ORDER 39 RULE 1 &2 - SUIT FOR CANCELLATION OF REG. GIFT DEED AND ALSO FOR PARTITION - We feel that there is nothing wrong in trial Court looking into the evidence of P.W.1 and deciding the issue without reference to the documents, more particularly, Aadhar card, gas connection, correspondence from Margadarsi finance, renewal of driving licence etc., belonging to the appellant – plaintiff. Probably all these documents were marked only to show that the appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the root of the matter, while deciding granting of injunction, in view of the evidence of P.W.1, who is the plaintiff himself. 15. In paragraph 13 of the plaint it has been stated that, the appellant – plaintiff is in possession of the plaint schedule property along with his brother 2nd respondent – 2nd defendant, since the same is a family property. But, in the evidence of P.W.1, it has been elicited that, in the month of November, 2019, he came from U.S.A. He stayed in Gowtham Lodge, Tenali. His own evidence shows that his father is residing in the ground floor portion of the suit property and he also admits that his father gave a report against him in II Town Police Station, Tenali, alleging that the appellant – plaintiff is harassing him. From the above, prima facie, it appears that the plea taken that he is in possession of the property may not be correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one tenant is residing and the tenant is paying rent to his sister through online banking. The evidence also shows that his sister 9 got mutated her name in municipal records in pursuance of Ex.A1 gift deed. Apart from that, she got mutated her name in electricity service records as well. Therefore, prima facie, the evidence of P.W.1 itself shows that he was not in possession of the property. Even as per recitals of gift deed – Ex.A1, the property stands in the name of the 1st respondent – 1st defendant and the possession of the suit schedule property was delivered to her by Vijaya Lakshmi. 16. Apart from all these things it is also to be noted that, appellant – plaintiff also sought partition of the property and allotment of share to him and other respondents – defendants. As per the averments in the plaint, they are in the joint possession of the property. Such being the position, the question of granting temporary injunction against co-owners would not arise.

AP HIGH COURT

AP HIGH COURT

THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR

AND

THE HON’BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

Civil Miscellaneous Appeal No.157 of 2020

Senithangappa Srinivasa Rao

-VS-

Vemulapalli Roja Kishore

JUDGMENT : (per the Hon’ble Sri Justice C.Praveen Kumar)

1. Assailing the order dated 13.2.2020 passed in I.A.No.427

of 2017 in O.S.No.24 of 2017 on the file of the

XI Additional District and Sessions Judge, Tenali, the present

Civil Miscellaneous Appeal is filed under Order 43 Rule 1 C.P.C.

2. The facts, which lead to filing of the appeal, are as under :

 The appellant herein who is the plaintiff in the suit filed

the suit against respondents – defendants for cancellation of a

registered sale deed said to have been executed by one Vijaya

Lakshmi, who is the mother of both parties. According to the

appellant – plaintiff, his parents gave Rs.50,00,000/-, gold and

silver jewellery worth Rs.70,00,000/- on the occasion of

marriage of the 1st respondent – 1st defendant in the year 1993

towards Sthridhana. According to him, the said Vijaya Lakshmi,

who is also mother of the appellant, refused to give ‘A’ schedule

property to the 1st respondent – 1st defendant. It is stated that

the 1st respondent – 1st defendant and her daughter, who is a

Doctor, provided treatment to their mother at Guntur, as she fell

sick due to cancer. The daughter of the 1st respondent – 1st

defendant is said to have caused mental agony, physical

sufferance and mental loss to Vijaya Lakshmi. On account of

negligence, misconduct etc., she died on 2.3.2017. It is pleaded 

 2

that the 1st respondent – 1st defendant, her husband and

daughter kept quiet till their mother became unsound and

unable to acknowledge the worldly affairs and thereafter, got

executed the alleged gift deed in their favour on 22.2.2017.

