ORDER : Assailing the order dated 21.11.2023 in CMA No.42/2022 passed by learned XII Additional District Judge, Visakhapatnam allowing the CMA filed by the plaintiffs and granting temporary injunction in favour of plaintiffs by setting aside the order dated 28.07.2022 in I.A.No.74/2021 in O.S.No.491/2021 passed by learned I Additional Junior Civil Judge, Visakhapatnam, the defendants filed the instant C.R.P. 2. The parties for convenience are referred to as they stood in O.S.No.491/2021. 3. The matrix of the case is thus: (a) The plaintiff Nos.1 and 2 in O.S.No.491/2021 are mother and son. The defendants 1 to 4 are the brothers of 1st plaintiff. Plaintiffs sought for permanent injunction against the defendants in respect of petition schedule property situated at Visakhapatnam which is ground floor constructed in an extent of 522 Sq. Yds. The plaintiffs’ case is that, the 1st plaintiff and defendants are the children of Inala Bapanaiah who worked as Additional Superintendent of Police in CBI at Visakhapatnam and retired in the year 1985. He expired on 20.08.2016 and his wife Narayanamma and also passed away on 20.06.2020. Bapanaiah was the absolute owner of vacant site in an extent of 522 Sq. Yds. purchased under sale deed bearing document No.12131/1983, dt.12.10.1983. Himself and 1st plaintiff have constructed ground floor, first floor and shop-rooms in the ground floor in the said vacant site. Bapanaiah was paying tax during his lifetime. After retirement, Bapanaiah lived along with his wife in the plaint schedule property. His sons i.e., defendants did not take care of their parents and the relationship between the defendants and their parents was never smooth. The 1st plaintiff was taking great care of her parents and looked after their needs. The plaintiffs stayed in the petition schedule property from 1988 to 2000 and then shifted to Lawson’s Bay Colony and stayed there from 2000 to 2014. Again in 2014 the plaintiffs shifted to the plaint schedule property. While so, Bapanaiah executed a registered gift deed bearing document No.4063/2016, dt.14.06.2016 in favour of the 1st plaintiff whereunder entire plaint schedule property comprising ground, first floor, terrace and shop-rooms in the ground floor was conveyed in favour of the 1st plaintiff out of love and affection. The 1st plaintiff acted upon the said gift deed and from then the 1st plaintiff became the absolute owner of the property covered by the gift deed. The 1st plaintiff acted upon the said gift deed and from then the 1st plaintiff became the absolute owner of the property covered by the gift deed. The plaint schedule property which is ground floor is the part of gift property. (b) While so, after one month of execution of the gift deed the health condition of Bapanaiah deteriorated and he was diagnosed with Alzheimer’s disease which degenerated the brain condition. His wife’s condition was also deteriorated. Both of them were admitted in the hospitals, subsequently they passed away as stated supra. After death of Bapanaiah, the 1st defendant acting as GPA holder on behalf of his mother got filed O.S.No.495/2016 on the file of VII Additional District Judge, Visakhapatnam for cancellation of the gift deed dt.14.06.2016 with all false averments. The GPA was obtained from Narayanamma while she was bed ridden and not in a conscious state. The defendants have fabricated an unregistered will dated 10.08.2016 alleging that it was executed by their father Bapanaiah, wherein the gift deed was cancelled. The defendants thus started claiming right over the plaint schedule property by virtue of the unregistered will. The said will is a fabricated document. By the date of the alleged will, Bapanaiah was suffering with Alzheimer’s disease and he could not have executed the said will. The defendants harassed the 1st plaintiff and her husband by giving a false complaint dated 08.08.2016 in MVP Police Station through their father Bapanaiah and police after enquiry found the allegations were false and issued a final report. Not satisfied, the defendants filed O.S.No.762/2020 on the file of I Additional Junior Civil Judge, Visakhapatnam against the plaintiffs and 1st plaintiff’s husband for permanent injunction in respect of plaint schedule property and they have also filed I.A.No.98/2020 for ad-interim injunction. The said petition was dismissed after enquiry on 15.03.2021 on the ground that the defendants herein were never in settled possession of the plaint schedule property. In spite of the said orders, the defendants are making illegal attempts in interfering with the plaintiffs’ peaceful possession and enjoyment of the plaint schedule property. Hence, the 1st plaintiff lodged a report dated 27.03.2021 before MVP Police Station against the defendants. However, the said report was not admitted by the police on that ground that it is a civil litigation. Hence, the suit. 4. Hence, the 1st plaintiff lodged a report dated 27.03.2021 before MVP Police Station against the defendants. However, the said report was not admitted by the police on that ground that it is a civil