THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.761 of 2011 June 17, 2011 Between: Khazi Ahmed Basha, S/o.late Khazi Mohiddin Basha ...Petitioner AND H.M.Basha Khan @ ;Malak Basha Khan, S/o.Malak Kamal Khan And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.761 of 2011 ORDER: The petitioner is the plaintiff. He filed a suit for perpetual injunction. He also filed interlocutory application being I.A. No.569 of 2008 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) for ad interim injunction restraining the respondents/defendants 1 and 2. The Court of the Junior Civil Judge, Vayalpad allowed the application on 21.10.2008. The defendants’ miscellaneous appeal being CMA No.1 of 2009 on the file of the Court of the Senior Civil Judge, Piler was allowed setting aside the order of the trial Court, against which the plaintiff filed the instant civil revision petition under Article 227 of the Constitution of India. The case of the petitioner, in the trial Court, is as follows. The suit schedule property originally belonged to Kamal Khan. His three sons – Ghouse Khan, Asadulla Khan and Basha Khan – partitioned the property among themselves. Ghouse Khan executed a gift deed on 19.1.2006 in respect of his share of Acs.1.25½ in favour of Asadulla Khan, who gifted the entire property admeasuring Acs.3.95½ to his wife Beebijan under gift deed dated 26.8.2006. She in turn executed a gift deed on 12.10.2006 in favour of her brother Khader Basha, who again executed a gift deed dated 07.12.2006 in favour of his wife Shamshad Begum. Under the gift deed dated 25.1.2007, Shamshad Begum gifted the property to the plaintiff. He is in possession and enjoyment of the property raising dry crops and the defendants are interfering with the property. The respondents/defendants opposed the application for injunction denying partition. They also denied the right of Ghouse Khan for Acs.1.25½ and further allege that the registered gift deed executed in favour his brother-in-law was nominal and it was never acted upon. The main contention of the defendants was that the land in S.No.88 is joint family property and that there are five cousins claiming the property from Pyari John who is the daughter of Kamal Khan. While denying the possession of the plaintiff it was alleged that the second defendant is cultivating the land admeasuring Acs.0.83½ on behalf of his mother. Before the trial Court, the plaintiff marked Exs.A1 to A16 and defendants marked Exs.B1 and B2. The trial Court came to the conclusion that the plaintiff has shown prima facie case and balance of convenience and accordingly allowed the application. The appellate Court recorded a finding that the property continued to be joint family property and that there cannot be any injunction against cousins. The learned Counsel for the petitioner contends that the Court below did not appreciate Ex.A9 gift deed executed by Shamshad Begum in favour of the petitioner and failed to consider Exs.A11 to A15 which show the possession of the petitioner. A perusal of the order of the trial Court would show that all the documents are not considered at all. The learned trial Judge enumerated Exs.A1 to A16 and observed that the petitioner is prima facie in possession of the schedule property. The reasoning given to such conclusion is, however, conspicuous by its absence. The appellate Court, on the other hand, correctly came to the conclusion that Ex.A1 ignores the right of four daughters of Kamal Khan and, therefore, the partition as pleaded among the sons of Kamal Khan cannot be believed. There is no dispute that the respondents were not put on notice before issue of Ex.A2 patta and Ex.A3 pattadar passbook. The first appellate Court considered all these matters and came to the conclusion that when the sisters of Asadulla Khan were denying right in the property, the petitioner could not maintain the injunction against the respondents. The issue is one of appreciating the evidence brought in by the rival parties and the appellate Court gave cogent and convincing reasons to hold against the petitioner. The finding recorded by the appellate Court does not suffer from any error apparent on the face of the record. The civil revision petition is misconceived and is, accordingly, dismissed. _______________ (V.V.S.RAO, J) June 17, 2011 YS