U. Venkateswara Rao and another vs Dr. U. Rama Rao

Srinivasan, J.—These two appeals are filed by the defendants-1 and 2 in the suit C.S. No. 1687 of 1993 against the orders passed in O.A.

No. 1018 of 1993 and O.A. No. 1018 of 1993 and O.A. No. 1017 of 1993 respectively. While O.A. No. 1017/93 is for an injunction

restraining the appellants herein from alienating/selling the scheduled mentioned property to the 3rd defendant or to any other person, pending

disposal of the suit O.A. No. 1018 of 1993 is for an injunction restraining the appellants and the 3rd defendant from putting up any construction in

the schedule mentioned property till the disposal of the suit. The facts which are necessary for the purpose of these two appeals are shortly as

follows:

The plaintiff and defendants 1 and 2 are brothers. There was a partition in the family among the brothers and others on 19.9.1975. One of the

clauses in the partition deed provided for a right of pre-emption in favour of the plaintiff with respect to an extent of 1 ground of land abutting the

main road viz. Ritheredon Road in the event of the defendants 1 and 2 deciding to sell the said property. The plaintiff issued a notice in August,

1992 to the defendants stating that they were attempting to sell the property and he was prepared to purchase the said extent of 1 ground from

them. A reply was sent by the defendants stating that the market value of the price of the said extent of 1 ground is Rs. 18 lakhs and they called

upon the plaintiff to pay the said amount. The plaintiff sent a reply stating that the market, value of the said extent of land is round about Rs. 10 to

13 lakhs and he wanted the defendants to revise the price. He invited the defendants to have a discussion of the matter, A reply was sent by the

defendants insisting upon the price of Rs. 18 lakhs for the 1 ground plot and calling upon the plaintiff to exercise his option within 15 days from the

date of the said letter. The plaintiff once again sent a reply reiterating his stand.

The defendants 1 and 2 entered into an agreement with the 3rd defendant for the sale of an extent of 5 grounds and 60 sq.ft. situated in 27,

Ritherdon Road. That extent excluded 1 ground plot which was the subject matter of pre-emption clause. The property of 5 grounds and 60 sq.ft.,

was described in Schedule-A to the agreement.

Thereafter, the plaintiff filed the suit for declaration that he is entitled to the pre-emptive rights to purchase the plaintiff schedule property and

direction to the defendants to sell the same after fixing the value. The plaintiff also prayed for permanent injunction restricting the defendants from

alienating the plaint schedule property. Pending suit, the plaintiff filed O.A. No. 1017 of 1993 for an injunction restraining the defendants-1 and 2

from alienating/selling the schedule mentioned/ property to the 3rd defendant or to any other person till the disposal of the suit and O.A. No. 1018

of 1993, the plaintiff prayed for an injunction restraining the defendants from putting up any construction in the said property. The learned Single

Judge initially granted interim injunction in both O.As and the defendants-I and 2 filed Application Nos. 522 and 523 of 1994 for vacating interim

orders and dismissing the Original Applications. All the applications were heard together by the learned Judge and he passed a common order on

29.3.1994. He confirmed the interim orders of injunction and dismissed the applications filed by the appellants herein to vacate the interim orders.

The appellants filed Application No. 1090 of 1994 for clarification of the interim order. According to them, the interim order related to the entire

property situated in 27, Ritherdon Road, comprising 6 grounds and 60 feet but the plaintiff''s claim was confined only to one ground of land. The

learned Judge clarified that the injunction granted by him in O.A. Nos. 1017 and 1018 of 1993, related only to the land measuring 60 feet x 40

feet abutting the main road viz., Ritherdon Road.

Aggrieved by the grant of injunction in O.A. Nos. 1017 and 1018 of 1993, the defendants-1 and 2 have preferred these two appeals. It is clear

from the statement of facts mentioned above that the defendants 1 and 2 continued to be the owners of one ground of plot abutting the main road

with reference to which injunction has been granted. The agreement produced by the defendants shows that it relates only to 5 grounds and 60

sq.ft. and the agreement expressly excluded 1 ground plot which is the subject matter of preemption clause. In fact, in the preamble in third

paragraph after referring to the partition deed, the following passage is found:

However the first and second vendors in order to avoid any future litigation or litigations with the said Dr. U. Rama Rao, the first and second

vendors have demarcated 1 ground in the roadside or the ''A'' schedule and decided to sell the remaining portion of 5 grounds and 60 sq.ft. and

thereabouts more fully described in the ''A'' schedule hereunder in undivided shares to the purchaser or their nominees after retaining a portion of

2000 sq.ft., undivided share in the ''A'' schedule which is more fully described in the ''B'' schedule hereunder in order to put up construction of a

total extent of 3000 sq.ft. for the first and second vendors for their residential purposes..........

It is not necessary to extract the remaining portion of that clause. Hence we have omitted the same.

Thus it is beyond doubt that the subject matter of the agreement is only the property which excluded 1 ground plot abutting the main road which

formed the subject matter of the pre-emption clause. Hence there cannot be any injunction restraining the owners of the said plot from making use

of the same in such manner as they like. The injunction now granted by the learned Judge preventing the appellants from putting up constructions

on the said 1 ground of plot, is really against all known principles of law. The appellants, the owners of the said plot of land, can put up

construction or enjoy the said property in accordance with such manner as they choose. Hence O.A. No. 1018 of 1993 filed by the plaintiff is

wholly unsustainable and no order should have been passed thereon in favour of the plaintiff as prayed for by him. Consequently, the appeal

O.S.A. No. 242 of 1994 is allowed. The order passed in O.A. No. 1018 of 1993 on 29.3.1994 is vacated and the said application is dismissed.

The other appeal relates to the injunction against alienation. The contention of the plaintiff that if the property is alienated during the pendency of

the suit, that will cause undue hardship to the plaintiff, is well-founded. No doubt, any alienation may be hit by the doctrine of lis pendens. But the

plaintiff in this case is claiming right of pre-emption and if a third party''s rights are allowed to intervene, that may work out irreparable harm and

cause prejudice to the plaintiffs claim. Hence we are of the view that the injunction granted in O.A. No. 1017 of 1993 restraining the defendants-1

and 2 from alienating 1 ground of plot to the 3rd defendant or any other person, is quite in order and unassailable. Consequently, O.S.A. No. 243

of 1994 is dismissed. The order made in O.A. No. 1017 of 1993 is confinned. The parties will bear their respective costs in these appeals.