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.