THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition Nos.4572 , 4587, 4680 & 4694 of 2011 (Dated : 04-11-2011) Between: Rokkam Venkateshwara Rao (Petitioner in C.R.P.No.4572 of 2011) Rokkam Naveen (Petitioner in C.R.P.No.4587 of 2011) Rokkam Sai Kumar (Petitioner in C.R.P.No.4680 of 2011) Nalla Indira viswanath (Petitioner in C.R.P.No.4694 of 2011) …Petitioners A n d Smt. Srilatha Muvva D/o Bapineedu ….Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition Nos.4572 , 4587 4680 & 4694 of 2011 COMMON ORDER: These Civil Revision Petitions are directed against the common order dated 16-09-2011 passed in C.M.A.Nos.17 of 2011, 18 of 2011, 19 of 2011 & 20 of 2011 on the file of VI Additional District Judge, Visakhapatnam, whereby and whereunder, the learned Additional District Judge set aside the common order dated 07.4.2011 passed in I.A.No.492 of 2010 in O.S.No.198 of 2010, I.A.No.518 of 2010 in O.S.No.206 of 2010, I.A.No.520 of 2010 in O.S.No.207 of 2010 and I.A.No.522 of 2010 in O.S.No.208 of 2010 on the file of Senior Civil Judge, at Gajuwaka and vacated the interim injunction granted in favour of the plaintiffs and dismissed the temporary injunction petitions. 2. Rokkkam Venkateswara Rao is the plaintiff in O.S.No.198 of 2010, Rokkam Sai Kumar is the plaintiff in O.S.No.206 of 2010, Nalla Indira Viswanath is the plaintiff in O.S.No.208 of 2010 and Rokkam Naveen is the plaintiff in O.S.No.207 of 2010. Ms. Sri Latha Muvva is the defendant in all the suits. The plaintiffs filed petitions in their respective suits under Order XXXIX Rules 1 and 2 r/w Section 151 CPC for grant of temporary injunction restraining the defendant, her agents from interfering with their peaceful possession and enjoyment of the respective house site in occupation of each of them. Each of the plaintiffs claims 1258 square-yards of open plot in Survey No.124/1. According to them, Rokkam Radha Krishna is the owner of the land admeasuring Ac.14-00 cents in Survey No.124/1 and he gifted 1258 square yards each under gift deeds dated 01.7.2009, which have been exhibited as Ex.A-1 and Exs.A-10 to A-12. The plaintiffs took the plea in each of their respective suit that the defendant tried to interfere with their possession by removing the survey stones existing at northern side. For better appreciation, I may refer the relevant portion of the plaint pleading in O.S.No.208 of 2010, wherein Rokkam Naveen is the plaintiff, and it is thus:- “e) The plaint schedule property along with other property situated at northern side of the plaint schedule property, which is in Survey No.124/1 is devolved upon to the plaintiffs through Registered Gift Settlement Deed with document No.1020/2009, dated 01-07-2009 by the said Rokkam Radhakrishna. f) The plaintiff along with other beneficiaries of the properties bifurcated individually through gift settlement deed and they erected fencing at northern side of the plaint schedule property on the other day of registration dated 01-07-2009. g) The Northern side vacant land belongs to the defendant, and the defendant have recently on 28-12-2009 removed the survey stones existing at Northern side of the plaint schedule property of the plaintiff, and warned the watchman for dire consequences, if the plaintiff restored the said Survey stones in future. In other words, the defendant encroached into the plaint schedule property by way of trespass and with ulterior motive of encroachment. h) The plaintiff when enquired about the unlawful acts of the defendant, the defendant stated that the plaint schedule property is purchased by her and further stated that she is having right over the property. The plaintiff made a proposal for survey of the land with the help of Government Surveyor and also requested the defendant to bring their documents to prove the existence of title. i) The defendant instead of coming forward with their documents to prove their title, behaved rudely and expressed that she can carry such actions for forcible occupation of plaint schedule property belongs to the plaintiff. The Revenue Authorities appointed a surveyor for noting down the existing measurements, but the defendant did not cooperative positively. j) The plaintiff submits that the plaintiff is now facing severe threats of invasion into his legal rights over the schedule property. It is a clear threat to occupy the plaint schedule property after removing the boundary poles and with influence in the locality, his actions are a threat of forcible occupation. If materialize, the plaintiff will be put to irreparable loss and injury. The plaintiff is being law abiding citizen, cannot resist the illegal acts of the defendant except to approach this Honourable Court for grant of appropriate orders like injunction.” 