IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE FIFTH (5TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.847 of 2010 Between: Pantham Chittiyya & another …Petitioners And: Singuluri Pulla Rao & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.847 of 2010 ORDER: This revision petition is directed against the order dated 08.09.2009 in CMA No.10 of 2006 on the file of the Senior Civil Judge, Tadepallegudem, wherein the said appeal filed by the respondents herein, was allowed setting aside the order dated 05.04.2006 in IA No.2713 of 2005 in OS No.652 of 2005 on the file of the Principal Junior Civil Judge, Tadepallegudem. 2. Heard both sides. Perused the record. 3. The petitioners herein filed suit for permanent injunction restraining the respondents/defendants from interfering with their possession and enjoyment of the plaint schedule property i.e., item No.1 residential house bearing D.No.2-94 in an extent of 55 sq.yards in V.A.Puram and item No.2 thatched house bearing D.No.2-95 in an extent of 55 sq. yards. Along with the pliant, they filed IA No.2713 of 2005 under Order 39 Rules 1 and 2 CPC seeking temporary injunction. 4. According to the petitioners, the schedule property is their ancestral property and that they have been enjoying the same since times immemorial and also perfected title by adverse possession. The plaintiffs contend that the first respondent-first defendant who is maternal uncle of plaintiffs was also having thatched house to the west of the schedule property, where there is path way on the south belonging to both and that after the marriage of 2nd plaintiff, who is brother of first plaintiff, they were living separately in items 1 and 2. According to the plaintiffs, they partitioned the schedule property and the partition deed executed on 11.12.2005 and that the respondents started interfering with the plaintiffs enjoyment of the items 1 and 2 because of the dispute over the common path way. 5. The respondents filed counter, opposing the claim and contending that the claim of the plaintiffs, as to the adverse possession is vague and bereft of any details and is also inconsistent with the claim that it is their own ancestral property. The respondents further contended that the 2nd plaintiff never constructed any thatched house in item No.2 and that the schedule property is the ancestral property of Singuluri Nagabhushanam, father of the first respondent and it never belonged to the plaintiffs’ family, as they never resided in the suit village V.A.Puram and they are permanent residents of Kaspa Pentapadu. According to the respondents, the plaintiffs’ father Ramakrishna intended to contact a second marriage, after the death of his first wife Seethamma and Singuluru Nagabhushanam brought the plaintiffs, who are children of Ramakrishna through Sithamma, to his house at V.A. Puram and got them up and he performed their marriages and that Nagabhushanam died in November 2004 leaving behind his wife-Mangaraju, son and four daughters. It is absurd to contend that the petitioners alone succeeded to the property. According to the respondents, Nagabhushanam, father of the first respondent, constructed a terraced building about 18 years back and raised a thatched house on the north about six years back and after the death of Nagabhushanam, 2nd respondent occupied the terraced building and in that thatched house Nagabhushanam permitted the 2nd petitioner to stay and in the site of the respondents, there are two thatched huts, wherein first respondent is residing in one hut and cooking in another hut. The respondents further pleaded that on 16.10.2004 Nagabhushanam executed a registered settlement deed in favour of his grand sons S.V.Nagaraju and S. Satyanarayana confirming absolute rights in the suit property and put them in possession thereof and on coming to know about the execution of the same, the plaintiffs fraudulently and collusively brought into existence partition deed dated 07.11.2005. The respondents further contended that as Nagabhushanam was not a literate, he used to take the assistance of the first petitioner, who was in the same village, for payment of taxes and electricity charges and the first petitioner abused the trust and confidence reposed on him and obtained receipts in his name for payment of taxes and electricity charges. Thus, according to the respondents, the petitioners are not having any rights of ownership or possession over the suit property and the 2nd petitioner was only permitted by Nagabhushanam to live in the thatched house, as he has no shelter and such possession of the 2nd petitioner is only permissive in nature. 6. During enquiry, Exs.P.1 to P.26 were marked on behalf of the petitioners and Exs.R.1 and R.2 were marked on behalf of the respondents therein. The learned Principal Junior Civil Judge by order dated 05.04.2006 granted temporary injunction, holding that there is a prima-facie case in favour of the plaintiffs as also balance of convenience and if the injunction is not granted, the plaintiffs may be dispossessed from the suit property. Aggrieved by the same, the defendants preferred appeal in CMA No.10 of 2006. The learned Senior Civil Judge, by impugned judgment dated 08.09.2009 allowed the appeal and set aside the order of injunction granted by the trial Court. Assailing the same, the plaintiffs preferred the present revision. 7. Learned counsel for the petitioners-plaintiffs would contend that the partition deeds Exs.P.25 and P.26 dated 07.11.05 are the basis for the plaintiffs claim and the receipts Exs.P.1 to P.24 showing the payment of house taxes and the electricity charges evidenced the plaintiffs possession and enjoyment of the suit property and therefore, the appellate Court ought not to have reversed the order of the trial Court granting injunction. Learned counsel for the respondents-defendants on the other hand would contend that before seeking temporary injunction, the plaintiffs have to necessarily establish a prima-facie case in their favour and that the claim of the plaintiffs as set out in the plaint regarding their title is vague and self-contradictory. He would further contend that the very contention of the respondents that the receipts for payment of electricity charges were obtained by the 2nd petitioner fraudulently in his name abusing permissive possession he was given over the thatched house i.e., 2nd item and also betraying trust and confidence reposed in him by the first respondent’s father Nagabhushanam and therefore, the existence of the receipts in the name of the 2nd petitioner would not clothe him with any rights. 