D. Apparao vs D. Rama Mohanarao

Y.V. Narayana, J.—The defendant in O.S. No. 139 of 1990 on the file of the learned Munsif Magistrate, Ponnur filed this revision petition against the order dated 1-8-1994 in CM. A. No. 6 of 1991 on the file of the learned Subordinate Judge, Bapatla on the ground that the lower appellate Court failed to apply its mind to the facts of the case and committed an error apparent on the face of the record.

The brief facts of the case are as follows:

The plaintiff-respondent filed the suit for permanent injunction against the appellant (sic. petitioner) defendant from interfering with his peaceful possession and enjoyment of the plaint schedule land. It is averred that the grand-mother of the plaintiff .Dasari Durgamma purchased item-2 of the plaint schedule from Y. Seetaramaiah and others under a registered sale deed dated 11-12-1964; that in 1930 she encroached upon item-1 of the plaint schedule property, after the Mathukumalli Malakondarayudu the owner migrated to Tenali; that she has been in uninterrupted possession and enjoyment of the same without any objection by anybody at any time; that the adverse possession of Dasari Durgamma is evident from the revenue records; that Dasari Durgamma died on 21-1-1981; that during her life time she conveyed some of the properties including items 1 and 2 of plaint schedule property; that as the plaintiff was then a minor, his guardians have managed the same; that after attaining majority, the plaintiff is in peaceful possession and enjoyment of the same; that the defendant-appellant (sic. petitioner) is the owner of surrounding lands; that the defendant made an attempt to encroach upon the plaintiff''s land with a view to grab the same; that the plaintiff gave a Police report; that the defendant kept quiet for some time; that the respondent (sic. defendant) is proclaiming in the village that he would evict the plaintiff from the plaint schedule land by force. Therefore the plaintiff filed I.A. No. 1302/90 under Or.39 Rules 1 and 2 CPC for grant of a temporary injunction restraining the defendant and his men from interfering with his peaceful possession and enjoyment of the plaint schedule property.

The defendant-appellant (sic. petitioner) resisted the said petition by filing counter with the following allegations. The suit itself is bad for non-joinder of necessary parties; that Durgamma was never in adverse possession of the plaint schedule properties; that the original owner never lost his title to the property; that the will on which the plaintiff relies, no where states that Durgamma was in a absolute possession and enjoyment of the said property; that the rightful legal heir of Malakondayudu sold the property to the defendant-appellant (sic. petitioner); that the plan and its topography filed by the plaintiff are absolutely incorrect and that the petition may be dismissed with costs.

The trial Court, after going through the entire material on record and after hearing the arguments of the Counsel for both sides, opined that the plaintiff has no prima facie case and the balance of convenience is in favour of the defendant and that irreparable injury would be caused to the defendant in case an interim injunction is granted in favour of the plaintiff. Thus holding the trial Court dismissed the petition filed by the plaintiff, with costs. Against that the plaintiff preferred appeal C.M.A. No. 6 of 1991 before the Subordinate Judge, Bapatla.

The lower appellate Court, after considering the material on record and upon hearing the arguments of the Counsel for both sides, came to the conclusion that the plaintiff has established prima facie case and balance of convenience is in his favour and against the defendant so far as item-1 of the plaint schedule property is concerned and the plaintiff will suffer irreparable loss if injunction is not granted to that extent. So far as item-2 of the plaint schedule property is concerned, the lower appellate Court came to the conclusion that the plaintiff has no prima facie case and balance of convenience is in favour of the defendant and that the defendant will suffer irreparable injury if injunction is granted in favour of the plaintiff in respect of item-2 of the suit schedule property. Thus holding the lower appellate Court partly allowed the appeal granting temporary injunction in favour of the plaintiff and against the defendant so far as item-1 of the plaint schedule properties is concerned and dismissed the appeal so far as item-2 of the plaint schedule properties is concerned. Against that order the defendant filed the present revision petition u/s 115 of the Code of Civil Procedure.

The point that arises for consideration m this revision petition is: Whether the order under revision suffers from any material irregularity or illegality?

So far as item-2 of the plaint schedule property is concerned, both the Courts below have concurrently held that the plaintiff has no prima facie case and balance of convenience for grant of temporary injunction in his favour and against the defendant and have given cogent and convincing reasons for coming to that conclusion. The orders of the Courts below do not suffer from any irregularity or illegality so far as item-2 of the plaint schedule property is concerned and do not call for any interference by this Court. Therefore the order under revision, so far item-2 of plaint schedule property is concerned, is hereby confirmed.

So far as item-1 of plaint schedule property is concerned, the trial Court held that the plaintiff has no prima facie case or balance of convenience in favour of the plaintiff for granting temporary injunction and dismissed the petition. But the lower appellate Court reversed the said finding of the trial Court and held that the plaintiff has prima facie case and balance of convenience in his favour for grant of temporary injunction and allowed the appeal to that extent.

Therefore it has to be seen whether the plaintiff has prima facie case and balance of convenience in his favour for grant of temporary injunction against the defendant, so far as item-1 of the plaint schedule property is concerned.

