THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2268 OF 2011 11.08.2011 Between: Konduri Jaya Simha Raju …. Petitioner AND Pithani Lakshmi … Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.2268 OF 2011 ORDER: The defendant is the petitioner in this revision filed under Article 227 of Constitution of India. The respondent/plaintiff instituted O.S.No.668 of 2008 on the file of the Court of the Principal Junior Civil Judge, Kakinada for perpetual injunction. She filed I.A.No.3418 of 2008 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC) for temporary injunction restraining the petitioner and his men from making any constructions in the joint lane ABCD shown in the plaint plan. The trial Court dismissed the application on 25.09.2008. Being aggrieved, the respondent carried the matter in appeal. The same being C.M.A.No.2 of 2009 was allowed granting temporary injunction as prayed for by the respondent. This revision is against the said order dated 23.02.2011 in C.M.A.No.2 of 2009 passed by the Court of the IV Additional District Judge, Kakinada. The respondent purchased the plaint schedule house under registered sale deed dated 04.03.1978 from one V.Annapoornamma. On the western wall, there were three windows and door way opening into immediately adjoining joint lane, which was used by her vendor Annapooranamma and the neighbour Mamidala Narayana Murthy. The petitioner proclaimed that he will change the physical features by constructing a drainage channel and trying to lay sunshades so as to touch the wall of the respondent’s house. Therefore, she sought injunction. The petitioner filed counter opposing the injunction. He alleged that his wife Konduri Sumathi got the house under gift deed dated 07.02.2007 from Madugula Venkata Ramana, that she constructed two-storeyed building in the site originally belonging to Mamidala Narayana Murthy. He also gave details about the previous sales in respect of the property got by his wife and further alleged that his wife constructed two-storied house. Prior to that, the respondent requested to allow her scavengers to clear her latrines through the property of Sumathi, which was agreed to. After construction of the house, when arrangements were being made for Gruha Pravesham and plastering work was going on, the respondent objected and filed the suit. As noticed supra, the trial Court declined injunction whereas the appellate Court granted injunction. The counsel for petitioner/defendant submits that the Civil Miscellaneous Appeal itself is not maintainable before the Court of IV Additional District Judge as the real owner Sumathi was not made a party, that the building and drainage canal in the lane in question was already constructed and therefore, grant of injunction is not warranted. He also submits that though evidence was produced by way of photographs, the same was not considered by the appellate Court. As noticed by the learned appellate Judge, the respondent filed I.A.No.3905 of 2008 to implead Konduri Sumathi and the same was allowed on 17.11.2008. This itself would show that Sumathi was very much party to the suit. But she did not choose to file C.M.A. Curiously her husband, who is the first defendant in the suit filed C.M.A. If Sumathi is real owner by virtue of the alleged gift deed dated 07.02.2007, she ought to have filed the present Civil Revision Petition. She did not do so. Secondly, the gift deed dated 07.02.2007 was not produced before the appellate Court. As rightly observed by the learned appellate Judge unless boundaries in the gift deed are verified, the plea of the petitioner that the lane on the western side of the house of the respondent belongs to Sumathi cannot be accepted. After considering Ex.R.1 photograph, the lower Court came to the conclusion that the same does not reflect the disputed lane and that Ex.R.3 is subsequent to the filing of the suit. The lower appellate Court after considering Ex.P.1, sale deed, under which the respondent purchased the property, recorded a finding that there is a clear recital as to the existence of a joint lane between the houses and therefore, prima facie case was proved. Certainly, if the petitioner or his wife construct drainage in the joint lane, it would cause legal injury to the respondent/plaintiff, and therefore, the appellate Court was justified in granting injunction. The exercise of discretion is sound and judicious and no interference is called for. The civil revision petition is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 11.08.2011 Pln