3. The defendant filed counter resisting the injunction petitions moved by the plaintiffs in their respective suits. The plea of the defendant in all the injunction petitions is one and the same. 4. It is the case of the defendant that she purchased Ac.2-02 cents comprising Survey Nos.124, 126/5, 126/13, 127/5 and 128/2 under registered sale deed dated 16-5-2005 from R.Ramachandra Rao and others on behalf of Abhishek Business Private Limited, Visakhapatnam. It is also her case that she purchased another extent of Ac.1.80 cents comprising Sy.Nos.127/5,128/2 on behalf of Abhishek Business Private Limited under registered sale deed dated 16.5.2005 executed by Rokkam Ramachandra Rao and others. She also stated in the counter that the original owner Parvathamma obtained necessary electricity service connection, constructed a water tank, dug a borewell and laid pipeline connecting the bore well to the sump. According to her, there are various plants and trees in the land purchased under the registered sale deeds. For better appreciation of the plea of the defendant, I deem it appropriate to refer para (15) of the counter affidavit filed by her in I.A.No.492 of 2010 in O.S.No.198 of 2010, which reads as hereunder:- “15. ………. The Respondent/Defendant humbly submit as follows:- 1. The respondent is one of the Director of M/s. Abhishek Business Pvt. Ltd. and along with her friends and partners purchased an extent of lands as follows from the original land owners. 2. Brief facts of the case: The vendor‘s mother Smt. Parvathamma w/o Ramnadham along with Rokkam Radha Krishna S/o Ram Mohan Rao purchased various extents as mentioned below. S.No. Name of the Purchaser Document No. Survey No. Extent 01 Rokkam Parvathamma & Radhakrishna Rao 2670/1963 124 21.91 BOUNDARIES E: Raparthi Pottivadu S: Konda Yeerabandha W: Chittigedda N: Thatikonda Pattabiramaya 02 Rokkam Parvathamma & Radhakrishna Rao 248/64 126/5,126/13 127/5 0.35+06.75+0.30=Ac.7.40 cents 03 Rokkam Parvathamma & Radhakrishna Rao 1517/1964 128/2 1.0+0.50+0.50= Ac.2.00 cents BOUNDARIES For (Ac.1.0) E : Gundasi Narsamma S : Vendees Zeroythi Land W : Poramboku N : Banjar BOUNDARIES For (Ac.0.50) E: Kotina Ramaswamy Zeroythi Mettu S: Vendees Zeroythi Land W: Gundasi Narsamma Zeroythi Mettu N: Gundasi Narsamma Zeroythi Mettu BOUNDARIES For (Ac.0.50) E: Gundasi Narsamma Zeroythi Mettu S: Gundasi Narsamma Zeroythi Mettu W: Gundasi Narasamma Zeroythi Mettu N: Banjar Total extent of land as per the above documents : Ac.31.31 cents 3. Legal heirs of Rokkam Parvathamma W/o Ramnadham and Rokkam Radhakrishna S/o Ram Mohan Rao appointed their respective GPA holders. 1. Rokkam Ramchandra Rao s/o Ramnadham, vide doct. 452/90 2) Rokkakm Venkateswara Rao s/o Ram Mohan Rao vide Doct No.439/88 and partitioned the above said properties by way of Partition Deed bearing doct. No.2715/1991. In the said Partition Deed the Rokkam Ramchandra Rao was shown as representing on behalf of `A’ party and Rokkam Venkateswara Rao was shown as representing on behalf of `B’ party and partitioned their properties as follows: `A’ Party `B’ Party S.No. Extent (Acres) S.No. Extent (Acres) 01. 124/1 6.16 124/1 14.00 02. 126/5 0.35 ________________________ 03. 126/13 6.75 E: Land in S.No.124/2, Rokkam Ramachandra Rao cultivable 04. 127/5 0.30 land, Land of Raparthi in S.No.133 05. 128/2 2.00 S: Konda Yerrabandha in S.No.123 Ac.15.00 W: Land in S.No.124/1 of `A’ party or `A’ schedule Land N:Thatikonda’s land in S.No.131&131 The defendant, Director of Abhishek Business Pvt. Ltd., along with other individuals purchased the properties from the legal heir and authorized GPA Holder of Rokkam Parvathamma i.e., Rokkam Ramchandra Rao by way of Registered Sale Deeds for a valuable consideration and from the date of purchase, the defendant along with other purchasers are in uninterrupted possession and enjoyment of their respective properties. 