Konakalla Jacob Raju v. Axene Evangelical Mission, Tadepalligudem

Order

This Civil Revision Petition under Article 227 of the Constitution of India is filed aggrieved by the order dated 1.7.2011 passed in C.M.A.No. 8 of 2010 on the file of the learned Senior Civil Judge, Tadepalligudem, West Godavari District, granting interim injunction by setting aside the order dated 29.9.2010 passed in I.A.No. 1342 of 2009 in O.S.No. 223 of 2009 on the file learned Principal Junior Civil Judge, Tadepalligudem, West Godavari District.

Briefly stated the facts of the case are that: the respondent-Mission represented by its Chairman Konakalla Sudarshana Rao, who is the plaintiff, filed the suit in O.S.No. 223 of 2009 on the file of the learned Principal Junior Civil Judge, Tadepalligudem seeking perpetual injunction. It is the plea of the respondent that it is the absolute owner of the suit schedule property ad measuring an extent of Ac.0.40 cents in R.S. No. 585 of Nallajerla Village having purchased the same through the registered sale deeds dated 28.11.1975 and

29.9.1978 from one Kothapalli Sattemma; and that after purchase of the same, respondent-Mission constructed a church and also a pastor quarter for pastors; and that on 16.4.1980 the respondent-Mission was registered under the A.P. Societies Registration Act, and as per the amended bye-laws in the years 1992 and 1994 the present Chairman of respondent-Mission became the life time chairman; and that the father of the first revision petitioner was appointed as a Pastor and after his death, the first revision petitioner was appointed as a Pastor of the church; and that by virtue of the resolution passed on

7.1.2009 to construct a new church by removing old church and while the said construction is in progress, the request of the first revision petitioner to appoint him as a Pastor for the new church was refused and that the first revision petitioner having bore grudge against the Chairman respondent-Mission causes obstructions by one way or the other. Hence, the respondent-Mission filed the aforesaid suit for perpetual injunction and sought for a temporary injunction therein. The revision petitioners, who are the defendants in the said suit, filed their written statement. It is stated that the then Chairman of the respondent-Mission, Konakalla Sudarshan Rao, who is the brother of the father of the first revsion petitioner, played a fraud on the father of the first revision petitioner and purchased the suit schedule property the name of respondent-Mission in order to get construction of church and that the deceased father of the first revision petitioner constructed the church in the suit property with his own funds as he was in exclusive possession and enjoyment of the same; and that after the demise of his father, the first revision petitioner has been continuing as a Pastor and that after submission of the resignation by the said Sudarshan Rao as the Chairman of the respondent-Mission, one M.Vijaya Ratnam was appointed as the Chairman on 3.11.1998 and thereafter M.Nanda Kishore was appointed as the Chairman and the said K. Sudarshan Rao executed a Gift Settlement Deed dated 13.2.2009 in favour of his son in respect of the suit schedule property. He further stated that the said Sudharshan Rao was neither in possession nor had he title thereof at the time of filing the suit. The application in I.A.No. 1342 of 2009 filed by the respondent-Mission for grant of temporary injunction was resisted by the revision petitioners/defendants by filing their common counter affidavit. The Court below through its order dated 29.9.2010 dismissed the same. The appeal in CMA.No. 8 of 2010 filed by the respondent-Mission against the dismissal order dated

29.9.2010 was allowed by the lower appellate Court by the order under revision. The learned Counsel for the revision petitioners while reiterating the averments made in the written statement filed in the suit submitted that Konakalla Sudarshana Rao has no right to execute a gift settlement deed on 13.2.2009 in favour of his son in as much as the suit schedule property is a Mission property. He submitted that the suit filed on 30.6.2009 by the said Sudarshan Rao for perpetual injunction after execution of the settlement deed in favour of his son alleging himself as the Chairman of the Mission is not maintainable. He submitted that the respondent-Mission failed to prove possession over the schedule property which is a indispensable requisite for grant of temporary injunction. On the other hand, the learned Counsel for the respondent-Mission supported the order under revision. It is the case of the respondent-Mission that respondent purchased the suit property under registered sale deed dated 28.11.1975 and since then he is in possession and enjoyment of the same. He further submitted that the subject suit was filed on behalf of the Mission. Perused the case file. It is well settled principle of law that temporary injunction sought by the parties could be granted if they satisfy the three well-established principles, namely, (1) making out a prima facie case, (2) showing balance of convenience in their favour, and (3) on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether respondent/plaintiff has a triable case. Before invoking the jurisdiction of the Court seeking temporary injunction the respondent/plaintiff would be bound to show that he had a legal right and that there was an invasion of that right. If we consider the case on hand on touchstone of the aforesaid well settled principle of law, it may be noticed case of respondent/plaintiff is that it had purchased the suit schedule land under Ex.P.1-registered sale deed dated

28.11.1975 and since then the respondent/plaintiff has been in possession and enjoyment of the same. Further it is to be seen that Ex.P.8, dated 27.1.2009 attested copy of certificate issued by the District Registrar, West Godavari District shows that Chairman of the respondent-Mission is Konakalla Sudarshana Rao and the subject suit was filed on 30.6.2009 in the capacity of the Chairman of the respondent-Mission. The revision petitioners/defendants got marked Exs.R.1 to R.20, to prove their possession over the suit property. However, in the light of Exs.P.1 to P3 coupled with Ex.P.8, the respondent-Mission is able to show prima facie that it has right and is in possession of the suit property. But the revision petitioners could not produce better proof to establish title than the respondent- Mission. As such, the first petitioner/defendants failed to show prima facie that his legal right is infringed by grant of temporary injunction. Facts and circumstances, on the contrary, show that the respondent/plaintiff had established prima facie his legal right for grant of temporary injunction. The lower appellate Court rightly considered these aspects in the proper perspective and granted a temporary injunction by setting aside the order of the trial Court. Further, both the parties have levelled several allegations against each other. However, it is to be seen that the other submissions put forth by the petitioners as well as the respondent cannot be gone into at this stage. Keeping in mind that the very suit is pending adjudication before the Court below, it is open to them to put-forth all these arguments before the Court below when the suit reaches the stage of arguments. Viewed thus, I dot not see any illegality or infirmity in the order under revision warranting interference in this revision petition. The Civil Revision Petition is therefore dismissed. There shall be no order as to costs. -------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 22nd December, 2011. Msnro