litigation. Hence, the suit. 4. The defendants 1 and 4 filed written statement and while opposing the plaint averments, inter alia contended thus: (a) The gift deed dated 14.06.2016 as averred by the plaintiff is false. They pleaded that their mother Narayanamma already filed O.S.No.495/2016 on the file of VII Additional District Judge, Visakhapatnam for cancellation of the gift deed as it was obtained by the 1st plaintiff from her father by applying fraud and misrepresentation. Their mother also sought for permanent injunction restraining the 1st plaintiff herein from creating any charge or third party interest in respect of the said schedule property basing on the said gift deed. She also prayed for permanent injunction restraining the 1st plaintiff herein from interfering with peaceful possession and enjoyment of the ground floor and first floor building. From the pleadings and reliefs prayed for in the said suit, it is clear that later Narayanamma was in physical possession and enjoyment of the entire gift mentioned property along with defendants. (b) It is further pleaded that the defendants filed O.S.No.762/2020 before the I Additional Junior Civil Judge, Visakhapatnam seeking perpetual injunction in respect of the plaint schedule property and the same is pending. I.A.No.98/2020 filed by them was dismissed and later the defendants filed CMA No.22/2021 before the Court of II Additional District Judge, Visakhapatnam and the same is pending. The defendants denied the plaint averments that the building was constructed with the help of 1st plaintiff. They also denied the plaint averments that the defendants have not taken care of their parents. The defendants used to visit their parents frequently and stayed with them for few days to look after their welfare. The 1st defendant stayed with his parents in the schedule property which was constructed in the year 1989. For construction of the building, the 1st defendant who was working in SBI got transferred from Mahabubnagar to Visakhapatnam. So the 1st defendant was physically present at the time of completion of construction of the schedule house. The 1st defendant stayed with his parents in the schedule property which was constructed in the year 1989. For construction of the building, the 1st defendant who was working in SBI got transferred from Mahabubnagar to Visakhapatnam. So the 1st defendant was physically present at the time of completion of construction of the schedule house. Then he was transferred to Amudalavalasa of Srikakulam District, but he kept his entire family with his parents in Visakhapatnam and used to visit the schedule house at weekends and it was continued up to 2005. Though, later he was transferred to Hyderabad, he kept his family with his parents. Similar the 2nd defendant who was working in SBI was transferred to Visakhapatnam and he stayed with his parents during the temporary absence of 1st defendant. So also, 4th defendant used to stay with the parents till 1997. (c) The further averments in the plaint that after execution of the gift deed their father suffered with Alzheimer’s disease is wrong. O.S.No.495/2016 was filed with all true facts. The will dated 10.08.2016 is a genuine one and it was executed by their father in favour of 1st plaintiff as well as defendants. The defendants claim right in the plaint schedule property basing on the contents of the will. The gift deed was a fabricated document as the 1st plaintiff and her husband in order to grab the entire property took their father to the Sub-Registrar Office on the pretext of upgrading the Aadhar card and other I.D. cards and got his signatures on some papers and obtained the registered gift deed. Later on knowing the true facts, Bapanaiah has complained to the police of MVP station which was registered as Cr.No.309/2016. (d) Thereafter, Bapanaiah with a view to provide his property to all of his sons and also to his daughter, executed the will dated 10.08.2016 in a sound disposing state of mind. The fraudulent acts of 1st plaintiff were widely published in local papers. It is not true to say that a false complaint was given to the police through their father. The defendants filed O.S.No.762/2020 seeking permanent injunction restraining the plaintiffs herein from interfering with the plaint schedule property, the said suit is pending. The defendants prayed to dismiss the suit. 5. Along with suit the plaintiffs filed I.A.No.74/2021 seeking interim injunction restraining the defendants from interfering with the plaint schedule property. The defendants filed O.S.No.762/2020 seeking permanent injunction restraining the plaintiffs herein from interfering with the plaint schedule property, the said suit is pending. The defendants prayed to dismiss the suit. 5. Along with suit the plaintiffs filed I.A.No.74/2021 seeking interim injunction restraining the defendants from interfering with the plaint schedule property. The defendants contested the said petition. 