IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5390 OF 2009 Between: Jannapureddy Narotham Reddy .....PETITIONER AND Jannapureddy Venkata Reddy and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5390 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the judgment, dated 08.07.2009, in C.M.A.No.39 of 2006, on the file of II Additional District Judge, Warangal, in setting aside the order, dated 05.06.2006, in I.A.No.545 of 2005 in O.S.No.334 of 2005, passed by the Principal Junior Civil Judge, Warangal, wherein the petition filed to grant ad-interim injunction restraining the petitioner/defendant from interfering with the peaceful possession and enjoyment of ‘A’ and ‘B’ schedule properties, was dismissed. 2. The brief facts that are necessary for disposal of the present revision petition may be stated as follows: Plaintiff No.1 and the defendant are brothers. Plaintiff No.2 is the wife of plaintiff No.1. According to the plaintiffs, in the year 1995, all the joint family properties were partitioned among the family members and defendant took his share as per the partition and mutated his name and the name of his wife in the Revenue Records. In order to provide security and welfare to plaintiff No.2, plaintiff No.1 allotted part of his share in favour of plaintiff No.2 and she has been in peaceful possession and enjoyment of the same. On 13.03.2005, when plaintiff Nos.1 and 2 were supervising the suit schedule property, the defendant interfered with their peaceful possession and asked them to vacate the suit schedule property. Hence, the suit was filed against the defendant for perpetual injunction restraining him from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. In the said suit, I.A.No.545 of 2005 was filed by plaintiff Nos.1 and 2 for ad-interim injunction and I.A.No.742 of 2005 was filed by the defendant claiming relief of perpetual injunction against plaintiff Nos.1 and 2. The defendant filed counter affidavit in I.A.No.545 of 2005 denying the averments made in the petition affidavit and contended that there was no partition between plaintiff No.1 and the defendant. No oral evidence was adduced on behalf of either side except marking Exs.P1 to P6 on behalf of plaintiffs and Exs.R1 to R21 on behalf of the defendant. The trial Court, after considering the evidence on record, came to the conclusion that the prima facie case has to be decided in the suit itself; that plaintiff Nos.1 and 2 have not proved their exclusive possession over the suit schedule property and no injury would be caused even if the injunction is not granted and accordingly, dismissed the applications. Against the order in I.A.No.545 of 2005, plaintiff Nos.1 and 2 preferred C.M.A.No.39 of 2006. During the pendency of the appeal, as plaintiff No.1 died, his legal representatives i.e., appellant Nos.3 and 4 were brought on record. The appellate Court, vide the impugned judgment, reversed the findings of the trial Court and granted interim injunction in favour of the plaintiffs, while dismissing the injunction application filed by the defendant. Challenging the same, the present revision petition is filed by the defendant. 3. Learned counsel for the petitioner/defendant contended that since the petitioner herein is disputing about the alleged oral partition that took place in the year 1995, every member of joint family is said to be in joint possession of the property and therefore, the question of granting injunction against co-owners does not arise and hence, he prays to set aside the impugned judgment. 4. On the other hand, learned counsel for respondent Nos.2 and 3, contended that Exs.P1 to P4 would clearly go to show that plaintiff No.1 is in possession and enjoyment of the suit schedule property; that in pursuance of the oral partition that took place in the year 1995, plaintiff No.1 was inducted into possession; that the appellate Court rightly considered the material on record in granting interim injunction in favour of the respondents/plaintiffs; that therefore, there are no grounds to interfere with the impugned judgment and hence, he prays to dismiss the revision petition. 5. Grant or refusal of injunction is covered by three well established principles, namely, (1) prima facie case (2) balance of convenience with regard to the possession as on the date of filing of the suit and (3) irreparable injury if the injunction is not granted. 6. Coming to prima facie case, the case of plaintiff No.1 is that he got right over the suit schedule property by virtue of an oral partition said to have taken place between his family members in the year 1995; and that in pursuance thereof, he was inducted into possession of the suit schedule property. In view of the fact that he is in exclusive possession and enjoyment of the suit schedule property, he is entitled to protect his possession. On the other hand, the specific case of the petitioner/defendant is that there is no such partition as alleged by plaintiff No.1; that the properties are not divided by metes and bounds and therefore, the petitioner/defendant is the co-owner along with the respondents/plaintiffs. There is a serious dispute with regard to prima facie case. It has to be decided during the trial of the suit because basing on the allegations in the affidavit filed in support of the petition and the counter filed by the petitioner/defendant, the prima facie case cannot be determined in a case of this nature. 7. Coming to the balance of convenience, the respondents/plaintiffs claim to be in possession and enjoyment of the suit schedule property by virtue of Exs.P1 to P4. But, at the same time, the petitioner/defendant also filed Ex.R1, which shows that he was in possession and enjoyment of the suit schedule property in the year 2002 and 2003. In view of these sub-contradictory pahanies, even the prima facie possession also cannot be determined effectively basing on the documents available. 8. Coming to irreparable injury, even though the injunction is not granted, it would not cause any hardship to any one of the parties. Even though one person is in possession and enjoyment of the suit schedule property, ultimately the person who succeeds in the suit is entitled for a share and he can also claim mesne profits, if any, after determination of shares of the parties in the suit. Therefore, no injury would be caused to anybody if the injunction is not granted. Therefore, the impugned judgment is liable to be set side. 9. Accordingly, the Civil Revision Petition is allowed setting aside the impugned judgment, dated 08.07.2009, in C.M.A.No.39 of 2006, on the file of II Additional District Judge, Warangal. Since the suit is of the year 2005, the trial Court shall make an endeavour to dispose of the suit preferably within a period of six months from the date of receipt of a copy of this order, after giving opportunity to both the parties. There shall be no order as to costs. _______________ K.C. BHANU, J February 17, 2011 MD THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5390 OF 2009 February 17, 2011