HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3508 OF 2011 DATE:09-09-2011 BETWEEN Shaik Madarbee …Petitioner AND Dodda Rajyalakshmi …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.3508 OF 2011 ORDER: This revision is filed by the plaintiff under Article 227 of Constitution of India challenging the orders of Senior Civil Judge, Nandigama dated 3.6.2011 in allowing C.M.A.No.6 of 2010 setting aside the injunction granted in favour of the petitioner-plaintiff by the Principal Junior Civil Judge, Nandigama dated 5.8.2010 in I.A.No.49 of 2010 in O.S.No.9 of 2010. Plaintiff-petitioner herein filed the above suit for injunction simplicitor in which, she filed I.A.No.49 of 2010 seeking temporary injunction stating that she is the absolute owner and possessor of the plaint schedule property having acquired the same under Ex.P.1- registered settlement deed dated 5.1.2007 executed by her husband- Shaik Yakobu Saheb and on such delivery of the property, she constructed a thatched house and running a tea canteen therein and since then she has been in possession and enjoyment of the same. She got telephone connection and electricity connection for the plaint schedule house in the name of her husband. The defendants- respondents herein are having a house-site on western side of the plaint schedule property and though they have no manner of right or title over the plaint schedule property, are trying to interfere with her possession over the property and therefore, they should be restrained from interfering with her possession. Contesting the I.A., the defendants-respondents herein filed a counter denying the averments of the plaintiff. According to them, the land in D.No.370 of Jayanthi village is gramkantam, out of which, the husband of first respondent and father of other respondents, late Dodda Pullaiah was owner of Ac.0.13 cents, who constructed a tiled roof house, two sheds and thatched house therein and was in possession and enjoyment till his death in the year 1985. The said property was also subjected to assessment in the year 1965. Upon the death of Dodda Pullaiah, the property was devolved upon the respondents herein being his heirs and that the property was also mutated in the name of first respondent in the gram panchayat record. Out of the said property, the respondents herein alienated Ac.0.01 cent of land on West-North corner for construction of APSRTC Bus shelter about 10 years back. The certificate issued by the gram panchayat also shows that they are in possession of the property. Petitioner and her husband deceitfully brought into existence a sham and nominal registered settlement deed No.105 of 2007 dated 5.1.2007 to knock away the property and that they mischievously described the eastern boundary as ‘house of Kampa Gopal’, who is another licensee of first respondent and the same is part of Ac.0.12 cents of R & B road towards Peddapuram on east. In para 8 of the counter, it is specifically pleaded that the husband of the petitioner-Yakub Saheb has no sort of right over the suit schedule property, but for permission given by first respondent and that he is not competent to convey any right in favour of the petitioner. The trial Court rightly held that in a suit for injunction, petitioner- plaintiff has to establish her possession over the property in question by filing cogent documents. In the present case, the petitioner by filing Exs.P.1 to P.3 i.e. registered settlement deed, telephone bill and Electricity bill, proved that she is in possession and enjoyment of the suit schedule property. Whether the husband of the petitioner can execute a registered settlement deed or not is a matter to be gone into in the main suit and the validity thereof cannot be considered summarily while deciding the injunction application. The respondents themselves admitted in the counter that possession of husband of the petitioner over the property is permissive and therefore, the petitioner is entitled to maintain possession till the disposal of the suit and accordingly allowed the I.A. On appeal being filed by the defendants- respondents herein, the lower appellate Court gone into the merits of the claim of the plaintiff i.e. the husband of the petitioner has no right to convey the title in favour of the petitioner when he has no title to the schedule property and that he cannot convey the said property in favour of the petitioner under Ex.P.1. Further when plaintiff-petitioner claimed that she is the owner and possessor of the plaint schedule property, how Exs.P.2 and P.3 came into existence in favour of husband of the petitioner in the year 2009-2010 i.e. subsequent to execution of Ex.P.1 has not been explained. Electrical connection and telephone connection stood in the name of husband of the petitioner as seen from Exs.P.2 and P.3 and therefore, they would not help the petitioner to prove her possession and accordingly set aside the injunction granted by the trial Court. When the I.A. is filed seeking temporary injunction restraining the defendants-respondents from interfering with the possession of the plaintiff, what all the plaintiff has to establish is her possession over the suit schedule property as on the date of filing of the suit. In the present case, the petitioner-plaintiff has established that under Ex.P.1- settlement deed executed by her husband, she has been in possession and enjoyment of the schedule property. Whether her husband is competent to execute the said settlement deed or not is a matter that can be gone into during the course of trial, but the same cannot be decided summarily in injunction application as rightly observed by the trial Court. When the defendants-respondents herein admitted in the counter that the possession of husband of the petitioner is permissible as referred to in para 8 and after the death of her husband, she continued to be in possession of the said property, the possession of the petitioner should not be disturbed pending the suit. Learned counsel for the petitioner strenuously contends that the telephone bill is not with regard to the same property and the same pertains to a different property. But to the said effect, no finding has been recorded either by the trial Court or by the lower appellate Court. Suffice it to say, the lower appellate Court went wrong in going into the validity of Ex.P.1-registered settlement deed without there being any evidence adduced by the parties to the said effect. It is the finding of the lower appellate Court that Exs.P.2 and P.3 do not stand in the name of the petitioner and therefore, she failed to prove her possession. Admittedly, telephone connection and electricity connection for the plaint schedule house stand in the name of the husband of the petitioner, but it is not uncommon to continue those bills in the name of her husband, even though he died. That cannot be a ground to disprove the possession of the plaintiff over the suit schedule property. In view of the above, the impugned order passed by the lower appellate Court is set aside and the order passed by the trial Court dated 5.8.2010 in I.A.No.49 of 2010 is restored. The learned Principal Junior Civil Judge, Nandigama shall decide the suit as expeditiously as possible uninfluenced by any of the observations and findings made while deciding the impugned I.A. The revision is accordingly allowed. No costs. _______________ A. GOPAL REDDY, J. SEPTEMBER 09, 2011 Tsr.