6. A perusal of the order dated 28.07.2022 in I.A.No.74/2021 in O.S.No.491/2021 would show that the trial court having taken into consideration the respective pleadings of the parties in I.A.No.98/2020 in O.S.No.762/2020 filed by the defendants herein, observed that as per the respective pleadings, the plaintiffs herein have not made any outright denial of the possession of the defendants in respect of the plaint schedule property and further the documents would show that the possession of the defendants herein is permissive possession whereas the possession of the plaintiffs herein is a settled possession and as such no injunction can be granted against co-owners hence the petition in I.A.No.98/2020 is liable to be dismissed. In view of the reasons for dismissal of earlier petition in I.A.No.98/2020 in O.S.No.762/2020 filed by the defendants herein, applying the same reasons, the trial court dismissed the interim injunction petition in I.A.No.74/2021 in O.S.No.491/2021. The relevant portion of the order in I.A.No.74/2021 reads thus: “10. Based on the pleadings in IA 98/2020 which were relied upon by the petitioners herein by way of reference, i.e. Ex.A17, it can be said that there is no outright denial of possession by the respondents herein of the schedule property in IA No.98/2020. The respondents herein submitted documents which are short of establishing settled possession, but they are sufficient to show some kind of permissive possession. Infact, the petitioners herein admitted the said fact in their counter averments. The only development from the time of passing Ex.A17 till date of fling of this suit appears to be evident from the Ex.A.18. The contents of Ex.A18 are vague with respect to manner in which the respondents tried to interfere with the petitioner’s possession. In order to grant temporary injunction it is not sufficient to show that the petitioner’s are prima facie in possession of the property. It is also necessary to establish prima facie, that the respondents tried to interfere with the possession of the property by the petitioner. In order to grant temporary injunction it is not sufficient to show that the petitioner’s are prima facie in possession of the property. It is also necessary to establish prima facie, that the respondents tried to interfere with the possession of the property by the petitioner. In instant case, the respondents’ counsel referred to Ex.A12 wherein they are seeking comprehensive relief including one for permanent injunction not to interfere with their possession of ground foor and frst foor of the schedule property. There is nothing on record to show that since the passing of orders in Ex.A.17, petitioner herein obtained physical possession of the property. Infact, in the earlier suit i.e. OS 762/2020, the respondents herein claimed possession of the schedule property. The only ground for rejection of their petition in OS 762/2020 is that their case did not fall under the exception provided for grant of injunction in any case fled by the one co-owner against another co-owner. 11. In view of the above discussions, this court is of the opinion that the petitioner failed to make out a prima facie case in their favour. Accordingly, Point is answered against the petitioner.” 7. Aggrieved by the said order, the plaintiffs filed CMA No.42/2022 before the learned XII Additional District Judge, Visakhapatnam. The appellate court set aside the impugned order and allowed the I.A.No.74/2021 in O.S.No.491/2021 and granted temporary injunction in favour of plaintiffs herein with the main observation that under Ex.A2-registered gift deed, the plaintiffs could show their prima-facie title and possession and till the said gift deed is set aside in the comprehensive suit in O.S.No.495/2016 filed by late mother of the parties, the possession of the plaintiffs have to be protected. On such main observation, the appellate court granted interim injunction in favour of the plaintiffs. Hence, C.R.P. 8. Heard learned counsel for petitioner Sri G.V.S.Kishore Kumar and learned counsel for respondents/plaintiffs Sri A.Radha Krishna. 9. Both parties reiterated their pleadings in their respective arguments. On such main observation, the appellate court granted interim injunction in favour of the plaintiffs. Hence, C.R.P. 8. Heard learned counsel for petitioner Sri G.V.S.Kishore Kumar and learned counsel for respondents/plaintiffs Sri A.Radha Krishna. 9. Both parties reiterated their pleadings in their respective arguments. It is the contention of Sri G.V.S.Kishore Kumar that the gift deed is a sham and concocted document inasmuch as the plaintiff and her husband taking advantage of the illness of their father Bapanaiah, took him to Sub-Registrar Office and obtained a gift deed and later on knowing truth, their father gave a complaint to the police and thereafter their mother filed a comprehensive suit O.S.No.495/2016 to set aside the gift deed explaining in her pleadings the circumstances under which the gift deed was brought into existence and the said suit is still pending and till disposal of the said suit, the parties who are none other than brothers and sister shall be deemed to be the co-owners in respect of plaint schedule property and therefore, no interim injunction can be granted in favour of the plaintiffs against defendants and in fact in I.A.No.98/2020 in O.S.No.762/2020 filed by the present defendants, the interim injunction was refused to them on the same principle that no injunction can be granted against co-owners and therefore the interim injunction is liable to be set aside by allowing the C.R.P. He further submitted that even according to the will dated 10.08.2016 also, the 1st plaintiff and defendants are the legatees and co-owners of plaint schedule property and in that view also the plaintiffs are not entitled to interim injunction. 