The petition in the trial Court is filed under Order XXXIX Rules 1 and 2 C.P.C. only for, grant of temporary injunction pending disposal of the suit. To obtain interim injunction pending disposal of the suit, the plaintiff has to establish prima facie that he is in possession and enjoyment of the suit schedule property on the date of filing of the suit by adducing necessary oral and documentary evidence, but he cannot rely upon the weakness and lacunae in the case of the defendant.

It is the specific case of the plaintiff that his grand-mother Dasari Durgamma died on 21-3-1981. When she died on 21-3-1981, it is not known as to how the entries in Exs.A-3 and A-4 were made showing that Durgamma was in possession of item-1 of plaint schedule property. Hence on the basis of Exs.A-3 and A-4, it cannot be said that Durgamma was in possession and enjoyment of item-1 of plaint schedule property and no weight can be attached to Exs.A-3 and A-4 entries. The trial Court also came to the same conclusion and negatived the relief of the plaintiff to that extent. But the lower appellate Court disagreed with the finding of the trial Court on this aspect and held that it is the duty of the Revenue Authorities to find out whether Durgamma was alive or dead and that who is in possession of the property and on coming to know the same, they have to make necessary entries in the Revenue Records and for the fault of the Revenue Authorities, the plaintiff cannot be penalised. The lower appellate Court forgets that the documents Exs.A-3 and A-4 are filed in the interlocutory proceedings. When a document is filed in interlocutory proceedings, the contents of the same must be taken into consideration as they are, but does not go into the truth or validity of the same and the truth or validity of the contents of the said document must be gone into at the time of trial only and see whether that document helps the plaintiff in establishing that prima facie he is in uninterrupted possession and enjoyment of the plaint schedule property. The lower appellate Court went wrong in considering the validity of the contents of Ex. A-3 and A-4 and basing on the same the lower appellate Court granted interim injunction, which is an error apparent on record.

In Ex.A-1, registration extract of the will dated 11-11-1968 executed by Durgamma, it is not mentioned anywhere that items 1 and 2 of plaint schedule properties were bequeathed in favour of the plaintiff. The properties which were mentioned in A-Schedule in Ex.A-1 will, do not include items 1 and 2 of the plaint schedule properties. So Ex.A-1 is of no help to the plaintiff in establishing prima facie his uninterrupted possession and enjoyment of item-1 of the plaint schedule properties.

Ex .A-3 is the certified copy of 10(1) Account dated 31-10-1990 for the Fasli 1399 i.e., for the year 1989. It shows that Durgamma is in possession of item-1 of plaint schedule property. Ex. A-4 is the certified copy of No. 2 Adangal dated 31-10-1990 for the Fasli 1399 i.e., for the year 1989. It shows the name of Durgamma as the person who is in possession and enjoyment of item-1 of plaint schedule property. Both Exs.A-3 and A-4 are dated 31-10-1990, which are brought into existence nearly nine years after the death of Durgamma and it is not known how Durgamma''s name was shown as the person in possession and enjoyment of item-1 of plaint schedule property, admittedly when she died on 21-3-1981. Hence no weight can be attached to the entries in Exs.A-3 and A-4 for this reason. Basing on Exs.A-3 and A-4 it cannot be said that the plaintiff prima facie is in possession and enjoyment of item-1 of plaint schedule property.

Relying on the entries of Exs.A-3 and A-4, it is contended by the learned Counsel for the respondent-plaintiff that Durgamma had perfected her right over item-1 of plaint schedule property by adverse possession. When the plea of adverse possession is pleaded, it is the duty of the plaintiff to prove that Durgamma is in continuous, exclusive and uninterrupted possession of item-1 of plaint schedule property for over a statutory period as required under law. But the entries in Exs.A-3 and A-4 do not prove the continuous, exclusive and uninterrupted possession of Durgamma over item-1 of plaint schedule property as on the date of filing of the suit, as she died much earlier to the date of filing of suit. So the plea of Durgamma''s perfecting a right by adverse possession over item-1 of plaint schedule property cannot be accepted. The lower appellate Court went wrong in holding that "On careful perusal of Exs.A-3 and A-4, it is evident that Durgamma is in possession and enjoyment of item No. 1 of the plaint schedule property prior to filing of the suit that is by the year 1989" and that the petitioner (sic. respondent) (plaintiff) has established his title as well as possession over item-1 of plaint schedule property by having valid title over it. Thus the lower appellate Court committed an error apparent on record in granting temporary injunction so far as item-1 of the plaint schedule property is concerned pending disposal of the main suit.

In the result the order of the lower appellate Court in granting temporary injunction with regard to item-1 of the plaint schedule property is set aside and the order of the trial Court negativing temporary injunction so far as item-1 of the plaint schedule property is concerned, is confirmed. The C.R.P. is partly allowed to the extent indicated above and LA. No. 1302 of 1990 in OS. No. 139 of 1990 on the file of the learned Munsif-Magistrate, Ponnur is dismissed. No costs throughout.