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2006 DIGILAW 483 (AP)

M. RAMASWAMY v. GOLLA RANGAMMA

2006-04-05

L.NARASIMHA REDDY

body2006
( 1 ) THE plaintiff in O. S. No. 81 of 2004, on the file of the learned Junior Civil Judge, wanaparthy, isthe petitioner. He filed the suit againstthe respondent herein, for the relief of perpetual injunction, in respect of the suit schedule property. He pleaded that he is the absolute owner and possessor of the suit land and that the respondent herein started interfering with his possession, without any basis. He also filed I. A. No. 225 of 2004, under order 39 Rule 1 C. P. C. , seeking temporary injunction. After issuing notice to the respondent herein, the trial Court allowed I. A. , through order, dated 09-11 -2004. Aggrieved thereby, the respondent filed C. M. A. No. 9 of 2004 in the Court of Senior Civil Judge, wanaparthy. The lowerappellate Courtallowed the C. M. A. on 15-07-2005. Hence, this Civil revision Petition. ( 2 ) SRI V. V. Narasimha Rao, the learned counsel for the petitioner submits that apart from filing the title deed, marked as Ex. P-1, the petitioner had filed pahanies, marked as exs. P-2 and P-3, for the period immediately preceding the filing of the suit. He contends that as late as on 26-07-2004, the Sub-Registrar of the area has certified that the suit property is free from encumbrance and the same was filed as Ex. P-4. The learned counsel points out that the trial Court discussed the matter with reference to the documents as well as the third party affidavits and the lower appellate court reversed the same, without any basis. ( 3 ) SRI N. Sridhar Reddy, the learned counsel for the respondent submits that though the petitioner was the original pattadar of the suit land, he sold the same to Mr. Chandramouli, through sale deed, dated 09-12-1998 and the said Chandramouli, in turn, gifted the land to the daughter of the respondent. He contends thatthe lower appellate Court took into account the fact that Exs. P-2 and P-3 were not issued by an authority vested with the power and therefore, no interference is called for with the orderunder revision. ( 4 ) THERE did not exist any dispute that the petitioner is the owner of the suit schedule property at one point of time. The respondent also recognized this fact, when she filed the sale deed, dated 09-12-1998, marked as ex. R-10. ( 4 ) THERE did not exist any dispute that the petitioner is the owner of the suit schedule property at one point of time. The respondent also recognized this fact, when she filed the sale deed, dated 09-12-1998, marked as ex. R-10. The sale deed is said to have been executed by the petitioner in favour of his brother-Mr. Chandramouli. Despite the sale, the petitioner was issued a title deed by the concerned revenue authorities. Therefore, the plea of the petitioner that subsequent to the sale, dated 09-12-1998, the property was acquired by him needs to be examined, atthe stage of trial. In an application filed under order 39 Rule 1 C. P. C. ,the importantaspects that need to be taken into account are as to whether the person, who filed it, has proved his prima facie case of possession over the property and as to whether there exists any balance of convenience for granting the order of temporary injunction. ( 5 ) EX. P-1, is a title deed and it would not be of much use in such matters. Exs. P-2 and p-3 are pahanies for the years 2002-03 and 2003-04. If believed, they depict the state of affairs obtaining as on the date of filing of the suit. The trial Court took the same intoaccount, whereas the lower appellate Court disbelieved them, on the ground that they were issued by the Panchayat Secretary. ( 6 ) EVEN assuming that the Panchayat secretary was not competent to issue the pahanies, the evidentiary value of those documents can be ignored, if only the respondent came forward with any better or more reliable documents. On her part, the respondent filed pahanies up to the year 1996-97. She herself is not sure as to who was in possession of the property subsequent to 1996-97. ( 7 ) IT is true that the petitioner must make out a case for grant of injunction and in the context of the facts discussed above, it can safely be said thatthe petitionerhad discharged his basic burden. However, while weighing the prosand consof the matter, the case presented by the respondent in the application filed under Order 39 Rule 1 C. P. C. assumes its own significance. However, while weighing the prosand consof the matter, the case presented by the respondent in the application filed under Order 39 Rule 1 C. P. C. assumes its own significance. It hardly needs any emphasis that the Court is bound to undertake comparative assessment of the cases put forward by the petitioner, on the one hand, and the respondent, on the other, duly recognizing the principle that the basic burden must be discharged by the petitioner. In the instant case, the respondent does not plead any right vis-a-vis the suit schedule property in herself. The suit schedule property is said to have been gifted by Mr. Chandramouli in favour of the daughter of the respondent. The gift deed is not registered. Be that as it may, though the gift is said to have been made in the year 2002, no entry was made in any revenue record in her favour. In that view of the matter, the lower appellate Court was not justified in reversing the order passed by the trial Court. ( 8 ) HENCE, the Civil Petition is allowed and the order under revision is set aside. The order of temporary injunction granted by the trial court in I ANo. 225 of 2004 shall hold good, till the disposal of the suit. The trial Court is directed to expedite the disposal of the suit, uninfluenced by any observations made by it while disposing of the I. A. or made by this court in this order. There shall be no order as to costs.