IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.5004 of 2011 Between: Pothula Krishna Reddy .. Petitioner AND M. Balraj .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.5004 of 2011 ORDER: The civil revision petition is directed against the dismissal of C.M.A.No.3 of 2009, on the file of the Senior Civil Judge’s Court, at Wanaparthy, by the judgment, dated 05.09.2011, by which the order and decree in I.A.No.196 of 2008 in O.S.No.135 of 2008, on the file of the Junior Civil Judge’s Court, Kollapur, dated 30.04.2009, dismissing the petition for an interim injunction without costs were confirmed. 2. The plaintiff/petitioner in the suit for a permanent injunction in respect of Ac. 0.02 guntas in S.No.760/A1 and Ac. 1.13 guntas in S.No.762/A and House No.4-83 (old) 4-79 (new) of Pangal Village and Mandal sought for an interim injunction against the defendant from interfering with his possession and enjoyment in I.A.No.196 of 2008. He claimed to be the owner and possessor of the property on the bequest by the original owners Pothula Kista Reddy and Shankaramma under a Will, dated 19.10.1990. It was also stated that Pothula Kista Reddy obtained a decree in O.S.No.181 of 2007 against two others in respect of the property with which the defendant was no way concerned. 3. The defendant resisted the request contending that the original owners of the suit property and the plaintiff were not on cordial terms and the execution of any Will, dated 19.10.1990, did not arise. The defendant claimed an Agreement of Sale with the original owner Pothula Kista Reddy on 23.08.2007 under which, part of the consideration to a tune of Rs.80,000/- was paid and possession was delivered to him. The death of the vendor on 07.04.2008 disabled him from obtaining a sale deed, but he was continuing in possession. 4. During the enquiry before the trial Court, Ex.A-1-Will, Exs.A-2 and A-3-Death Certificates of Pothula Kista Reddy and Shankaramma, Ex.A-4-copy of the Record of Rights and Ex.B-1-Copy of Pahani of 2007-08 were marked. 5. The trial Court rendered its order referring to the absence of any dispute about the original ownership of the property and noting that Ex.B-1-Pahani is the only document of relevance for determining the dispute to contradict which no document has been filed by the plaintiff to probablise his possession. As prima facie legitimate and exclusive possession over the suit lands by the date of the suit was probablised to be with the defendant by Ex.B-1, the injunction petition was dismissed without costs. 6. In appeal, the impugned judgment was rendered after referring to the rival contentions and grounds of appeal in detail and again noting that Pothula Kista Reddy was the original owner of the property and that Pothula Kista Reddy and his wife died issueless. The conflict in claims of the plaintiff and the defendant under the Will and the Agreement of Sale was also noted and the Appellate Court also observed that the plaintiff did not file any document to prove his possession as on the date of the filing of the suit. The documents tendered for consideration during the hearing of the appeal were referred to and the Appellate Court could deduce from the same also that one way or the other, the plaintiff was not mentioned as the enjoyer of the suit properties even in these documents. The Appellate Court noting P. Kista Reddy, S/o. Papi Reddy, to have been still shown as the pattadar and the deletion of the name of the defendant in the Pahanies by the Revenue Divisional Officer to be subsequent to the suit, opined that all these aspects being taken into consideration including the plea that the subsequent registered Gift Deed by the plaintiff in favour of his son and daughter on 23.07.2010 divested the plaintiff of any interest or right in the properties, primarily the absence of any document of possession for the plaintiff with reference to the date of filing of the suit cannot be ignored. Referring to the decisions cited before it, the Appellate Court opined that the cases are distinguishable and in any view, the considerations referred to therein will be taken up for consideration during trial and not relevant at the stage of interlocutory adjudication. The civil miscellaneous appeal was, accordingly, dismissed without costs. 7. The plaintiff challenged the said order in this revision contending that the Will executed by P. Kista Reddy gave the right to the plaintiff to file the suit which was after the death of P. Kista Reddy in April, 2008, due to which the name of the plaintiff could not have been found in the Pahani of 2007-08. He claimed Ex.B-1 to have been brought into existence and the principle that “possession follows title” was ignored in spite of the admitted ownership of P. Kista Reddy. The plaintiff further claimed that the additional documents filed by him before the Appellate Court were not considered and the validity of the Will could not have been impeached by a stranger. The unregistered Agreement of Sale relied on by the defendant which was not filed into Court could not have been the basis for any claim for possession and the defendant admitted before the Revenue Authorities about the possession of the plaintiff. Therefore, the plaintiff desired the Appellate order to be reversed. 8. Sri P.V. Sanjeeva Rao, learned counsel for the revision petitioner and Sri V. Hanumanth Rao, learned counsel for the respondent are heard. 9. Both the learned counsel not only drew attention of the Court to the considerations that governed the findings of the trial and the Appellate Courts, but also the subsequent happenings between the parties. 10. The point for consideration is as to in what manner the rights and interests of both the parties can be safeguarded and protected, pending final determination of the suit for permanent injunction on merits. 