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Sunday, October 21, 2012

For seeking temporary injunction, the petitioner has to prove that she is in possession and enjoyment of the petition schedule property on the date of filing of the suit and that she has to comply the provisions of Order 39 Rule 1 and 2 of CPC i.e., prima facie case, balance of convenience in her favour and irreparable loss being caused to her if temporary injunction is not granted. But, Exs.A.3 to A.5 are issued based on Exs.A.1 and A.7, and these documents do not in any way establish the possession of the petitioner over the petition schedule property. Except, Exs.A.3 to A.5, the petitioner has not filed any authentic material to show that she is in possession of the petition schedule property as on the date of filing of the suit. As such, it cannot be said that the petitioner has prima facie proved her possession over the petition schedule property . So far as the admission of respondent No.1 in his deposition and the report of the Advocate Commissioner in O.S.No.234 of 1979 on the file of the Subordinate Judge, Guntur are concerned, the petitioner has to bring the same on record during the course of the trial in the suit and it cannot be dealt with at this interlocutory stage.


HON'BLE SRI JUSTICE B.N. RAO NALLA      

C.M. A. No.437 of 2005

04.10.2012    

Urumula Yellamma w/o.late Venkatappa Reddy  

1)Pullapati Raja Rao, 2)Pullapati Rupadhar, 3) Pullapati Lata, 4)Pullapati
Usharani

Counsel for the Appellant: Sri K.S.Murthy

Counsel for Respondent No.1:   Sri P.Thirumala Rao

^Counsel for Respondents 2 to 4 : Sri Upendra Chakravarthy

<GIST :

>HEAD NOTE :  

?Cases referred :

JUDGMENT:  

             This Civil Miscellaneous Appeal is preferred assailing the order
dated 11.03.2005 in I.A. No.1205 of 2004 in O.S. No.497 of 2004 on the file of
the Court of Principal Senior Civil Judge, Guntur.

2.      The appellant herein is the petitioner - plaintiff and the respondents
herein are the respondents - defendants in the I.A.   Suit is filed for
declaration and for consequential injunction restraining the respondents -
defendants, their men from interfering with possession and enjoyment of the
petitioner - plaintiff over the suit schedule property.

3.      For the sake of convenience, the parties hereinafter referred to as they
arrayed in the I.A.

4.      The petitioner filed the present I.A. under Order 39
Rules 1 and 2 of the Code of Civil Procedure (for short 'CPC') for temporary
injunction restraining the respondents, their men, agents etc. in any way
interfering with the peaceful possession and enjoyment of the petitioner over
the petition schedule property or from entering into any transactions of
alienation or lien or charge pending disposal of the suit.  After enquiry, the
trial Court dismissed the I.A. holding that the petitioner has not proved prima
facie case, balance of convenience or irreparable loss.  Aggrieved thereby, the
petitioner filed the present Civil Miscellaneous Appeal.

5.      It is the case of the petitioner before the trial Court that originally
her mother - Challa Narasamma had purchased the petition schedule property from
respondent No.1 - Pulipati Raja Rao and his mother under notarized agreement of
sale dated 15.11.1974 and possession was also delivered to her.  Thereafter,
petitioner's mother - Challa Narasamma and  brother - Sambireddy had sold the
property in favour of the petitioner under sale deed dated 2.4.2002 and  she has
been in possession and enjoyment of the same.  The respondents without any
manner of right are trying to interfere with peaceful possession of the
petitioner over the petition schedule property.  Hence the petitioner preferred
the present I.A.

6.      It is the case of the respondents before the trial Court that respondent
No.1 or his mother never sold any property under the alleged agreement of sale
dated 15.11.1974 to the petitioner's mother - Challa Narasamma and they never
delivered possession of the petition schedule property to her.   In fact, the
respondents are in possession and enjoyment of the petition schedule property.
The petitioner is making all efforts to mutate her name in the revenue records
in respect of the petition schedule property.   Further, with regard to the
petition schedule property,
O.S. No.34 of 1999 on the file of the IV Additional District Judge, Guntur, is
pending.

