CRP/3345/2010 of C.Girijanath Vs Chennama Raju Bhanumurthy on 31 December 2010

ORDER:

This revision is directed against the judgment dated 31.5.2010 passed in C.M.A.No.32 of 2008 on the file of the Family Court-cum-Additional District Judge at Mahaboobnagar, whereby and whereunder the learned Additional District Judge dismissed the appeal filed under Order 43, Rule 1 (r) C.P.C assailing the order dated 1.8.2008 passed in I.A.No.779 of 2007 in O.S.No.243 of 2007 on the file of the Junior Civil Judge, Shadnagar.

2. The 1[st] respondent herein is plaintiff and whereas the petitioner and the 2[nd] respondent herein are the defendants in O.S.No.243 of 2007. The plaintiff filed the suit for injunction simplicitor in respect of the suit house bearing No.7-89 (5-39/1 old) together with open place admeasuring 150 square yards situated at Kondurg Village and Mandal, Mahaboobnagar District. He also moved I.A.No.779 of 2007 under Order 39, Rules 1 & 2

read with Section 151 CPC seeking for temporary injunction. It is the plea of the plaintiff that he got the suit house under a Will deed dated 10.10.1990 executed by Sudhakara Rao. He got not only the suit house but also other properties of Sudhakar Rao. According to him, he got the house mutated in his name in the GramaPanchyat records.

3. The 2[nd] defendant resisted the application claiming the suit property under a Will executed by the second wife of Sudkhakar Rao on 11.11.1997.

4. The plaintiff filed nine documents to to prove his possession over the suit property as on the date of filing of the suit. Whereas, the 2[nd] defendant filed 17 documents to prove of his possession over the suit schedule house.

The learned Junior Civil Judge, on considering thematerial brought on record and on hearing the counselappearing for the parties, came to the conclusion that theplaintiff made out a prima facie case and balance ofconvenience in his favour and thereby proceeded to granttemporary injunction by order dated 1.8.2008. Relevantportion of the order reads as hereunder:- “The 2[nd] respondent on his behalf has filedEx.B1 which consists of [11] electricity bills and oneelectricity payment receipt. However, a perusal ofthe same no doubt, indicates the name of the 2[nd]

respondent herein but they do not specifically mentionthat they pertain to the suit schedule house bearingNo.7-89 new [5-39/1 old] of Kondurg village Ex.B2 toEx.B7 are the telephone bills in the name of the 2[nd]respondent and all of them show address of the 2[nd]respondent as house No.6-17, Kondurg village. Nowhere in Ex.B2 to Ex.B7 the address of therespondent is shown as the resident of the suithouse. Ex.B8 is the original Will deed dated 11-11-1997 in favour of the 2[nd] respondent said to havebeen executed by C.Pushapavalli. Ex.B9 to Ex.B12are the letters addressed by the 2[nd] respondent to theSarpanch, Kondurg requesting not to grant permissionfor construction of house in respect of House No.12-42, 6-17, 12-42/1, 6-17/1 and for change of the nameof the house bearing No.12-41 from the name ofC.Pushpavalli in the name of the 2[nd] respondent,raising objection for payment of tax for the 2[nd] timeby some 3[rd] parties in respect of house No.12-41 and

for raising objections for granting permission forconstruction of house to some 3[rd] party on somebogus documents etc respectively. It is significant tonotice that none of the documents under Ex.B9 toEx.B12 would categorically show that only claim ismade by the 2[nd] respondent in respect of the suitschedule property to the Sarpanch, Grampanchyat. The said documents are conspicuous by theirabsence about the number of the suit house No.7-89new 5-39[1] as mentioned in the plaint. Ex.B13 andEx.B14 are the tax receipt and house ownershipcertificate in respect of House No.6-17 of Kondurg inthe name of C.Pushpavalli, which are dated 9-2-1991and 15-4-1991 respectively. Interestingly, there is nomention of the suit schedule property either in Ex.B13or Ex.B14 or that they depict that the said amountunder Ex.B13 has been paid by the 2[nd] respondentherein but on the contrary, they would make it evidentthat the tax for the house No.6-17 has been paid bythe said Pushpavalli who is shown as owner of the said house under Ex.B14. As noticed above, Ex.B14also does not pertain to the suit schedule propertyand house number. Ex.B15 and Ex.B16 are the legalnotice issued on behalf of the father of the petitionersto the 2[nd] respondent dated 20-11-2000 and the replynotice dated 14-12-2000 respectively. Ex.B17 is theration card in the name of the 2[nd] respondent, whichis issued on 20-2-2007 showing him to be the residentof house No.7-89/1. Therefore, on a perusal of thedocumentary evidence filed on behalf of the 2[nd]respondent as noticed hereinbefore, except Ex.B17which is issued on 20-2-2007, other documents donot in any way specifically show the possession orownership of the 2[nd] respondent over the suitschedule property. However, insofar as Ex.B8 isconcerned which is the gift deed, this court is notrecording any finding therein as its authenticity andgenuineness have to be established during the courseof trial in the main suit along with Ex.A1 which is filed by the petitioner.”