4. In the year 2005-06, Ms Srilatha Moova, Director, Abhishek Business Private Limited, along with several other individuals mentioned herein, jointly purchased various properties from Rokkam Ramchandra Rao and from the date of purchase the defendant along with other purchasers is in peaceful possession & enjoyment of their respective properties. 5. The land purchased by the defendant along with the properties purchased by other individuals, substantiates the fact of physical possession and enjoyment of the properties of the defendant and other individuals, the same are fenced with wire and the same fact discloses the defendant’s uninterrupted physical possession and enjoyment of their properties. 6. The vendor of the defendant had an electrical connection in the name of the Parvathamma, original owner, and the same is existing even as on this date of filing this counter before this Court and the vendor of the defendant paid the necessary electricity consumption charges to the concerned authority and the same are continued by the defendant and the receipts are filed herewith for the perusal of this honourable Court. It is further the case of the defendant that a bore connection, a water tank built in the site, a pipleline connecting the borewell to a sump, three hutments with 5-8 people working there at varying times to make bricks, besides planted various plants and Trees , teak plants etc., are all factors of the defendant’s physical possession and enjoyment of the properties. 7. It is submitted that part of the defendant’s land is surrounded by Government land and for the same the defendant made an application to the revenue authorities to consider the case of the defendant for purchase of the said land at Government rate and the same is under active process before the concerned authorities. To that effect the concerned revenue authorities surveyed the land of the defendant and found the physical possession and enjoyment of the defendant in the land purchased by the defendant and necessary documents are filed herewith to substantiate the said fact. 8. it is submitted that the respondent/defendant has not filed any documentary proof of physical possession and enjoyment, and the alleged Gift deed relied on by the plaintiff is fabricated and filed before this Court with ulterior motives and the same is bad and untenable. It is further submitted that the petitioner/plaintiff under the guise of the exparte injunction order of this Court tried to encroach into the defendant’s properties and the same was thwarted by the defendant and her friends and the properties purchased by the defendant along with other individuals are in their respective peaceful possession & enjoyment of the defendant and other purchasers, who purchased along with the defendant. 9. It is submitted that the suit is simplicitor for injunction and the legal principles are well settled that the petitioner/plaintiff shall be in physical possession and enjoyment of the schedule properties besides there shall be prima facie case, balance of convenience and irreparable loss. However, the case of the petitioner/plaintiff, lacks any of these ingredients and is bad both on fact and law. The plaintiff canvassed stereotyped pleadings in all the batch cases and the same are bad for want of bona fides. The documents relied on by the defendant are superior to the documents filed by plaintiff and the same are substantial documents to establish the factum of right, title and more particularly physical possession and enjoyment in an immovable property, quint-eseential factors in a suit for injunction, as such the ex parte order granted in favour of the petitioner/plaintiff is untenable and the same be vacated and dismissed. It is further prayed that the Honorable Court may be pleased to receive additional evidence, with the permission of this Honourable Court, as and when necessary information pertaining to the case of the defendant’s is obtained from the concerned authorities. It is therefore prayed that the Honourable Court may be pleased to vacate the ex parte order granted in favour of the petitioner and dismiss the petition with exemplary costs in the interests of justice. The following are the documents filed to