8. It is axiomatic that the plaintiffs seeking temporary injunction have to establish a prima-facie case in their favour, which is sine quo non for grant of injunction and they must also show that the balance of convenience lies for granting injunction in their favour. According to the plaintiffs, as per the averments in the affidavit filed in support of the application, the suit property is their ancestral property and after the death of their father, the property devolved upon the plaintiffs and they partitioned the same among themselves under Exs.P.25 and 26 dated 07.11.2005 and they have been enjoying the items 1 and 2 of the plaint schedule separately. While asserting that the suit property is ancestral, the plaintiffs have curiously pleaded that they have been enjoying the suit property since times immemorial and perfected their title by adverse possession. The two pleas simply do not go together for the simple reason that the question of acquiring prescriptive title by adverse possession on one’s own property does not arise at all. Necessary details as to how and in what manner and from what date and adverse to whose interest the plaintiffs have perfected their title by adverse possession have not been disclosed in the plaint. As rightly contended by the learned counsel for the respondents, the inconsistent and self-contradictory claims made by the plaintiffs regarding their alleged title over the suit property would defeat their claim for injunction, as they have not made out a prima-facie case based on a definite plea regarding the source and origin of title. The counter filed by the respondents would disclose that apart from the plaintiffs, there are several other legal heirs, who are named therein and the said fact has not been disputed or refuted by the plaintiffs. When that is so, it is not known how the plaintiffs alone became entitled for the suit property, which according to them, is the ancestral property. 9. The defendants would contend that the partition deeds Exs.P.25 and P.26 dated 07.11.2005 have been brought in to existence by the plaintiffs collusively after coming to know of the execution of the registered gift deed dated 16.10.2004 by Nagabhushanam father of the first respondent in favour of his grand sons i.e. first respondent’s children, conveying absolute rights of ownership and possession. According to the respondents, the suit property belonged to the first respondent’s father Nagabhushanam, who is the maternal uncle of the petitioners, and as the petitioners father was intending to marry second time after the death of the mother of the petitioners, the petitioners were brought by Nagabhushanam to his house at V.A.Puram from Kaspa Pentapadu and brought them up and performed their marriages and permitted the 2nd petitioner to reside in a portion i.e. thatched house-Item No.2 and taking advantage of the same and in utter disregard of all the services rendered by Nagabhushanam as a maternal uncle, the plaintiffs have played fraud on him and obtained receipts Exs.P.1 to P.24 in their names and brought into existence partition deeds Exs.25 & P.26, to defeat the gift deed Ex.R.1 executed by Nagabhushanam in favour of his grand sons i.e., children of first respondent. 10. The truth or otherwise of the allegation of fraud and collusion, can be ascertained only on evidence that may be adduced during the course of trial. The fact, however, remains that Exs.P.25 and P.26 based on which the plaintiffs filed suit was executed about one year after execution of Ex.R.1 gift deed by Nagabhushanam in favour of his grand sons. In view of Ex.R.1, it cannot be said that Exs.P.25 and P.26 would constitute the basis for the plaintiffs to claim a prima-facie case in their favour, especially, in the back drop of their plea of prescriptive title by adverse possession. In Exs.P.25 & P.26, the property is described as ancestral and when it is so, it is not known how the plaintiffs can claim a prescriptive title by adverse possession. Learned Senior Civil Judge has rightly observed that the plaintiffs have not made out a prima-facie case in their favour and grant of temporary injunction based on the receipts for payment of taxes and electricity charges under Exs.P.1 to P.24, ignoring Ex.R.1 settlement deed, is not sustainable. No doubt in a suit for permanent injunction, the question as to who is in possession assumes importance. At the same time, when both parties claims title over the same property through different sources, the question of title also assumes importance, at least prima-facie. Before seeking an order of injunction under Order 39 Rules 1 and 2 CPC, the plaintiffs have to necessarily establish a prima-facie case in their favour. The nature of their claim pertaining to the title and the source thereof and the consistency of the plea, are certainly factors relevant while considering the existence of a prima-facie case in plaintiffs favour. When the plaintiffs have based their claim on two diametrically opposite source of title and that too by way of vague, ambiguous pleas and bereft of details, it cannot be said that the plaintiffs have made out a prima-facie case in their favour for grant of injunction. 11. The impugned order of the learned Senior Civil Judge setting aside the order of injunction granted by the trial Court, in the facts and circumstances, does not call for any interference. At any rate, the suit being of the year 2005 and also being one for permanent injunction and contentious issues being raised by the parties, which ought to be necessarily adjudicated upon evidence during the course of trial, it is considered just and proper to direct the trial Court to dispose of the suit at an early date, preferably within a period of four months, from the date of receipt of the copy of this order. The trial Court shall dispose of the suit on its own merits, without in any way being influenced by any of the observations made herein above. 12. In the result, the civil revision petition is dismissed. The interim injunction granted earlier is vacated. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 05.07.2011 bss