K. M. PRATAP Vs. K. M. GOURISH AND ANR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 749 of 2017, Judgment Date: Jan 20, 2017

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 749 OF 2017
              [@ SPECIAL LEAVE PETITION (C) NO. 33484 OF 2016 ]


K. M. PRATAP                                                    Apepllant(s)

                                VERSUS

K. M. GOURISH AND ANR                                          Respondent(s)

                               J U D G M E N T

KURIAN, J.
1.    Leave granted.

2.    The appellant is before this Court  aggrieved  by  the  interim  order
dated 12.09.2016 in Civil Misc. Appeal No. 559 of 2015 passed  by  the  High
Court of judicature at Hyderabad for the State of Telangana  and  the  State
of  Andhra  Pradesh,  permitting  the  respondents  to  proceed   with   the
construction of the premises in question.

3.     It  is  the  apprehension  of  the  appellant  that   in   case   the
construction, as  proposed  by  the  respondents,  is  permitted,  it  would
complicate the whole dispute, which is the subject matter  of  O.S.No.  1000
of 2014 on the file  of  the  XVI  Additional  District  &  Sessions  Judge,
Malkajgiri, Ranga Reddy District, Telangana.
4.     The  High  Court,  taking  note  of  the  undertaking  given  by  the
respondents that in case ultimately it is held that  the  disputed  property
does not fall to the share of the  respondents,  they  will  not  claim  any
equity in respect of the  construction  already  made  and  that  they  will
demolish the construction on their own costs  and  that  they  will  not  be
doing any alienation  without  permission  from  the  Court,  permitted  the
construction to proceed with.

5.    When the matter came up before this Court on  25.11.2016,  this  Court
passed the following order :-

“Learned counsel for the petitioner submits that since the property  is  yet
to  be  divided  by  meets  and  bounds,  in  case  the  respondents   start
construction in the meanwhile, it  will  only  create  an  obstacle  to  the
proceedings in the partition.  Therefore, unless the property is  demarcated
and allotted to their shares, the respondents cannot be permitted  to  carry
out the construction in the property.
            It appears that while passing the interim order the  High  Court
has not taken note of this aspect.
            In view of the above, issue notice, returnable on 04.01.2017.
            There shall be stay of operation of the  impugned  order  passed
by the High Court, till the next date of hearing.”

6.    Subsequently, it is brought to the  notice  of  this  Court  that  the
disputed construction undertaken by the respondents is half way through  and
it is actually meant to be used as an educational institution.

7.    Having extensively  heard  Mr.  Guru  Krishna  Kumar,  learned  senior
counsel appearing for the appellant and  Mr.  B.  Adinarayana  Rao,  learned
senior counsel appearing for the respondents, we are of the  view  that  the
interest of both the parties can  be  protected  by  issuing  the  following
clarifications :-
(a)   The respondents shall not create any third party rights in respect  of
the construction now being undertaken without express  permission  from  the
Trial Court.
(b)   The building shall not  be  used  for  any  purpose,  even  after  the
completion, without express permission from the Trial Court.
(c)   In case it is ultimately found that the property does  not  belong  to
the share of the respondents, the  respondents  shall  not  be  entitled  to
claim any equity in respect of the construction, which  is  now  being  made
and that they will remove the entire construction at their own costs.
Ordered accordingly.

8.    Subject to the above conditions, the  interim  order  passed  by  this
Court on 25.11.2016 is vacated, permitting the respondents to  proceed  with
the construction.

9.    We are informed that the trial has already commenced.   Therefore,  we
request both the parties to cooperate for the expeditious  disposal  of  the
suit before the Trial Court.

10.   With the above observations and directions,  the  appeal  is  disposed
of.
      No costs.
                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                        [ A. M. KHANWILKAR ]

      New Delhi;
      January 20, 2017.