K. M. Pratap vs K. M. Gourish

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. Signature Not Verified

1000 of 2014 on the file of the XVI Additional Digitally signed by JAYANT KUMAR ARORA Date: 2017.01.25 15:41:44 IST Reason:

District & Sessions Judge, Malkajgiri, Ranga Reddy

District, Telangana.

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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 3

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 4

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.

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ITEM NO.56 COURT NO.7 SECTION XIIA

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 33484/2016

(Arising out of impugned final judgment and order dated 12/09/2016 in CMA No. 559/2015 passed by the High Court Of Judicature At Hyderabad For The State Of Telangana And The State Of Andhra Pradesh)

K. M. PRATAP Petitioner(s)

VERSUS

K. M. GOURISH AND ANR Respondent(s) (with appln. (s) for permission to file addl. documents and interim relief and office report)

Date : 20/01/2017 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE A.M. KHANWILKAR

For Petitioner(s) Mr. Guru Krishna Kumar, Sr. Adv.

Mr. M. Srinivas R. Rao, Adv.

Mr. G. Raghupathi Reddy, Adv.

Mr. Abid Ali Beeran, Adv.

Mr. Arun Devdas, Adv.

Mrs. Sudha Gupta, Adv.

For Respondent(s) Mr. B. Adinarayana Rao, Sr. Adv.

Mr. Gaddam Srinivas, Adv.

Ms. Tatini Basu, Adv.

UPON hearing counsel the Court made the following O R D E R

Leave granted.

The appeal is disposed of in terms of the signed

non-reportable Judgment

Pending interlocutory applications, if any, stand disposed

of.

(Jayant Kumar Arora) (Renu Diwan) Court Master Assistant Registrar

(Signed non-reportable Judgment is placed on the file)