Hence, he pleaded that, alleged gift deed is not valid, illegal and

unenforceable and accordingly, the same is liable to be

cancelled. It is further stated that, the appellant – plaintiff is

entitled to 1/3rd share in the plaint ‘A’ schedule property by way

of partition and that they are in possession and enjoyment of the

same. It is urged that the 1st respondent – 1st defendant and her

men are making every effort to dispossess the appellant –

plaintiff from the plaint schedule property and are making

efforts to alienate the said property to third parties. Under those

circumstances, he sought for a temporary injunction restraining

the 1st respondent – 1st defendant and her men from interfering

with peaceful possession and enjoyment of the rights of the

appellant – plaintiff in plaint ‘A’ schedule property.

3. The 2nd respondent – 2nd defendant remained ex parte,

while the 1st respondent – 1st defendant filed counter denying

the averments in the petition. It has been stated that the

1st respondent – 1st defendant took every care of her mother and

got her treated in best of the hospitals in Vijayawada and

Guntur. In fact, it is stated that, she also took her mother to

Hyderabad and got her treated in KIMS in the month of July,

2016 and an operation was performed by Dr.Jagadishwar Goud.

As the appellant – plaintiff was in U.S.A. at that time, he may 

 3

not be knowing these facts. It is also stated that, after the

operation, Dr.Jagadishwar Goud advised chemotherapy

treatment to Vijaya Lakshmi, who is the mother of the appellant

– plaintiff and respondents – defendants. After completing check

up, she was brought back to Guntur, where she took treatment

under the supervision of one Dr.Krishna Reddy at Manipal

Hospital, Vijayawada. The serious condition of the mother was

informed to the appellant – plaintiff and the 2nd respondent – 2nd

defendant over phone on 16.1.2017 itself, but, there was no

response. The averments in the counter also show that the suit

property was gifted to the 1st respondent – 1st defendant by

executing a registered gift deed and the allegation that the same

came to be registered when she was in unsound mind is

absolutely false and incorrect. Counter also denies the appellant

– plaintiff being in possession and enjoyment of the suit

property.

4. In support of the petition, Exs.A1 to A8 were marked, while

on behalf of respondents – defendants, Exs.B1 and B2 were

marked. After considering the rival submissions made and the

judgments cited, the trial Court dismissed the said I.A.

Challenging the same, the present Civil Miscellaneous Appeal

came to be filed.

5. Sri M.Chalapathi Rao, learned counsel for the appellant,

mainly submits that, the order under challenge is liable to be set

aside, for the reason that the trial Court did not refer to

documents filed by the appellant, which are placed as Exs.A1 to 

 4

A8. According to him, when the condition of Vijaya Lakshmi

was serious on 16.1.2017 itself, which is evident from the

counter, the question of she executing a registered gift deed on

22.2.2017 is highly improbable. Having regard to the above, he

pleads that, the order under challenge be set aside and the

matter be remanded for fresh consideration.

6. Sri N.Sriram Murthy, learned counsel for the

1st respondent – 1st defendant, would contend that, when suit

properties are in joint possession, as averred in the plaint and

as contended by the learned counsel for the appellant, the

appellant is not entitled for an equitable relief of temporary

injunction against co-owners. He would further submit that,

suit is of the year 2017 and as such the question of granting

injunction after three years would not arise, more so, when the

trial has commenced and the evidence of P.W.1 is complete. In

any event, he would plead that, the requirements for granting

temporary injunction, in a case of this nature, are not fulfilled.

He took us through the contents of the gift deed, evidence of

P.W.1 and the judgments in support of his plea to show that, the

order of the trial court requires no interference.

7. The point that arises for consideration is, “Whether the

appellant – plaintiff is entitled for temporary injunction?”

