APHC010052922025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3527] THURSDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE B KRISHNA MOHAN THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA CIVIL MISCELLANEOUS APPEAL NO: 62/2025 Between: Degala Sambaiah and Others ...APPELLANT(S) AND Degala Srinivasa Rao and Others ...RESPONDENT(S) Counsel for the Appellant(S): 1. N SRIRAM MURTHY Counsel for the Respondent(S): 1. VENKATESHWARLU YARRAM REDDY The Court made the following Judgment: (Per Hon’ble Sri Justice B.Krishna Mohan) Heard the learned counsel for the appellants and the learned counsel for the respondent Nos.1 & 2. 2. This C.M.A. arises against the order passed in I.A.No.654 of 2023 in O.S.No.74 of 2023 on the file of II Additional District Judge, Guntur dated 25.10.2024. 2 3. The appellants herein are the respondent Nos.1 & 5 in the above said I.A. and the defendant Nos.1 & 5 in the above said suit. The respondent Nos.1 & 2 herein are the petitioners in the above said I.A. and the plaintiffs in the above said suit. The respondent Nos.3 to 5 herein are the respondent Nos.2 to 4 in the above said I.A. and the defendant Nos.3 to 5 in the above said suit who are sailing with the appellants herein. 4. The learned counsel for the appellants submits that the above said suit was instituted by the respondent Nos.1 & 2 herein for grant of preliminary decree in respect of the plaint schedule property by metes and bounds, convenience and inconvenience with reference to the good and bad qualities proportionally compared with the extent of land of plaintiffs and the defendants share in the suit schedule property and to allot the individual shares of the plaintiffs claiming 3971.74 Sq. Yds. and the remaining shares to the defendants after determination of the same out of the total extent of 18072.96 Sq. Yds. in Sy.No.714/1B, 714/1C, 714/1D & 714/1E of Yanamadala Village, Prathipadu Mandal, Guntur District as per the lay out permit L.P.No.5/2019/ GNT in R.C.No. CRDA – 12026 (35)/5/2017/2018 dated 20.03.2019 as described with the boundaries in the plaint schedule annexed to the plaint in the said suit. (a) Whereas, the trial court considered the above said I.A. on merits but granted relief for the petitioners/ plaintiffs therein for the whole extent of plaint schedule property though admittedly the share of the petitioners/ plaintiffs therein is confined to 3971.74 Sq. Yds. out of the above said total extent. In 3 view of the above said orders of granting temporary injunction by the trial court in the above said I.A. dated 25.10.2024, the respondents/ defendants therein specifically the appellants herein are aggrieved of the same as they are unable to deal with their share of land though the land was developed in the above said L.P. by taking due permission from the authorities concerned. (b) The learned counsel for the appellants further contends that the appellants herein/ defendant Nos.1 & 5 filed the written statement in the main suit and the 1st appellant/ 1st defendant also filed counter in the above said I.A. but the same was not considered by the court below while disposing of the above said I.A. for grant of temporary injunction pending the suit. (c) Be that as it may, the 2nd appellant/ 5th defendant filed the counter in the above said I.A. stating that she is the absolute owner to an extent of Ac.0.75 cents in Sy.No.714/1B and herself along with other respondents therein jointly applied for permission for laying of plots in their respective lands and obtained permission from CRDA. Later, she laid plots with her own funds and the plot Nos.34 to 50 were laid in her own land. However, she further averred that she has not alienated any plot to anyone till now and she has not signed on any sale deeds sold by the petitioners/ respondent Nos.1 to 4 therein. 5. On the other hand, the learned counsel for the respondent Nos.1 & 2 herein submits that the above said suit was instituted for partition of the plaint schedule property as the parties of both sides are joint owners and they 4 obtained formal permission from the CRDA in an approved lay out together for developing the said land into plots. In view of the dispute amongst the parties, it was necessitated for the respondent Nos.1 & 2 to institute the above said suit for grant of preliminary decree with respect to the total extent of plaint schedule property after determining the shares of plaintiffs and the defendants as per their entitlement of share and separation of the same by metes and bounds. When the suit is pending, if the defendants deal with the subject plots with alienation, the interest of the plaintiffs would suffer and they suffer an irreparable loss and hardship. As per the lay out different plots come up at different places and the different parcels of the land will go under the common areas and parks etc. (a) Hence, it is not clear at this stage, which part of the land falls in the lay out at which place and the nature of the development of the same. Unless there is a preliminary decree to separate the total land by metes and bounds as per the respective shares of the parties, the subject land cannot be dealt with for alienation till then. If alienation is allowed at this stage pending the suit, some of the parties may adversely be affected at the time of execution of the preliminary decree that may be passed in the due course. 6. In reply, the learned counsel for the appellants submits that the respondents/ plaintiffs cannot stall the whole subject land for the sake of determination of their shares out of the said land from alienation. He further submits that the trial court did not consider the counter of the 1st appellant/ 1st defendant. Had an opportunity been given to the 1st appellant/ 1st defendant, 5 he would have persuaded the court by demonstrating that the extents of the land for which the parties are entitled even notionally. The court below also did not conduct a detailed enquiry in the above said I.A. while considering the relief sought for, as no documents are marked in the above said I.A. 7. In view of the above said facts and circumstances and upon consideration of the rival submissions made, as the court below in its order in the above said I.A. dated 25.10.2024 noted at the top that the respondent Nos.1 to 4 are set exparte and at para No.6 of the said order, observed that the 1st respondent/ 1st defendant filed written statement but no counter is filed for which as stated supra, the learned counsel raised serious objection showing the counter filed by the 1st respondent/ 1st defendant therein which is enclosed in the list of material papers at page No.22 of this appeal, this court has got serious concern to deal with the situation as under in the interest of justice. 8. For the foregoing reasons and submissions, it is to be seen that in view of the main relief sought in the suit and as the parties are having different shares in the total extent of plaint schedule property, the trial court is permitted once again to look into the matter afresh for consideration of the above said I.A. giving opportunity to all the parties concerned to make their submissions by filing necessary additional affidavits/ counters and the documents in support of the same in the above said I.A. Then it shall be reheard conducting denovo enquiry by giving due opportunity to all the parties concerned and appropriate orders shall be passed on it’s own merits quickly 6 in accordance with law uninfluenced by the above said order of the trial court dated 25.10.2024. However, it is made clear that pending disposal of the above said I.A. by the trial court as per the above said directions, there shall be an order of status quo as on today to be maintained with respect to the plaint schedule property and the same will be subject to the outcome of the said I.A. finally before the trial court. The said I.A. shall be disposed of within a period of three (3) months from the date of receipt of this order. For early disposal of the above said I.A., both the parties shall cooperate. 9. Accordingly, the Civil Miscellaneous Appeal is disposed of. No order as to costs. As a sequel, Miscellaneous Petitions pending, if any, shall stand closed. _________________________ JUSTICE B.KRISHNA MOHAN __________________________________ JUSTICE A.HARI HARANADHA SARMA 03.04.2025 NNN