support the case of the respondent/defendant. S.No. Date Type of Document Remarks 01 -04-1997 Receipt issued by Ankapalli Grameena Vidyuut Sahakara Samastha Limited, Kasimkota bearing No.SC No.8 in the name of the defendant’s vendor Original 02 -05-2006 --Ditto- Original 03 19-4-08 --Ditto- Original 04 18-10-08 --Ditto- Original 05 13-9-10 --Ditto- Original 06 6-11-10 Endorsement obtained under RTI Act from the office of The Tahasildar, Gajuwaka & enclosures as follows a) Correspondence between Tahasildar & RDO, VSP b) Combined sketch issued by Tahasildar, GWK Original 07 16-5-05 Sale Deed of the defendant Original 08 9 photos with CD Original 09 20-12-10 Photo Studio receipt Original “ 5. On behalf of the plaintiffs, they marked 12 documents as Exs.A-1 to A-12 and on behalf of the defendant, she marked nine documents as Exs.B-1 to B-9. The learned Senior Civil Judge, Gajuwaka, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiffs in their respective suits satisfied necessary ingredients viz., prima facie case, balance of convenience and irreparable loss and thereby, proceeded to grant temporary injunction in their favour, by order dated 07.4.2011. 6. The defendant filed C.M.A.Nos.17 of 2011, 18 of 2011, 19 of 2011 and 20 of 2011 assailing the order granting temporary injunction in favour of the plaintiffs. The learned VI Additional District Judge, Visakhapatnam, on reappraisal of the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiffs failed to prove their possession over the land in dispute as on the date of filing of the suit and thereby, proceeded to allow the appeals setting aside the order granting temporary injunction by the trial Court and accordingly, dismissed the temporary injunction applications, by common order dated 16-9-2011. Hence, these revisions by the plaintiffs. 7. More precisely; C.R.P.No.4572 of 2011 is directed against the decree and judgment dated 16.9.2011 in C.M.A.No.19 of 2011, C.R.P.No.4587 of 2011 is directed against the decree and judgment dated 16.9.2011 in C.M.A.No.18 of 2011, C.R.P.No.4680 of 2011 is directed against the decree and judgment dated 16.9.2011 in C.M.A.No.17 of 2011 and C.R.P.No.4694 of 2011 is directed against the decree and judgment in C.M.A.No.20 of 2011 on the file of VI Additional District Judge, Visakhapatnam. 8. When the revisions came up for admission, with the consent of counsel appearing for the parties, they are taken up for final disposal. 9. Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent. 10. Learned counsel appearing for the petitioners submits the petitioners/plaintiffs got 1258 square yards each under gift settlement deeds executed by Radhakrishna and the settlement deeds have been executed as Exs.A-1, A-10, A-11 and A-12. A further submission has been made that Radhakrishna got Ac.14.00 cents in Sy.No.124/1 and he executed gift settlement deed in favour of his brothers, sisters and brothers’ children and all the documents executed by him are within the extent allotted to him in the partition deed. The learned counsel would submit that the respondent-defendant having purchased Ac.2-02 cents comprising Sy.Nos.124, 126/5, 126/13, 127/5 and 128/2 made attempts to encroach on the open sites, which are in occupation of the plaintiffs and the attempts made by her have been effectively prevented. His principal contention is that the appellate Court went beyond the pleadings of the parties in observing that Radhakrishna cannot execute settlement deeds without canceling the General Power of Attorney given in favour of Rokkam Venkateswara Rao. In a way, the contention of the learned counsel is that the respondent-defendant never pleaded that Radhakrishna is not entitled to convey the property under registered gift settlement deeds in favour of the petitioners-plaintiffs. He would also contend that the suit schedule properties are vacant properties and therefore, there cannot be any evidence other than the title deeds to speak of the possession. 11. Learned counsel appearing for the respondent-defendant submits that the appellate Court has examined the material brought on record very meticulously and recorded a finding on each point and it is a well reasoned order and therefore, the same is not required to be interfered by this Court in exercise of revisional powers under Article 227 of the Constitution of India. A further contention has been advanced by the learned counsel that Exs.B-8 and B-9 falsifies the version of the petitioners-plaintiffs that the suit schedule lands being vacant. 