8. It is to be noted here that, suit is filed for cancellation of a

registered gift deed and also for partition. The fact that the

appellant and respondents are siblings is not in dispute. It is 

 5

also not in dispute that the said Vijaya Lakshmi died on

2.3.2017. The plea in substance of the appellant is, his mother

Vijaya Lakshmi never executed the gift deed, dated 22.2.2017, in

favour of the 1st respondent – 1st defendant, since her condition

was very serious as on 16.1.2017 itself, which fact was informed

to him over telephone and the same is evident from the counter.

9. But, it is to be noted that, though her condition was not

good in the month of January, 2017, she survived for 40 days

thereafter. The averments in the counter show that on

16.1.2017, the 1st respondent – 1st defendant, took her mother

to Dr.Janardhani and N.Srinivasa Rao, who after verifying the

scanning report found that her condition is very serious and to

avoid urinary problem, advised insertion of stunt. Hence, she

was taken to an Urologist by name Visweswara Rao, who

arranged a stunt and thereafter, she was taken to her house. By

this, prima facie, it does not mean that she was not in a position

to move at all on 16.1.2017. Therefore, at this stage, it may not

be proper for us to give any finding as to whether she was in a

position to execute registered gift deed on 22.2.2017. It is for the

civil court to decide the said issue at the time of trial. But, as

things stand today, there is a registered gift deed executed on

22.2.2017 in favour of the 1st respondent – 1st defendant.

10. It is no doubt true that, there is no specific reference with

regard to Exs.A2 to A8 in the order, but, there is a reference to

Ex.A1, which is C.C. of the registered gift deed, dated 22.2.2017.

But, since the trial has commenced and P.W.1 was examined, 

 6

the trial Court looked into the evidence of P.W.1 and decided the

I.A.

11. Learned counsel for the appellant relied upon the

judgment of the Apex Court in ‘Seema Arshad Zaheer vs.

Municipal Corporation of Greater Mumbai1’, where in the

Apex Court held as follows:

“Where the lower court acts arbitrarily, capriciously or

perversely in the exercise of its discretion, the appellate court

will interfere. Exercise of discretion by granting a temporary

injunction when there is "no material", or refusing to grant a

temporary injunction by ignoring the relevant documents

produced. When we refer to acting on "no material" (similar to

"no evidence"), we refer not only to cases where there is total

dearth of material, taken as a whole, is not reasonably capable

of supporting the exercise of discretion. In this case, there was

"no material" to make out a prima facie case and therefore, the

High Court in its appellate jurisdiction, was justified in

interfering in the matter and vacating the temporary injunction

granted by the trial court.”

12. In the above judgment the term used is ‘no material’ for

exercise of its discretion for granting a temporary injunction.

The Hon’ble Supreme Court also refers to cases, where there is

total dearth of material, but also to cases where there is no

relevant material or where the material, taken as a whole, is not

reasonably capable of supporting the exercise of discretion.

13. In the present case, the appellant relied upon eight

documents i.e., Exs.A.1 to A.8. Ex.A.1 is the certified copy of

registered gift deed dated 22.02.2017; Ex.A.2 is the certified

copy of gift deed dated 18.06.2010; Ex.A.3 is the certified copy of

1

 (2006) 5 SCC 282 

 7

cancellation of gift deed dated 16.03.2012; Ex.A.4 is the aadhar

card of plaintiff; Ex.A.5 is the gas connection obtained by the

plaintiff dated 28.04.2000; Ex.A.6 is the letter from Margadarsi

Finance Corporation to the plaintiff dated 12.09.2017; Ex.A.7 is

the driving licence of the plaintiff dated 18.10.1986 and Ex.A.8

is the renewal driving licence of the plaintiff dated 18.10.1986.

