B.V.Srinivasa Rao & Ors. v. B.K.Ramakrishna & Ors.

(Per Hon’ble Sri Justice A.Gopal Reddy) When the vacate stay petition is taken up for hearing, both the counsel argued the main appeal itself. This appeal is directed by the plaintiffs against the orders of III Senior Civil Judge, City Civil Court, Secunderabad I.A.No.2069 of 2008 in O.S.No.582 of 2008, dated 16.2.2009 whereby the petition filed by the plaintiffs-appellants under Order XXXIX Rules 1 and 2 C.P.C. seeking temporary injunction restraining the respondents from dispossessing the plaintiffs from the suit schedule property has been dismissed. As rightly contended by the learned counsel for the appellants, the lower Court disposed of the impugned I.A., which is seriously contested by the parties, in narrow compass without recording any finding as to who is in possession of the suit schedule property except stating that even if the petitioners (appellants) are in possession of the suit schedule property, they are not entitled to seek any injunction against the co-owners.

Admittedly, the mother-in-law of 1st appellant who is 11th respondent herein suffered a decree for permanent injunction in O.S.No.1012 of 1973 on the file of X Assistant Judge, City Civil Court, Hyderabad filed by the plaintiffs therein who are the daughters of Janakamma-3rd wife of Kondal Raidu. The said decree was reversed in A.S.No.1 of 1993, but was restored in S.A.No.649 of 1997 by this Court and the Special Leave Petition filed against the Second Appeal was also dismissed by the Supreme Court on 11.8.2008. When the Execution Petition is filed, the present suit came to be filed for partition. Contesting the impugned I.A., a detailed counter affidavit has been filed by the respondent No.1 which was adopted by respondents 2 and 3, stating that B.K.Vittal Rao, the father of the plaintiffs-appellants herein never resided in the suit schedule house and was never in possession and the claim of mother-in-law of 1st appellant has been rejected and she never asserted that the 1st appellant, who is husband of 13th respondent in the lower Court was in possession of the property, and that only to stall the execution proceedings, the above suit was filed at the instance of 11th respondent.

The lower Court by the impugned order simply dismissed the I.A. without giving any finding with regard to the issues viz. whether the earlier decree obtained by the respondents binds on the appellants-plaintiffs or not; and whether the appellants- plaintiffs are in possession of the suit schedule property as on the date of filing of the suit and they are entitled to maintain their possession by way of injunction. Under those circumstances, the impugned order, dated

16.2.2009 is set aside and the matter is remitted to the lower Court to pass a detailed order keeping in view the three cardinal principles for grant of injunction, after giving due opportunity to both the parties. The Civil Miscellaneous Appeal is accordingly disposed of. No order as to costs. _______________ A. GOPAL REDDY, J. B.CHANDRA KUMAR, J. OCTOBER 05, 2009 Tsr. __________________