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2007 DIGILAW 1095 (AP)

M. Balaraj Goud v. Pandiri Jyothi

2007-11-07

L.NARASIMHA REDDY

body2007
JUDGMENT 1. The respondent filed O.S.No.2 of 2007 in the Court of the Senior Civil Judge, Kamareddy against the appellants, for the relief of perpetual injunction in respect of Ac.0.17 guntas of land in sub-divisions of survey No.133 of Elichipur Shivar, Kamareddy . She also filed I.A.No.6 of 2007 under Order 39 Rules 1 and 2 C.P.C. She pleaded that the suit schedule property was purchased by her under a registered sale deed, dated 16.12.2000, from one Smt.Kurma Sayavva and that ever since then, she is in possession and enjoyment of the property. She also referred to the pahanies and pattadar passbook issued to her. 2. On behalf of the appellants, it was pleaded that the first appellant purchased an extent of Ac.1.10 guntas of land from the same vendor way back on 23.01.1981 and subsequently, the said vendor sold away her balance of land to different persons in the year 1984 itself. It was urged that after 1984, Smt.Sayavva did not have any land in Sy.No.133. 3. Through its order, dated 28.02.2007, the trial Court disposed of the I.A., by directing the parties to maintain status quo. The same is challenged in this appeal. 4. Sri V.Jithender Rao, the learned counsel for the appellants submits that when the trial Court itself recorded a finding to the effect that the respondent failed to prove her possession over the suit schedule property and that no explanation worth its name is forthcoming as to why she did not file the sale deed, there was no basis for ordering status quo. He contends that his clients have placed sufficient material to show that they are in possession of the property. 6. Sri V.L.N.Sharma, the learned counsel for the respondent, on the other hand, submits that the observations made by the trial Court are only in the context of disposing of the I.A. and since it found some force in the case of the respondent, the order of status quo was granted. He submits that any relief, granted to the appellants, at this stage, would defeat the very cause in the suit. The trial Court was dealing with an application filed under Order 39 Rules 1 and 2 C.P.C. The parameters for deciding such applications are well-settled. The party claiming temporary injunction must prove prima facie case and balance of convenience. He submits that any relief, granted to the appellants, at this stage, would defeat the very cause in the suit. The trial Court was dealing with an application filed under Order 39 Rules 1 and 2 C.P.C. The parameters for deciding such applications are well-settled. The party claiming temporary injunction must prove prima facie case and balance of convenience. Whenever the temporary injunction is claimed to protect the possession, at least prima facie, a finding must be recorded to the effect that the petitioner therein is in possession of the property. Apart from that, the Court is also required to assess the balance of convenience and grant injunction, if only the same is in favour of the petitioner. 7. In the instant case, the trial Court had undertaken extensive discussion with reference to the documents filed by the respondent as well as the appellants. It summed up its observations as under: "In the circumstances, it is too early to decide as to whether the petitioner is in possession over the suit land pursuant to execution of sale deed by her vendor. It is also not possible to draw on the basis of said document relied on by the parties without oral evidence whether the vendor of the petitioner has no land on the date of execution of sale deed dated 16.12.2000 in favour of the petitioner. The petitioner also not fairly explained, how the sale deed was mis-placed. In the circumstances, no inference can be drawn on the basis of patta passbook and CC of pahanies relied on by the parties as to the possession and enjoyment of the parties as on the date of the suit without parties let in oral evidence and subjected them to cross- examination. It is also not proper to reply upon the entries in the pahanies in the absence of examining the person who made such entries and sources of information. The whole discrepancy in the matter arose only with regard to the allotment of sub-division number to the suit disputed survey number. It is too early to draw any inference as to who is in actual possession over the suit land and its extent. It is a settled preposition of law that the entries in pahanies cannot create any title in favour of a person." 8. It is too early to draw any inference as to who is in actual possession over the suit land and its extent. It is a settled preposition of law that the entries in pahanies cannot create any title in favour of a person." 8. From these observations, it cannot be discerned that there existed any prima facie case in favour of the respondent, much less balance of convenience. The absence of definite findings on those aspects must invariably result in dismissal of the application. Granting of order of status quo would lead to more complications between the parties than what existed before the suit came to be filed. The record discloses that the first appellant purchased a vast extent of Ac.1.10 guntas more than quarter of century ago. The respondent is a recent entrant into the arena. Therefore, there does not exist any basis to curtail the rights of the appellants. 9. It is represented that the appellants have obtained permission from the Gram Panchayat for construction of a shed, which is temporary in nature. 10. Having regard to the facts and circumstances of the case, the C.M.A. is allowed and the order under the appeal is set aside. It is, however, directed that the appellants shall be entitled to put only a temporary shed and not any permanent structure. This also shall be subject to the outcome of the suit and such a construction, by, itself, shall not be pleaded or treated as a fact in the matter of determining as to who among the parties are in possession as on the date of filing of the suit. The trial Court shall endeavour to dispose of the suit, as early as possible, uninfluenced by any observations made in the order in the I.A. or by this Court in the C.M.A. There shall be no order as to costs.