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2003 DIGILAW 261 (ORI)

Ganta Lingaraju Reddy v. Tapakula Narasimhulu

2003-03-28

P.K.TRIPATHY

body2003
ORDER 28.3.2003 — Heard. 2. This Civil Revision is directed against the judgment passed by learned District Judge, Ganjam Gajapati, Berhampur on 4.5.2002 in Misc. Appeal No. 34 of 2001. Plaintiff are the peti¬tioners in this Revision. 3. The plaintiff filed Title Suit No. 203 of 2001 in the Court of Civil Judge (Jr. Division), Berhampur, inter alia, praying for permanent injunction as against the defendants with respect to the subject matter of dispute which comprises of a residential house and cultivable land as per the plaintiff sched¬ule. The substance of the plea advanced by the plaintiff is that the last owner of the disputed property. T. Gunnamma being the aunt of plaintiff No.1 (being her mother’s sister), she executed a will on 9.6.1986 bequeathing the suit property in favour of plaintiff No. 1. T. Gunnamma died on 6.7.1988 and thereafter he succeeded to the property on the basis of that will. He has alleged that the defendants have made attempt to interfere with his possession and to create dispute on his title over that property. He also stated that plaintiff No. 2 is a tenant under him. Thus, he filed the suit with the aforesaid relief. 4. The case pleaded by Defendant No.2 is that he and Defendant No. 3 are sons of T. Kalia and said T. Kalia is the agnetic brother of T. Babaji, the husband of the above named T. Gunnamma. According to Defendant No. 2, T. Gunnamma executed another registered document on 31.3.1987 cancelling the will executed in favour of the plaintiff No. 1 and Gunnamma had the desire that son of Defendant No. 2 shall perform the obsequies after her death. He has pleaded that in the line of natural succession under the Hindu Law he has succeeded to the property along with other co-shares after death of Gunnamma and therefore the claim of right, title, interest and possession by the plain¬tiff is a myth. 5. Along with the plaint plaintiff No. 1 filed an applica¬tion for temporary injunction under Order 39 Rules 1 and 2, CPC. That was registered as MJC No. 115 of 2001. Learned Civil Judge (Jr.Division), Berhampur taking into consideration the will executed in favour of plaintiff No. 1 allowed the prayer for temporary injunction as against the defendants. Defendant No. 2 preferred the above noted appeal before the District Judge. That was registered as MJC No. 115 of 2001. Learned Civil Judge (Jr.Division), Berhampur taking into consideration the will executed in favour of plaintiff No. 1 allowed the prayer for temporary injunction as against the defendants. Defendant No. 2 preferred the above noted appeal before the District Judge. Learned District Judge vide the impugned judgment has set aside the order passed by learned Civil Judge (Jr. Division) and in consequence vacated the order of temporary injunction. Learned District Judge has recorded the finding that learned Civil Judge (Jr. Division) while considering the prayer for temporary injunc¬tion did not consider the respective pleas advanced by both the parties and the relevant document produced by both the parties and passed the impugned order only on the basis of the will relied on by the plaintiff No. 1. He found that cancellation of the will, absence of description of assessment number of the disputed house and non-giving actual extent of the cultivable land left by Gunnamma as the reasons to record a finding that plaintiff No. 1 has no fair idea about the property and therefore he may not be in possession of the same. Accordingly, the Court below did not find that balance of convience in favour of plain¬tiff No.1 and set aside the order of temporary injunction. It be noted here that learned District Judge has recorded that from the aforesaid facts and circumstances he did not find a prima facie case in favour of the plaintiffs. It is agreed and understood by the parties that the aforesaid finding is confined to balance of convenience and not relating to existence of prima facie case. This Court finds that keeping in view the dispute in question and the pleadings of the parties a controversy which has been raised needs proper adjudication and therefore a prima facie case is available in favour of the plaintiff. 6. The discussion made by the District Judge and the conclusion arrived at by him relating to absence of balance of convenience in favour of the plaintiff is not found to be illegal and therefore while exercising the jurisdiction under Sec. 115, CPC, this Court is not inclined to interfere with the impugned judgment. Accordingly, the Civil Revision stands dismissed. 7. Learned counsel for the petitioners proposes that direction may be given to the trial Court for early disposal of the suit. Accordingly, the Civil Revision stands dismissed. 7. Learned counsel for the petitioners proposes that direction may be given to the trial Court for early disposal of the suit. Learned counsel for the contesting defendant/opposite parties has no objection to that submission. Mr. Ramdas, learned Sr. Counsel appearing for the said defendants also states that written statement has already been filed by Defendant No. 2. In view of such submission, it will be appropriate for learned Civil Judge (Jr. Division), Berhampur to take up the suit for hearing and to dispose of the same as far as practicable within a period of six months from the date of receipt of a copy of this order. Since the parties have suggested for early disposal of the suit liberal adjournment to them should be scrupulously avoided. Revision dismissed.