10. In oppugnation, Sri A.Radha Krishna, learned counsel for respondents vehemently argued that the gift deed was executed by the late father of the 1st plaintiff in a sound disposing state of mind and subsequently the defendants created an unregistered will as if their father set aside the gift deed and bequeathed the subject property in favour of the 1st plaintiff and defendants also which is false to the core. Learned counsel vehemently argued that one month after execution of the registered gift deed, the health of late Bapanaiah deteriorated as he suffered with Alzheimer’s disease which affected his mental faculties and in those circumstances, the defendants fabricated unregistered will. Learned counsel vehemently argued that one month after execution of the registered gift deed, the health of late Bapanaiah deteriorated as he suffered with Alzheimer’s disease which affected his mental faculties and in those circumstances, the defendants fabricated unregistered will. Learned counsel argued that while the 1st plaintiff is claiming title and possession over the subject property, the defendants have come up with an unregistered will and the veracity of both the documents has to be decided in the concerned matters. Till such time, the plaintiff since claiming the title and possession over the subject property through registered document, her possession has to be protected and the appellate court has rightly held so and granted interim injunction. He thus prayed to dismiss the C.R.P. 11. The point for consideration is whether there are merits in the C.R.P. to allow? 12. Point: This Court has punctiliously scrutinized the respective pleadings, arguments and orders of the both the courts. The trial Court dismissed the interim injunction petition on the ground that in I.A.No.98/2020 in O.S.No.762/2020 the present plaintiffs have not disputed the possession of the defendants herein but claimed it as only the permissive possession. It further held that in view of the registered gift deed, the possession of the present plaintiffs is a settled possession, whereas, the possession of the present defendants is a permissive possession and a comprehensive suit for cancellation of the gift deed is pending and in that backdrop, injunction cannot be granted against co-owners and accordingly dismissed the said petition. Whereas the lower appellate court set aside the above order on the main observation that the plaintiffs banked upon their claim on the basis of a registered gift deed, whereas the defendants are depending upon their case on the strength of an unregistered will deed and till the comprehensive suit for cancellation of the gift deed is decided, the prima-facie title and possession of the plaintiffs on the strength of the registered gift deed has to be protected and in that context the prima-facie case and balance of convenience are in favour of the plaintiffs and accordingly granted the interim injunction. 13. On a careful study, it must be said that the order of the lower appellate court is sustainable on facts and in law. 13. On a careful study, it must be said that the order of the lower appellate court is sustainable on facts and in law. Admittedly, the plaintiffs’ case rests on the strength of the registered gift deed said to be executed by the father of the 1st plaintiff in respect of the entire building including the plaint schedule portion. Whereas, the defendants have come up with an unregistered will. No doubt a comprehensive suit in O.S.No.495/2016 filed by the mother of the parties questioning the validity of the gift deed is pending. However, an important legal question would arise to the effect when the father of the plaintiff has not cancelled the gift deed by way of any registered instrument, but only said to have executed an unregistered will and in that view, whether unilateral cancellation is valid in the eye of law or not. Thus, the validity of gift deed and will have to be decided after a full-fledged trial. Be that as it may, till that exercise is completed, the plaintiff being the holder of a registered gift deed, her prima-facie title and possession have to be protected by the court as rightly observed by the lower appellate court. In that view, the defendants now cannot claim the joint possession as co-owners. The impugned order in my view is perfectly valid. 14. Accordingly, the C.R.P. is dismissed. No costs. As a sequel, interlocutory applications pending if any in this C.R.P. shall stand closed.