THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CIVIL REVISION PETITION No.5792 of 2010 Date:27.8.2011 Between: Soma Sivaran ………...Petitioner. And Soma Cinna Subbarayudu and another. …… Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION No.5792 of 2010 ORDER: 1. This revision is directed against the order dated 02.09.2010 passed in C.M.A.No.15 of 2009 on the file of the Principal District Judge, Kadapa, whereby and whereunder the learned Principal District Judge allowed the civil miscellaneous appeal filed under Order 43, Rule 1 of CPC assailing the order dated 25.8.2009 made in I.A.No.362 of 2009 in O.S.No.328 of 2009 on the file of IV Additional Junior Civil Judge, Kadapa. 2. The petitioner is the plaintiff in O.S.No.328 of 2009. He filed the suit for partition and separate possession of her share against his father, brother and sisters. The father and brother who have been arrayed as D1 and D2 resisted the claim of the plaintiff. They took the plea that the suit schedule property originally belonged to Soma Venkata Subbamma and she executed a gift deed in favour of the wife of the 2nd defendant. The plaintiff filed I.A.No.362 of 2009 under Order 39 Rules 1 & 2 read with Section 151 CPC for grant of temporary injunction. The defendants 1 & 2 filed counter resisting the application. 3. On behalf of the plaintiff, one document has been marked as Ex.A1 and on behalf of the respondents, four documents have been marked as Exs.B1 to B4. 4. The learned IV Additional Junior Civil Judge, Kadapa, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiff made out a prima facie case and balance of convenience in his favour and thereby proceeded to grant temporary injunction restraining the respondents from alienating the property by order dated 25.8.2009. The defendants 1 & 2 assailed the order passed in I.A.No.362 of 2009 in O.S.No.328 of 2009 by filing C.M.A.No.15 of 2009 on the file of the Principal District Judge, Kadapa. 5. The learned Principal District Judge, on hearing the counsel appearing parties and on reappreciation of the material brought on record, came to the conclusion that the suit schedule property has been gifted by Soma Venkata Subbamma in favour of the wife of the 2nd defendant and therefore, the question of granting temporary injunction against the defendants 1 & 2 restraining them from alienating the property does not arise. With the above observation, the learned District Judge, proceeded to allow the appeal by order dated 02.9.2010. For better appreciation, the relevant portion of the order passed by the learned District Judge, Kadapa needs to be noted and it is thus:- “The suit in O.S.No.148 of 2001 was laid by Soma Venkata Subbamma. Any decree in the suit binds Soma Venkata Subbamma and all persons claiming through her. The plaintiff, as already pointed out, is claiming a share in the plaint schedule property through Soma Venkata Subbamma. Consequently any decree in O.S.No.148 of 2001 prima facie binds the plaintiff. The plaintiff cannot approbate and reprobate at one and the same. The plaintiff cannot tries to contend on the one hand that as he is not a party to O.S.No.148 of 2001 laid by his mother, he is not bound by the decree therein; he tries to assert at the same time that he has a share in the plaint schedule property as one of the Class-I heirs of some Venkata Subbamma, original plaintiff in O.S.No.148 of 2001. The plaintiff is trying to eat the cake and have it too. Once the plaintiff admits that he is an heir of Soma Venkata Subbamma, the decree in O.S.No.148/ 2001 to which Soma Venkata Subbamma was a party prima facie binds the plaintiff. Whether the second defendant filed the certified copy of the decree and did not file the judgment and did not file the gift deed allegedly executed by Soma Venkata Subbamma in favour of the wife of the second defendant in his context is irrelevant. The decree in O.S.No.148/2001 declared the title of the wife of the second defendant over the plaint schedule property. Albeit the plaintiff is not a party to the same, I am afraid that the decree is biding on the plaintiff as a successor of the estate of Soma Venkata Subbamma.” 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the petitioner/plaintiff submits that the respondents/defendants are instrumental in alienating the suit schedule property to defeat the claim of the petitioner/plaintiff. A further submission has been made that the learned Principal District Judge has not correctly appreciated the material brought on record and thereby erred in interfering with the order passed by the trial Court. 8. As seen from the material placed on record, the respondents 1 & 2 who have been arrayed as defendants 1 & 2 have specifically pleaded that Soma Venkata Subbamma executed a gift deed in favour of the wife of the 2nd respondent/ 2nd defendant and it is the wife of the 2nd defendant who is in possession of the property. 9. The learned District Judge has taken note of this fact and proceeded to set aside the order impugned in the C.M.A.No.15 of 2009. When the respondents 1 & 2 have specifically pleaded that the property has been gifted by Soma Venkata Subbamma in favour of the wife of the 2nd defendant, the question of granting injunction restraining the respondents 1 & 2 from alienating the properties does arise. The learned Principal District Judge is justified in reversing the order passed by the trial Court and refusing temporary injunction. I do not see any valid ground to interfere with the order impugned in the revision. 10. Accordingly, the Civil Revision Petition is dismissed and the trial Court is directed to dispose of the suit uninfluenced by any of the observations made in this revision, within six months from the date of receipt of a copy of this order. No costs. ________________________________ JUSTICE B. SESHASAYANA REDDY Date:27.08.2011 mrb