CIVIL APPEAL 3047 of 2016 on 19 June 1998

ORDER:

This civil revision petition is directed against the order of the Court of learned III Additional District Judge, Guntur in C.M.A.No.29 of 2015 dated 29.02.2016.

2. The petitioners are the respondents in C.M.A.No.29 of 2015 and the defendants in O.S.No.678 of 2015 on the file of the Court of learned III Additional Junior Civil Judge, Guntur.

3. The respondent instituted the suit against the petitioners for grant of permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the plaint schedule property.

4. The plaint schedule property is an extent of Ac.1.72 cents in D.No.290/B out of Ac.3.44 cents in Kurnathala Village, Prathipadu Mandal Guntur District.

5. Along with the suit, the respondent also filed I.A.No.471 of 2015 under Order XXXIX Rules 1 and 2 C.P.C., read with Section 151 C.P.C., for grant of temporary injunction against the petitioners, similarly requesting to restrain them, with their peaceful possession and enjoyment of the petition schedule property during the pendency of the suit.

6. The case of the respondent in the trial Court is that Sri Kurra Sitaramaiah is the absolute owner of the plaint schedule property having had purchased Ac.0.86 cents in D.No.290/B out of the plaint schedule property from Kurra Samrajyam under a registered sale deed dated 19.06.1998 and remaining Ac.0.86 cents out of it was the ancestral property of Sri Kurra Sitaramaiah. It is the further case of the respondent in the trial Court that Sri Kurra Sitaramaiah was enjoying the above property with absolute right, in whose favour Pattadar Passbook and book of title deed were also given with relevant entries recorded in 1-B register, Adangals etc., and that he sold this land to the respondent for Rs.4,30,000/- under a registered sale deed dated 16.03.2015. Thus the respondent claimed that he became the owner of this land and has been in possession and enjoyment of the same, with which the petitioners tried to interfere, that made him to lay the suit as well as the petition for temporary injunction as stated above.

7. The petitioners opposed the above claim of the respondent denying it including possession and enjoyment claimed by the respondent, of the suit land. They further contended that Sri Kurra Sitaramaiah is the father of the 1[st] petitioner and that the respondent is none other than the grandson of senior paternal uncle of Sri Kurra Sitaramaiah. They further contended that the 1[st] petitioner filed O.S.No.581 of 2015 on the file of the Court of learned I Additional Senior Civil Judge, Guntur for partition against her father and for permanent injunction against the respondent contending that mother of the 1[st] petitioner died when she was a minor, thatshe was brought up by her paternal grandparents and that she was living with her father at Chamallamudi village. They further contended that 2[nd] petitioner is the husband of the 1[st] petitioner and at the time of her marriage her father Sri Sitaramaiah had promised to give away an extent of Ac.0.86 cents out of the plaint schedule property along with other property, whereby he also delivered possession of the same to the 1[st] petitioner at the time of her marriage. They further contended that the 1[st] petitioner has been enjoying the above land raising crops and that from the income derived out of this land, another extent of Ac.0.86 cents along with some other properties was purchased. They further contended

that other extent of Ac.0.86 cents out of the plaint schedule land was purchased by her and her father from Sri Kurra Samrajyam on 19.06.1998, in the name of her father being an elder in the family and when she requested her father to execute a regular registered document in her favour, he went on delaying on one pretext or other. They further alleged that her father is now under the thumb of the respondent and that suppressing the facts, the suit has been laid. They further contended that a legal notice was issued on behalf of the petitioner on 12.09.2015 and 15.09.2015 demanding Sri Sitaramaiah to execute regular registered gift deed in her favour, as promised at the time of her marriage with reference to the plaint schedule land or to cooperate in dividing the said land into two equal shares while allotting one such share to her. Thus, they claim that nominal and sham documents came to be executed, by her father in respect of the plaint schedule property and other properties in favour of the respondent and other relations.

8. The petitioners further contended that after coming to know that the 1[st] petitioner filed O.S.No.581 of 2015 the respondent filed a suit for permanent injunction and that her father issued a reply notice to her notice with false averments suppressing true facts.

9. Thus mainly contending that the respondent suppressed material facts, the petitioners requested to dismiss the suit as well as the petition filed for grant of temporary injunction.

