid whether it could be found that the plaintiffs have made a prima facie case for the following reasons.
22. Even before the memorandum of understanding was entered into between the parties, there was a sale agreement between the plaintiffs and the vendors on 11.2.1993 which would refer to 2/3rd undivided share of the vendors in the HUF property. The agreement referred only to R.S.No.1652/3. The sale deed that was entered into between the parties on 28.6.1995, was pursuant to the said agreement. But, there was no reference to R.S.No.1652/4 in the agreement entered into between the parties. The vendors under the deed of sale asked permission of the appropriate authority for making a sale. They have applied in Form 34-A. They have referred only to R.S.No.1652/3 and not R.S.No.1652/4. The schedule attached to the memorandum of oral partition among the three sons of Shri Alladi Krishnaswami Iyer referred only to R.S.No.1652/3; but, it did not refer to R.S.No.1652/4. Though it is contended by the plaintiffs that pursuant to the purchase in the year 1995, permission was sought for from the competent authority to demolish the outhouse, and accordingly, it was done, no specific averment is made in the affidavit or plaint that the demolition had taken place in the year 1995 or 1996. On the contrary, it is specifically admitted by the defendants in the counter that they have been parking their vehicles in that site till the demolition of the compound wall in March-April 2007.
23. Admittedly, the sale deed was signed by the two of the vendors on 28.6.1995, and the power of attorney deed was executed on 14.7.1995, in favour of one Mr. Kothandaraman. A perusal of the power of attorney deed executed by Alladi Kuppuswami and Alladi Sitaram would refer only to R.S.No.1652/3 and did not whisper anything about R.S.No.1652/4. In that power deed, Mr. Alladi Prabhakar who was shown as one of the vendors under the sale deed, has not executed the power. Under such circumstances, it can be well stated that the said Kothandaraman had no authority, and hence the power deed placed before the Registrar for registration of the sale deed, did not confer any authority on the agent Mr. Kothandaraman to admit execution of the sale deed in respect of R.S.No.1652/4 or act as agent of Mr. Alladi Prabhakar. But, the sale deed executed contained R.S.No.1652/4 also. An endorsement has also been made as if the power deed was executed by all the three namely Alladi Kuppuswami, Alladi Sitaram and also Alladi Prabhakar; but, factually it was not so.
24. Apart from the above defects that are found in the power deed, and the lack of authority of the agent to admit execution, throughout the description of the survey number, figure ''4'' was found interpolated not in one place, but the entire document. The plaintiffs desired to rely upon a plan that was annexed thereto. It is pertinent to point out that it was not the original. On the basis of a copy, it cannot be taken as if R.S.No.1652/4 was originally the subject matter included for sale. The contention put forth by the learned Senior Counsel for the respondents 1 and 2 that at the time when the vendors signed the document, they were conscious of the fact that R.S.No.1652/4 was also included as subject matter of sale cannot, at this stage, be accepted without evidence for the simple reason that the permission sought for from the Income Tax Department for sale of the property and the power of attorney all would refer only to R.S.No.1652/3 and not 1652/4 at all. Apart from that, the sale deeds were executed at Hyderabad. At what juncture figure ''4'' came to be added has got to be explained. The learned Senior Counsel relied on a plan wherein all the parties including Mr. Alladi Prabhakar, have signed, and it was also placed in the hands of the learned Single Judge. This document cannot be given any evidentiary value at all for the simple reason that the subdivision as 1652/14 and 1652/16 was made only in the year 1995-96. But; the document was found to have been prepared in 1993 itself and signed by the parties and hence, that cannot in any way advance the case of the respondents 1 and 2/plaintiffs.
25. Latin expression "prima facie" means at the first sight or in the first appearance or on the face of it so far as can be judged from the first disclosure. In order to make a prima facie case, the plaintiff must put forth such evidence as in the judgment of law is sufficient to establish the fact and if not rebutted remains sufficient for that purpose. In the instant case, the plaintiffs rested their entire case on the sale deed which was found to be defective as mentioned above. The plaintiffs have got an opportunity to explain away the same at the time of trial by adducing necessary and sufficient evidence. At this juncture, it is pertinent to point out that on the strength of the materials now available, it cannot be held that the plaintiffs have shown to have a prima facie case entitling for interim order of injunction. In such circumstances, this Court is of the considered opinion that the order of the learned Single Judge has got to be set aside. In the result, all these original side appeals are allowed setting aside the order of the learned Single Judge and vacating the interim order. As far as the request for appointment of Advocate Commissioner is concerned, the appellants are given liberty to make an application before the trial Court. The parties will bear their costs. Consequently, connected MPs are closed.