Exs.A.1 to A.3 are only copies of the gift deeds. Ex.A.4 is the

aadhar card of the plaintiff; Exs.A.7 and A.8 are the copies of

driving licences of the year 1986; Ex.A.5 is the gas connection is

of the year 2000 and Ex.A.6, is the letter of Margadarsi Finance

Corporation is of the year 2017. All these documents do not

prima facie establish possession of the petitioner with the

subject property. Even according to the plaint filed by the

appellant, the appellant is an NRI, working as a Software

Engineer in US for the last 16 years. He further averred that he

used to visit India in alternative years to take care of his

parents. As per the averments of the plaint, after admitting her

mother in KIMS Hospital, in March, 2016, got her treated and

then went back to USA. According to the plaint averments,

plaintiff came to India again on 02.03.2017 i.e., four days prior

to the death of his mother which was on 06.03.2017. In view of

the said averments in the plaint, the documents relied upon by

the plaintiff are not relevant material. Even if they are taken into

consideration, they are not supporting the case of the appellant

and hence, the judgment relied upon by the appellant does not

come to the rescue of the appellant. 

 8

14. We feel that there is nothing wrong in trial Court looking

into the evidence of P.W.1 and deciding the issue without

reference to the documents, more particularly, Aadhar card, gas

connection, correspondence from Margadarsi finance, renewal of

driving licence etc., belonging to the appellant – plaintiff.

Probably all these documents were marked only to show that the

appellant - plaintiff was residing at the said place. Nonconsideration of these documents, in our view, may not go to the

root of the matter, while deciding granting of injunction, in view

of the evidence of P.W.1, who is the plaintiff himself.

15. In paragraph 13 of the plaint it has been stated that, the

appellant – plaintiff is in possession of the plaint schedule

property along with his brother 2nd respondent –

2nd defendant, since the same is a family property. But, in the

evidence of P.W.1, it has been elicited that, in the month of

November, 2019, he came from U.S.A. He stayed in Gowtham

Lodge, Tenali. His own evidence shows that his father is

residing in the ground floor portion of the suit property and he

also admits that his father gave a report against him in II Town

Police Station, Tenali, alleging that the appellant – plaintiff is

harassing him. From the above, prima facie, it appears that the

plea taken that he is in possession of the property may not be

correct. Apart from that it is also elicited in the crossexamination of P.W.1 that, in the first floor of the property, one

tenant is residing and the tenant is paying rent to his sister

through online banking. The evidence also shows that his sister 

 9

got mutated her name in municipal records in pursuance of

Ex.A1 gift deed. Apart from that, she got mutated her name in

electricity service records as well. Therefore, prima facie, the

evidence of P.W.1 itself shows that he was not in possession of

the property. Even as per recitals of gift deed – Ex.A1, the

property stands in the name of the 1st respondent – 1st

defendant and the possession of the suit schedule property was

delivered to her by Vijaya Lakshmi.

16. Apart from all these things it is also to be noted that,

appellant – plaintiff also sought partition of the property and

allotment of share to him and other respondents – defendants.

As per the averments in the plaint, they are in the joint

possession of the property. Such being the position, the

question of granting temporary injunction against co-owners

would not arise.

17. The issue is no more res integra in view of the judgment of

this Court in Ranukanta Mullaiah v. Sircilla Rajamma and

Anr.2 wherein this Court held as under:

 “11. It is not in dispute that the father of the appellant and

father of the 1st respondent are the sons of Rajaram, and both of

them have succeeded to the entire suit schedule property, except

for one item, and almost an equivalent extent of property held by

the appellant herein. For all practical purposes, the appellant

wanted to exclude the succession of the respondents herein, to

the estate of late Durgaiah. For that, he has taken shelter under

the extension of the 1937 Act, to the Hyderabad State, and the

allegation that Durgaiah died before the said date. By its very

nature, a suit for injunction simplicitor does not permit of an

2

 2006 (6) ALD 113 

 10

adjudication of such important questions, involving the

determination of certain jurisdictional facts, interpretation of the

provisions and expression of view upon the operation of the

provisions also. Having regard to the relationship of the parties, a

presumption needs to be drawn that both of them are co-owners,

if not coparceners, vis-a-vis the suit schedule property, even

assuming that the plea of the 1st respondent as to prior partition

has not been proved. That being the case, the 1st respondent

answered the description of a co-owner, and there was no basis,

on which the relief of perpetual injunction could have been

granted in favour of the appellant.”