10. The trial Court upon considering the pleadings as well as Ex.P.1 to Ex.P.5 and Ex.R.1 to Ex.R3 exhibited during the course of hearing in I.A.No.471 of 2015, observed that though the respondent had made out prima facie possession of the plaint schedule land, the balance of convenience stood in their favour. Thus observing, relief was refused in the above petition, on the ground that the respondent suppressed his relationship with the petitioners as well as filing the suit in O.S.No.581 of 2015 on the file of the Court of learned I Additional Senior Civil Judge, Guntur. Thus, observing that the respondent did not approach the court with clean hands, declined to grant temporary injunction as requested.

11. In the appeal while considering such observations of the trial Court, it was held that there was only short span of 15 days between institution of both the suits, which could not lead to infer that there was suppression of filing suit in O.S.No.581 of 2015 by the 1[st] petitioner against the respondent and in as much as the possession of the plaint schedule land, as per the revenue records, is proved prima facie to rest with the respondent, the order of the trial Court was not proper. Thus stating the appellate Court allowed the appeal. Thus temporary injunction was granted restraining the petitioners from interfering with the peaceful possession and enjoyment of the plaint schedule property till disposal of the suit.

12. In this revision petition on behalf of the petitioners adverting to the facts referred to above, pointing out that the respondent resorted to suppression of all material facts with reference to close relationship among the parties, as well as pendency of the partition suit instituted by the 1[st] petitioner against the respondent and his father in O.S.No.581 of 2015, it is stated that the learned appellate Judge was not right in brushing aside these material facts. It is further pointed out on behalf of the petitioners that learned appellate Judge also did not consider the close relationship among the parties and when the approach of the respondent for equitable relief of injunction is unclean, in such background, learned appellate Judge was not right in reversing the reasoned judgment of the learned trial Judge. Thus contending, it is requested to allow the revision petition.

13. However, on behalf of the respondent Sri N. Sriram Murthy, learned counsel supported the appellate order with reference to material on record, particularly pointing out that the trial Court also observed possession of the plaint schedule land to rest with the respondent basing on Exs.P.1 to P.5 and in such an event balance of convenience lies with the respondent, which is necessary for grant of temporary injunction. Learned counsel for the respondent further contended that the learned appellate Judge rightly drawn inferences basing on the material on record including with reference to the possession of the plaint schedule land and the short duration between the institution of both suits was also considered in right perspective. Thus elaborating with reference to material on record, learned counsel Sri N. Sriram Murthy sought not to interfere with the order of the appellate Court.

14. Now, the point for determination is – whether in the presence of the findings of the trial Court as confirmed by the appellate Court of possession prima facie of the plaint schedule land to rest with the respondent, the alleged suppression of facts have any bearing in granting temporary injunction sought by the respondent against the petitioners?

15. The burden is on the respondent who approached the trial Court for relief of permanent injunction against the petitioners and for grant of temporary injunction during the pendency of the suit against them not to interfere with his peaceful possession and enjoyment of the plaint schedule property to prima facie establish. The respondent cannot rely on any weaknesses, lapses or laches in the case set up by the petitioners. It is fundamental that the respondent should make out a prima facie case as well as balance of convenience in his favour in this process while also making out that he would suffer irreparable loss and injury in the event of refusal to grant injunction so sought during the pendency of the suit.

16. The entire case of the respondent is based on purchase of plaint schedule land from Sri Kurra Sitaramaiah under Ex.P.1 sale deed on 16.03.2015 for consideration, who was delivered possession of the same thereunder. He further contended that possession and enjoyment of this land by him, has been confirmed by the revenue records, viz., Ex.P.2 to Ex.P.4.

17. Contra to such material placed by the respondent, the petitioners did not produce any other material to the effect that the 1[st]petitioner has been in effective possession and enjoyment of Ac.0.86 cents out of the plaint schedule land, which was given to her at the time of her marriage as Pasupu Kumkuma.

18. In such background, both the Courts below were right in holding that possession of the suit land to rest with the respondent, on the date of the suit.

19. The plaint and the affidavit of the respondent in I.A.No.471 of 2015 did not disclose the relationship of the 1[st] petitioner and Sri K. Sitaramaiah being daughter and father respectively as well as the relationship inter se among the respondent and the petitioners. It is a factor that weighed with the learned trial Judge to hold that it is a serious suppression of material making out that the respondent approached the Court with unclean hands.

