P.Kumar v. Smt. M.Kamala Bai

The defendant in O.S.No.239 of 2009 on the file of the Court of the Additional Junior Civil Judge-cum-XVIII Metropolitan Magistrate, Cyberabad at Malkajgiri filed this revision petition aggrieved by the order dated 09.08.2011 in CMA.No.11 of 2010 on the file of the Court of the VIII Additional District and Sessions Judge (FTC), L.B.Nagar, Ranga Reddy District. The respondent herein/plaintiff filed O.S.No.239 of 2009 against the defendant/revision petitioner for perpetual injunction restraining the defendant from interfering with peaceful possession and enjoyment of the suit schedule property. Along with the suit, plaintiff also filed I.A.No.692 of 2009 for temporary injunction under Order XXXIX Rules 1 and 2 C.P.C. However, the trial Court dismissed the application by order dated 09.12.2009. Challenging the said order, the plaintiff filed CMA.No.11 of 2010, and the same was allowed by the learned VIII Additional District & Sessions Judge, L.B.Nagar, R.R.district by order dated 09.08.2011, thereby setting aside the order of the trial Court and granting temporary injunction in favour of the plaintiff. Hence, the present revision petition by the defendant. I have heard the learned counsel for both the parties and perused the material available on record. The suit schedule property has been described as 248 square yards of house plot bearing No.24-84/26 situated at Lothkunta, Alwal Gram Panchayat, R.R. District. The plaintiff claims to have purchased the said plot from one I.Damayanthi under a registered sale deed dated 13.02.1991. It is stated that the plaintiff’s vendor had purchased the said property from one Smt. P.Reni under a registered sale deed dated 27.03.1985. It is claimed that the plaintiff constructed a compound wall around the suit schedule plot and also dug a bore well. Alleging that while she was proposing to construct a building in the said plot, on 26.05.2009 and 31.05.2009 the defendant who is none other than the plaintiff’s vendor’s vendor had attempted to interfere with her possession, the main suit was filed seeking a decree for perpetual injunction and pending the suit, temporary injunction was sought under order XXXI Rules 1 and 2 C.P.C. The defendant filed a counter denying the ownership and possession claimed by the plaintiff. It was contended that the defendant and other coparceners were the joint owners of large extent of land situated in Sy.Nos.280, 281, 282 and 283 of Lothkunta, Alwal Gram Panchayat, R.R. District and that O.S.No.259 of 2009 on the file of the Court of the III Additional District Judge, City Civil Court, Secunderabad filed for partition of the joint family property, to which the plaintiff’s vendor’s vendor was also a party, was decreed holding that the plaintiff and the defendants therein are entitled to 1/11th share each. Against the said preliminary decree for partition, an appeal is pending before this Court and passing of final decree has been stayed. Thus it was contended that the sale deed executed by Smt.P.Reni in respect of undivided joint family property was null and void and thus the petitioner did not acquire any right or title. Whereas the plaintiff filed Exs.P-1 and P-7 documents to substantiate her title and possession in respect of the suit property, Exs.R-1 to R-3 documents were filed by the defendant in support of his case. After hearing both the parties, the trial Court dismissed the petition for temporary injunction holding that no prima facie case could be made out to show that the plaintiff was in possession and enjoyment of the plaint schedule property as on the date of filing of the application. However, in the light of Exs.P.4 and P.5 which revealed that the suit schedule plot forms part of the land in Sy.No.281 and the recitals in Ex.P.1 sale deed that the possession of the suit schedule plot was delivered to the plaintiff on the date of sale deed as well as Ex.P.6 which shows that power connection was also given to the suit plot, the lower Appellate Court opined that there was prima facie evidence to establish the plaintiff’s title and possession in respect of the suit schedule property. Thus, the lower Appellate Court while setting aside the order of the trial Court granted, temporary injunction in favour of the plaintiff. It is not disputed before this Court that the plaintiff’s vendor’s vendor Smt.P.Reni is the sister of the defendant. The fact that she executed Ex.P-2 sale deed in favour of the plaintiff’s vendor is also not in dispute. However it is vehemently contended by the learned counsel for the revision petitioner / defendant that Smt.P.Reni being a member of the Hindu Joint Family was not competent to alienate any part of the undivided Hindu joint family property and thus Exs.P-1 & P- 2 sale deeds being void, the plaintiff did not acquire any title. At the outset, it is to be noticed that no proceedings have been initiated till today either by the defendant or any other coparcener for cancellation of the registered sale deed executed by Smt. P.Reni in spite of the fact that the said sale deed was executed long back in the year 1991. Though it is a fact that the sale deed in favour of the plaintiff did not contain the survey number, as rightly found by the lower appellate Court, the plaintiff could establish that the said property forms part of the land in Sy.No.281 by producing Exs.P4 and P.5. In the light of the documents produced by the plaintiff, the Court below was justified in holding that a prima facie case was made out to show the title and possession of the plaintiff in respect of the suit schedule property. I do not find any justifiable reason to interfere with such a finding of fact recorded by the lower appellate Court on appreciation of the material available on record. In the light of the said finding, it is necessary to protect the plaintiff’s possession till the suit is decided on merits and therefore, the temporary injunction granted by lower appellate Court cannot be held to be erroneous on any ground whatsoever. However, the learned counsel for the revision petitioner while submitting that taking advantage of the temporary injunction granted by the lower appellate Court, the plaintiff has been proceeding to raise a building in the suit plot, vehemently contended that if the plaintiff is allowed to proceed with such construction, it would result in altering the nature of the suit property. In the totality of the facts and circumstances noticed above, particularly since a prima facie case has been made out by the plaintiff and the balance of convenience is in her favour, though I am not inclined to disturb the order under revision, it is made clear that the temporary injunction granted by the lower appellate Court shall continue to be in operation subject to the condition that an undertaking is filed by the plaintiff in the trial Court that she will not claim any equities in case of dismissal of the main suit. Such an undertaking shall be filed within a period of one week from today. Subject to the above, the Civil Revision Petition is dismissed. No costs. Date: 04.11.2011 Note: Issue C.C. by tomorrow. B/o KLP ______________ G. ROHINI, J