IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY THIRD DAY OF APRIL TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.1508 of 2010 Between: K.Kameswaramma … Petitioner And A.Vidyavathi … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No. 1508 OF 2010 ORDER:- This revision under Article 227 of the Constitution of India by the petitioner/plaintiff to revise the order of the Family-cum-Additional District Judge, East Godavari at Rajahmundry passed in C.M.A.No.34 of 2009, dated 28.01.2010 whereby the appeal preferred by the respondent/defendant was allowed setting aside the order passed in I.A.No.206 of 2009 in O.S.No.369 of 2009 by IV Additional Junior Civil Judge, Rajahmundry granting temporary injunction in favour of the petitioner. For the sake of convenience, the parties herein will be referred to as per their array in the suit. Plaintiff filed the above suit for permanent injunction restraining the defendant not to make any construction in the joint lane PONJF and joint property JIKL of the plaint plan and for a mandatory injunction for removal of constructions made in joint lane PONJF and joint property JIKL of the plaint plan and for removal of bore well in the property EFQP of the plaint plan. Pending the above suit, he filed I.A.No.206 of 2009 for temporary injunction to restrain the defendant and his men from proceeding with illegal constructions in the joint lane PONJF and joint property JIKL and his exclusive property EFPQ. In support of the claim of the plaintiff, he relied upon Exs.P1 to P8, whereas the defendant claimed property under Exs.R1 to R3. The learned trial court granted injunction holding that the disputed construction as well as the disputed bore well were taken up by the defendant while the plaintiff was away from her house and it can be decided in the main suit. The other argument of the defendant that the suit filed by the plaintiff is not maintainable as she has not claimed the relief of declaration, is a matter which could be gone into in the main suit and allowed the I.A. On appeal being filed by the defendant, the lower appellate court on appreciation of the documentary evidence held that when the title of the plaintiff is denied by the defendant by filing registered documents, it is incumbent upon the Court to examine the respective recitals in the sale deeds and come to the conclusion whether they established the title and possession of the respective parties. Digging of bore well and making constructions is not a one-day job and when the plaintiff remained silent spectator, when the works of construction and digging of bore well took place and allowed the defendant to make construction and also to dig bore well, which took considerable time of six months and only with an eye-sore the plaintiff sought for a temporary injunction against the defendant. Holding so, the lower appellate Court allowed the appeal. When the balance of convenience and irreparable injury has not been considered for grant of injunction by the trial Court, the finding recorded by the lower appellate court for vacating the interim order is on the accepted principle that plaintiff should not only establish prima facie title to the property, but also balance of convenience or irreparable injury. The first condition namely prima facie case being sine qua non, the plaintiff has to satisfy atleast two conditions conjunctively and a mere proof of one of the three conditions does not entitle the plaintiff to obtain a temporary injunction in her favour. Since the title of the plaintiff has to be decided in the main suit, whether she is entitled to the suit relief without seeking the relief of declaration is a matter, as observed by the trial court, can be gone into only in the suit. Once the plaintiff failed to establish prima facie case i.e., her succeeding in the suit without seeking such declaration and the balance of convenience is also in favour of the defendant who dug a bore well six months prior to filing of the suit, plaintiff is not entitled to any injunction. No illegality or infirmity is discernable with the finding recorded by the lower appellate court in allowing the appeal, warranting interference by this Court. Accordingly, the civil revision petition is dismissed. The trial court is directed to dispose of the suit uninfluenced by any of the observations made by this Court. No costs. __________________ A.GOPAL REDDY, J 23rd April 2010 Lmv