12. I have given my anxious consideration to the rival contentions advanced by the parties. Before dwelling deep into the rival contentions, the facts, which are not in dispute, are required to be taken note of. Smt. Parvathamma and Rokkam Radhakrishna purchased Ac.31-31 cents comprising Sy.Nos.124, 126/5, 126/13 and 128/2 jointly. It is suffice to note that the extent of Sy.No.127 is Ac.21-19 cents. They partitioned the properties under a registered document bearing No.2715/1991. In the partition deed, Parvathamma got Ac.6-16 cents in Sy.No.124/1 apart from other lands and whereas Radhakrishna got Ac.14-00 in Sy.No.124/1. Parvathamma sold Ac.6- 00 of land to VSP Dairy Employees Welfare Association. What is retained by Smt. Parvathamma is only Ac.0-16 cents. The petitioner-defendant claims to have purchased Ac.2-02 gts., comprising Sy.Nos.124, 126/5, 126/13, 127/5 and 128/2 under registered sale deed dated 16.5.2005, which has been exhibited as Ex.B-7. What is the extent she purchased in each survey number is not indicated in the sale deed. Indeed, she purchased the land in two bits. The 1st bit comprises Ac.1- 75 cents and 2nd bit comprises 27 cents. The schedule to the registered sale deed does not spell out as to what is the extent the respondent-defendant purchased in Sy.No.124/1. At any rate, Parvathamma cannot convey more than Ac.0-16 cents in Sy.No.124/1. Whereas each of the petitioners-plaintiffs is claiming 1258 square yards under gift settlement deeds, which have been exhibited as Exs.A-10 to A-12. The total extent claimed by them comes to 5032 square yards. At any rate, this is not the extent which the respondent-defendant is claiming under Ex.B-7 registered sale deed. The appellate Court has laid much emphasis on Exs.B-8 and B-9 photographs. It is a mater of record that the land purchased by the respondent-defendant is in various survey numbers. Such is the situation, it cannot be said that the photographs are relatable to the extents of land claimed by the petitioners-plaintiffs in Sy.No.124/1. Even Exs.B-1 to B-5 receipts said to have been issued by A.G.V.S.S. Ltd. cannot be said with certainty that they are related to the extent of land claimed by the petitioners-plaintiff in Sy.No.124/1. 13. The three cardinal principles for grant of injunction are:- 1) Prima facie case 2) Balance of convenience; and 3) Irreparable injury The Supreme Court in Dalpath Kumar vs. Prahlad Singh[1] has held that all the three conditions are to be satisfied without emphasizing on any one among the three. The petitioners-plaintiffs by placing on record gift settlement deed are able to prove that they are owners of 1258 square yards each. The property covered under the gift settlement deed is a vacant land. There cannot be any other evidence to speak of the possession except the registered documents. The respondent-defendant is claiming title through Parvathamma. Parvathamma has only Ac.0-16 cents in Sy.No.124/1 after executing registered sale deeds in favour of V.S.P.Dairy Employees Welfare Association. In that view of the matter, it cannot be said that the respondent-defendant purchased 5032 square yards from the legal representatives of Parvathamma. The lower appellate Court has exceeded its jurisdiction in observing that Radha Krishna has no right to execute a gift settlement deed since he has already executed a General Power of Attorney in favour of Rokkam Venkateswara Rao. Since the land is stated to be vacant, I am of the view that both parties have to maintain status quo existing as on this day with regard to the nature and possession of the land. 14. Accordingly, all the Civil Revision Petitions are allowed setting aside the common order dated 16-09-2011 passed in C.M.A.Nos.17 of 2011, 18 of 2011, 19 of 2011 & 20 of 2011 on the file of VI Additional District Judge, Visakhapatnam and directing the parties to maintain status quo existing as on this day with regard to nature and possession of the land in dispute. No order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.04-11-2011 *RAR [1] 1992(1) SCC 719