20. The 1[st] respondent undisputedly instituted O.S.No.581 of 2015 on the file of the Court of learned I Additional Senior Civil Judge, Guntur for partition of the plaint schedule properties therein into two equal half shares and to allot one such share to her, against Sri Kurra Sitaramaiah, viz., her father and the respondent herein. Item-1 in the above suit is the present plaint schedule land and it is another suppression of fact according to the learned trial Judge that affects the claim of the respondent in this case. In this respect learned appellate Judge observed in paragraph-18 as follows:

“Whether appellant had knowledge about filing of O.S.No.581 of 2015, by the respondent No.1, is a short question that falls for consideration, to know his conduct in seeking injunction in this case, and as discussed supra, suit in O.S.No.581 of 2015 was filed on 21.09.2015, and whereas this proceedings are instituted by appellant on 05.10.2015, that is to say 15 days after filing of suit in O.S.No.581 of 2015, and there is no material on record available to indicate by the date of instituting this proceedings that appellant was aware of filing of O.S.No.581 of 2015, and made his appearance in the said suit of respondent No.1, and when there is no material to indicate that appellant was aware of O.S.No.581 of 2015 and that he put in his appearance in the said proceedings it cannot be said by the date of instituting this proceeding before Court below, the pendency of suit in O.S.No.581 of 2015 was within the knowledge of appellant, and he suppressed the same and instituted the proceedings and it appears the Court below has not considered this factual position of filing of suits by appellant and respondent No.1, within a span of 15 days, and seems to have went wrong by observing, that appellant has suppressed the filing of suit in O.S.No.581 of 2015, filed by respondent No.1.”

21. The reason so assigned is proper and it is not necessary to interfere with the same. Thus question of suppression of pendency of O.S.No.581 of 2015 is not a matter of significance in this case.

22. However, learned appellate Judge did not record any finding relating to other alleged suppression of fact, viz., the relationship among the parties.

23. A careful consideration of material on record is making out that the respondent has been in possession and enjoyment of the plaint schedule land and it was the situation on the date of the institution of the present suit. The very fact that the 1[st] petitioner has chosen to file O.S.No.581 of 2015 for partition claiming that she has been in joint possession and enjoyment of the properties concerned thereto that included the plaint schedule property, causes a serious dent to her contention of exclusive possession and enjoyment of a part of the suit land, viz., Ac.0.86 cents. In such an event, inference to draw is that the respondent has prima facie case in his favour. In holding on to the possession of the land in dispute, in such circumstances, the respondent has balance of convenience in his favour. If he is dispossessed during the pendency of the suit, he would suffer irreparable loss and injury.

24. Oh behalf of the respondent, in support of his contention reliance is placed on a judgment of this Court in M. Ramaswamy v. Golla Rangamma[1]. In the background of facts concerned to the case in para-7 of the above ruling it was observed as under:

“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 that the petitioner had discharged his basic burden. However, while weighing the pros and cons of the matter, the case presented by the respondent in the application filed under Order XXXIX 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-à-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.

25. Further reliance is placed on behalf of the respondent in Dasari Laxmi v. Bejjenki Sathi Reddy and anr.[2] with reference to the scope of a revision in terms of Article 227 of Constitution of India vis-à-vis the role of this Court in para-43 as under:

“……… Thus, said exercise of jurisdiction under Article 227 is by interference where there has been a patent perversity in the orders of the subordinate Court or Tribunal and where there has been a gross and manifest failure of justice or the basic principles of natural justice has been flouted. Otherwise, the High Court cannot interfere to correct some errors of law or fact or just because another view than the one taken is a possible and thus, it has to be sparingly exercised. Needless to say as held by another Constitutional Bench in L. Chandru Kumar v. Union of India, [(1997) 3 SCC 261], this power of superintendence cannot be curtailed by any statute and even approachment by a constitutional amendment is doubtful.”

26. In the above circumstances, having regard to the nature of relationship among these parties, particularly, when Sri Kurra Sitaramaiah has disputed the paternity of the 1[st] petitioner, want of reference to the relationship among the parties, in this factual background, cannot have significant bearing.

27. Therefore, in the above circumstances, inference to draw is that the appellate Court was right in directing the petitioners to be restrained by way of temporary injunction from interfering with the possession and enjoyment of the plaint schedule land of the respondent during the pendency of the suit.

28. In the result, Civil Revision Petition is dismissed confirming the order and decree of the learned III Additional District Judge, Guntur in C.M.A.No.29 of 2015 dated 29.02.2016. There shall be no order as to costs.

29. As a sequel, pending miscellaneous petitions, if any, shall stand closed.

17[th] September, 2019 Js.

_________________________

M. VENKATA RAMANA, J.

Js.

HONOURABLE SRI JUSTICE M. VENKATA RAMANA

C.R.P.No.3047 of 2018

17[th] September, 2019