18. The Hon’ble Madhya Pradesh High Court in Roop Chand

v. Indradevi and Ors. 3 held as under :

 “16. The result is that, the trial Court simply assumed merely on

the basis of the separate living of the co-sharers that there was a

family settlement between the parties, without any evidence. On

the other hand, the mortgage-deed on record clearly shows that

the house was never partitioned nor there was any family

settlement to give independent portions to the co-sharers for their

independent business and dealing with. Mere separate living did

not raise any presumption for family settlement. As earlier

pointed out, the mortgage-deed is admitted on record and para 8

of the mortgage-deed clearly demolishes the theory of any family

settlement. As such, it is established on record that the house

was never partitioned between the co-sharers. Also there was no

family settlement for independent dealing with the portions given

to the four brothers for living, and therefore, the suit for partition

was maintainable and decree for partition ought to have been

passed by the trial Court. The injunction granted by the trial

Court is also uncalled for in view of the fact that no injunction

could be granted in favour of one of the co-sharers against the

other, unless there was a finding that the share of one of the cosharers was either partitioned or made separate by family

arrangement. In this case, there is no proof for either partition or

family settlement, and therefore, no injunction could be granted

to any of the co-sharers against others.”

3

 AIR 1997 MP 200 

 11

19. In Jail Singh & Ors. v. Gurmej Singh 4 the Apex Court

held as under :

“7. The principles relating to the inter-se rights and liabilities of

co- sharers are as follows:

(l) A co-owner has an interest in the whole property and also

in every parcel of it.

(2) Possession of joint property by one co-owner is in the eye

of law, possession of all even if all but one are actually out of

possession.

(3) A mere occupation of a larger portion or even of an entire

joint property does not necessarily amount to ouster as the

possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is

ouster of a co-owner by another. But in order to negative the

presumption of joint possession on behalf of all, on the

ground of ouster, the possession of a co-owner must not

only be exclusive but also hostile to the knowledge of the

other as, when a co-owner openly asserts his own title and

denies, that of the other.

(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property

except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a

husband like manner not inconsistent with similar rights of

other co-owners.

(7) Where a co-owner is in possession of separate parcels

under an arrangement consented by the other co-owners, it

is not open to any body to disturb the arrangement without

the consent of others except by filing a suit for partition.

8. It is thus evident that when a co-sharer is in exclusive

possession of some portion of the joint holding he is in possession

thereof as a co-sharer and is entitled to continue in its possession

if it is not more than his share till the joint holding is partitioned.

Vendor cannot sell any property with better rights than himself.

As a necessary corollary when a co-sharer sells his share in the

joint holding or any portion thereof and puts the vendee into

possession of the land in his possession what he transfers is his

4

 2009 (1) SCJ 714 

 12

right as a co-sharer in the said land and the right to remain in its

exclusive possession till the joint holding is partitioned amongst

all co-sharers.”

20. In view of the judgments referred to above and having

regard to answers elicited in the evidence of P.W.1, and the

averments in the plaint, prima facie, this Court is of the opinion

that, the appellant – plaintiff is not in possession of the property,

and as there cannot be an injunction against co-owners,

the question of granting an injunction as sought for would not

arise.

21. Accordingly, the Civil Miscellaneous Appeal is dismissed.

Since the suit is of the year 2017, and as the examination of

P.W.1 is over, the trial Court may take steps for disposal of the

suit as early as possible, uninfluenced by the observations,

made if any, in the order. No order as to costs.

_______________________________

JUSTICE C.PRAVEEN KUMAR

________________________________________

JUSTICE KONGARA VIJAYA LAKSHMI

Date : 07.10.2020

skmr