11. The original ownership of the property with P. Kista Reddy is not in dispute and similarly, the death of P. Kista Reddy and his wife issueless is also not in dispute. While the plaintiff claims to have been bequeathed the suit properties under a Will executed in his favour, the defendant admittedly is not in any way related to P. Kista Reddy or Shankaramma in any manner. His connection with the suit property is said to be based on an Agreement of Sale, dated 23.08.2007, under which part payment of the consideration to a tune of Rs.80,000/- was claimed to have been made in favour of P. Kista Reddy. Sri V. Hanumanth Rao, learned counsel for the defendant has brought to notice that the said Agreement of Sale, dated 23.08.2007, is the subject of a suit for specific performance in O.S.No.22 of 2009, on the file of the Senior Civil Judge’s Court, at Wanaparthy, in which the plaintiff herein figures as the first defendant and, therefore, it will be inappropriate to express any opinion on the truth, validity and enforceability of the said Agreement of Sale in this interlocutory adjudication. The copies of the pleadings in the said suit produced during hearing for reference show that the defendant and the plaintiff herein were reiterating their respective claims herein in that suit also. The disputes between the parties were stated by both the learned counsel to have also further resulted in a private complaint by the defendant against the plaintiff and two others in C.F.R. No.2135 of 2010, on the file of the Judicial Magistrate of First Class, Kollapur, and also a legal notice from the plaintiff to the defendant, dated 09.08.2010. The order of the criminal Court, dated 15.11.2010, in C.F.R. No.2135 of 2010, and the copy of the legal notice, dated 09.08.2010, show that subsequent to this suit, there were events between the parties leading to an Agreement of Sale, dated 06.03.2010, between the plaintiff and the defendant under which an advance of Rs.2,00,000/- was claimed to have been paid by the defendant to the plaintiff. While not going into the truth or otherwise of the various allegations made therein, it is, thus, to be noted that the parties are seriously at dispute concerning the right to be in possession of the suit properties herein. 12. Insofar as the material that was placed before the trial Court is concerned, Ex.A-1-Will or Exs.A-2 and A-3-Death Certificates could not have thrown any light on the question of possession of the suit properties by the date of the suit, while Ex.A-4-Record of Rights was not stated to be indicating any probability of either party being in possession as on the date of the suit. The trial Court noted that it was only Ex.B-1-Copy of Pahani of the year 2007-08 that indicated the defendant to be probably in possession prima facie by the date of the suit and the contents of Ex.B-1 are not disputed even by the plaintiff who is trying to explain in the grounds of revision the reason for the absence of any reference to his name in the Pahani of 2007-08, his rights having arisen only on the death of P. Kista Reddy in April, 2008. The conclusion of the trial Court, therefore, that prima facie, the plaintiff’s possession was not probablised could not have been faulted. It is true that before the Appellate Court, some more documents have been placed for perusal and consideration, but the Appellate Court also noted that none of these documents threw any light on the question of possession of the plaintiff by the date of the suit. The order of the Revenue Divisional Officer either concerning the entry in favour of the defendant or ordering deletion of his name was noted to be subsequent to the suit which, therefore, could not have been a factor which the Appellate Court could have considered. The question of possession on the date of the suit could not have been decided to the contrary, the deletion of the entries not leading to any automatic presumption of discontinuance of possession prima facie found in favour of the defendant by the date of the suit. The very events between the parties subsequent in the suit may not suggest the absence of any interest for the defendant or the exclusive interest of the plaintiff alone in the suit property. If the defendant had paid Rs.2,00,000/- under a fresh arrangement entered into after the suit, he would not have obviously done so without having some physical control over the suit property and the claim that the plaintiff executed a registered Gift Deed in favour of his son and daughter on 23.07.2010 being not in dispute, the contention that it is for the son and daughter of the plaintiff now to assert their rights in the suit property also cannot be lightly brushed aside. In any view, these questions have to be gone into during trial either in the suit for permanent injunction or in the suit for specific performance to which the parties had already taken recourse to, the efforts for settlement through Lok Adalat or through elders having admittedly not fructified into any agreed settlement and it may be suffice, for the purposes of this determination, to protect the properties from being changed in their nature or title, pending final determination of these suits. Insofar as the possession is concerned, if the claim of the learned counsel for the revision petitioner that the lands are fallow, as sought to be probablised even through the photographs produced during the course of hearing is true, it may not matter materially whosoever is in possession if the nature of the property and the title to the property are preserved in the same state as they stand as of now and if the claims of the learned counsel for the respondent/defendant that paddy is being raised in the land are true, the protection of the nature and title of the property may not interfere with any interest of the defendant in continuing to cultivate the land during the pendency of the suits because there was no order of prohibition against him either from the trial Court or the Appellate Court. 13. Under the circumstances, pending the suit for permanent injunction and the suit for specific performance, it will be in the interests of justice to protect the rights and interests of both the parties by directing both of them not to change the nature of the property in any manner and not to effect any alienation of any sort in respect of the suit property in any manner, pending final determination of O.S.No.135 of 2008, on the file of the Junior Civil Judge’s Court, Kollapur, on merits in accordance with law. 14. Accordingly, the Civil Revision Petition is dismissed without costs, but both the parties to the civil revision petition are directed not to change the nature of the property in any manner and not to indulge in any alienation of any sort, pending determination of O.S.No.135 of 2008, on the file of the Junior Civil Judge’s Court, Kollapur, on merits in accordance with law. The trial Court shall make every endeavour to make such determination as expeditiously as possible, preferably within a period of six (6) months from the date of communication of this order. ___________________ G. BHAVANI PRASAD, J Date: 19th December, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.5004 of 2011 Date: 16th December, 2011 KL