5. The 2[nd] defendant filed C.M.A.No.32 of 2008

assailing the order passed in I.A.No.779 of 2007 in O.S.No.243 of 2007.

The learned Additional District Judge, on reappreciation of the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the 2[n d ]defendant/appellant failed to make out any valid ground to interfere with the order passed by the trial Court in granting temporary injunction and thereby proceeded to dismiss the appeal by judgment dated 31.5.2010.

The said judgment is assailed in this revision.

6. Heard learned counsel appearing for the appellant/2[nd] defendant and learned counsel appearing for the 1[st] respondent/plaintiff.

7. Learned counsel appearing for the petitioner/2[nd]

defendant submits that the appellate Court mistook the date of Ex.B7 and thereby erred in dismissing the appeal.

According to the learned counsel, Ex.B17 has beenobtained much prior to the filing of the suit, and whereas the observation of the appellate Court is that the petitioner/2[nd] defendant obtained Ex.B17 after filing of the suit. Indisputably, Ex.B17 is dated 20.2.2007. The suit came to be filed subsequently Ex.B17. Even assuming that Ex.B17 is obtained prior to the filing of the suit,whether the petitioner/2[nd] defendant has substantiated his plea of possession over of the suit property. Ex.B17 is the household card. Mere mentioning of the house number in the household card is not enough to draw a conclusion that the house mentioned therein is in occupation of theholder of the card.

8. The learned counsel appearing for the 1[st]

respondent/plaintiff supported the order impugned in therevision.

9. On behalf of the 1[s t ]respondent/plaintiff, nine documents have been marked and whereas, on behalf of the petitioner/2[nd] defendant, 17 documents have been marked before the trial Court. Both the parties are claiming the properties under unregistered wills. One executed by Sudhakar Rao infavour of the 1[st]

respondent/plaintiff and another one executed by the second wife of Sudhakar Rao infavour of the petitioner/2[nd]

defendant. Validity or otherwise of the wills are required to be examined in the appropriate proceedings. Since the suit being injunction simplicitor, the only issue is withregard to the possession of the suit property. The 1[st]

respondent/plaintiff placed on record the OwnershipCertificate and House Tax Payment Receipt issued by theSarpanch of Gram Panchayat, Kondurg.

10. All these documents prima facie speak of the possession of the 1[st] respondent/plaintiff over the suit schedule house. The trial Court as well as the Appellate Court considered the documents of the defendants and came to the conclusion that except Ex.B.17, the otherdocuments do not indicate of the petitioner being in occupation of the suit schedule house. The only document, somewhat relevant is Ex.B17-household card.

As I stated supra, mere mentioning the name in thehousehold card is not sufficient to draw inference that the holder of the card is in occupation of the house statedtherein.

The trial Court and the appellate Court considered the material brought on record and granted temporary injunction infavour of the 1[st] respondent/plaintiff. I do notsee any illegality or irregularity in the judgment impugnedin the revision warranting interference of this Court inexercise of powers under Article 227 of the Constitution of India.

11. Accordingly, this revision fails and it is hereby dismissed. However, the trial Court is directed to dispose of the suit as expeditiously as possible, preferably, within two months from the date of receipt of a copy of this order. No order as to costs.

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JUSTICE B. SESHASAYANA REDDY

Date:31.12.2010 mrb