7.      Heard the learned counsel on either side and perused the material
available on record.

8.       It is the contention of the learned counsel for the petitioner (appellant
herein) that the trial Court should have seen that from the date of agreement of
sale, the mother of the petitioner was in possession and thereafter pursuant to
the sale deed, the petitioner is in possession of the petition schedule property
and the same is evident from Exs.A.1 to A.8.  The trial Court failed to notice
that respondent No.1 admitted in his deposition in O.S.No.234 of 1979 on the
file of the Subordinate Judge, Guntur that he and his mother sold away Ac.2-00
to the mother of the petitioner about 10 years back.  The trial Court, while
dealing with a temporary injunction application, ought not to have gone into
title, and it ought to have seen who is in actual possession of petition
schedule property.  Further, the trial Court failed to notice that in O.S.No.234
of 1979, the advocate commissioner in his report stated that petitioner herein
purchased the petition schedule property and has been in possession of the same.

9.      The learned counsel for the respondents submitted that the impugned order
passed by the trial Court needs no interference at the hands of this Court as
the trial Court has given cogent and convincing reasons for dismissing the
application filed by the petitioner under Order 39 Rules 1 and 2 of CPC.  As
such, there are no merits in the C.M.A. and the same is liable to be dismissed.

10.     It is seen that the petitioner claiming title and possession over the
petition schedule property by mainly relying on documents Exs.A.7- agreement of
sale dated 15.11.1974 and 
A.1 -sale deed dated 02.04.2002.   It is the contention of the petitioner that
originally her mother - Challa Narasamma purchased the petition schedule
property from respondent No.1 and his mother under notarized agreement of sale
dated 15.11.1974 and that they delivered possession of the same to her mother -
Challa Narsamma and thereafter, petitioner's mother and brother - Sambireddy
sold the property to the petitioner vide registered sale deed dated 2.4.2002 and
since then she has been in possession of the same.   The order under appeal does
not indicate the extent of the petition schedule property.  It is the contention
of the respondents that the petitioner is never in possession of the petition
schedule property. For seeking temporary injunction, the petitioner has to prove
that she is in possession and enjoyment of the petition schedule property on the
date of filing of the suit and that she has to comply the provisions of  Order
39 Rule 1 and 2 of CPC i.e., prima facie case, balance of convenience in her
favour and irreparable loss being caused to her if temporary injunction is not
granted.  The petitioner in order to prove her possession over the petition
schedule property has filed documents - Exs.A.3, A.4 and A.5.   But, Exs.A.3 to
A.5 are issued based on Exs.A.1 and A.7, and these documents do not in any way  
establish the possession of the petitioner over the petition schedule property.
Except, Exs.A.3 to A.5, the petitioner has not filed any authentic material  to
show that she is in possession of the petition schedule property as on the date
of filing of the suit.  As such, it cannot be said that the petitioner has prima
facie proved her possession over the petition schedule property.  So far as the
admission of respondent No.1 in his deposition and the report of the Advocate
Commissioner in O.S.No.234 of 1979 on the file of the Subordinate Judge, Guntur
are concerned, the petitioner has to bring the same on record during the course
of the trial in the suit and it cannot be dealt with at this interlocutory
stage.

11.     In view of the above discussion and having regard to the facts and
circumstances of the case, this Court is of the considered opinion that the
impugned order passed by the trial Court does not suffer from any illegality or
irregularity warranting interference from this Court, and as such, the C.M.A. is
liable to be dismissed.

12.   In the result, the C.M.A. is dismissed.  There shall be no order as to
costs. Since the suit is of the year 2004, the trial Court is directed to
dispose of the same as expeditiously as possible, uninfluenced by any of the
observations made by this Court in this order.

_________________  
B.N. RAO NALLA, J  
Date:04.10.2012

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