THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION Nos.2410 and 2416 OF 2011 Dated: 26.07.2011 Between: Syed Jameeluddin ..... Petitioner AND Smt. Noor Jahan and 5 others ..... Respondents The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION Nos.2410 and 2416 OF 2011 COMMON ORDER: These two Civil Revision Petitions are directed against the orders, both dated 30.05.2011, in C.M.A.No.1 of 2011 and C.M.A.No.2 of 2011 respectively passed by III Additional District Judge, Kurnool at Nandyal, whereunder and whereby the orders dated 31.12.2010 passed by the Principal Junior Civil Judge, Nandyal, Kurnool District in I.A. No.1242 of 2010 in O.S.No.494 of 2010 and I.A.No.1543 of 2010 in O.S.No.494 of 2010 respectively. 2. The petitioner in both the revisions is the plaintiff and the respondents herein are the defendants, in the suit. For better appreciation of the facts, the parties are hereinafter referred to, as they are arrayed in the suit. 3. The plaintiff filed Original Suit No.494 of 2010 on the file of the Principal Junior Civil Judge, Nandyal, seeking permanent injunction restraining the respondents from interfering his possession and enjoyment over the plaint schedule properties, and filed I.A.No.1242 of 2010 therein seeking temporary injunction pending disposal of the suit. The defendants filed I.A.No.1543 of 2010 in the said suit seeking to restrain the plaintiff from making the constructions in the plaint schedule properties. The trial Court, upon hearing both sides and considering the material on record, dismissed the application filed by the plaintiff and allowed the application filed by the defendants. Challenging the same, the plaintiff filed Civil Miscellaneous Appeal Nos. 1 of 2011 and 2 of 2011 before the appellate Court, which, by the impugned orders, dismissed the appeals confirming the orders of the trial Court. 4. The brief facts that are necessary for disposal of the present revision petitions may be stated as follows:- It is the case of the plaintiff that Syed Moinuddin, Smt. Rahamath Bee, wife of Syed Muzaffaruddin and the defendants partitioned the open site of the two dilapidated houses bearing Nos.166 and 167 under three unregistered partition deeds dated 08.05.2001. In the said partition, Item No.1 of the plaint schedule open site fell to the share of Syed Moinuddin. Item No.2 of the plaint schedule open site fell to the share of Smt. Rahamath Bee, wife of Syed Muzafaruddin, and the open place situated on the northern side of Item No.2 of the plaint schedule open site, fell to the share of the defendants. On 30.10.2010, Syed Moinuddin gifted Item No.1 of the plaint schedule open site to his sister Smt. Syed Shamshunnisa, wife of Sultanuddin, under a registered gift deed dated 30.10.2008 and delivered possession to his sister and on 30.05.2009 she gifted the same to his son Syed Jameeluddin- plaintiff and delivered vacant possession of the site to him. On 31.06.2009 Smt. Shamshunnisa executed a registered rectification deed in favour of the plaintiff in respect of Item No.1 of the plaint schedule site. Rahamath Bee, wife of late Syed Muzaffaruddin gifted Item No.2 of the plaint schedule open site to the plaintiff under a registered gift deed dated 19.01.2009 and delivered vacant possession of the same to him and since then he is in possession and enjoyment of the property. Item Nos. 1 and 2 of the plaint schedule properties are open sites constituting a single plot and since the date of the gift deeds, the plaintiff is in possession and enjoyment of the property. But the defendants are trying to interfere with his peaceful possession and enjoyment of the property. Hence, the plaintiff filed O.S.No.494 of 2010 for permanent injunction against the defendants. It is the case of the defendants that Syed Sayeeduddin, Syed Muzaffaruddin, Syed Moinuddin, who are the sons of Khateeb Syed Rasheeduddin, acquired the houses bearing Nos.166 and 167 under a gift deed dated 11.06.1949 executed by Syed Ayesha Bee and since then they are in possession and enjoyment of the property. Syed Sayeeduddin died on 01.06.1967 leaving behind him defendants as his legal representatives and accordingly, his one-third share in the said two houses bearing Nos.19/166 and 19/167 fell in the hands of the defendants. Syed Muzaffaruddin died on 23.12.1997 leaving behind his wife Smt.Rahamath Bee as his sole legal representative and his one-third share in the houses bearing Nos.19/166 and 19/167 fell in the hands of his wife. Syed Moinuddin died on 02.04.2009. 5. The defendants filed I.A.No.1543 of 2010 in O.S.No.494 of 2010 for grant of temporary injunction stating that they never accepted the partition deeds dated 08.05.2001 and by playing fraud, the plaintiff wants to knock away the plaint schedule property and as there was no division between the defendants and plaintiff, the contention of the plaintiff that there was a partition of the properties on 08.05.2001, cannot be accepted and in spite of issuing of legal notice as the plaintiff is proceeding with the construction without any right and that the plaint schedule properties are joint properties in which the defendants are having joint rights. Hence, they sought temporary injunction against the plaintiff restraining him from making any constructions in the plaint schedule property. 6. Learned counsel for the petitioner/plaintiff contended that by virtue of the unregistered partition, some of the sharers have agreed for division of properties and in that division, the plaintiff got the present plaint schedule property and therefore, from 2001 onwards, he has been in exclusive possession and enjoyment of the property and that he has got a right to make any constructions over the said property. 7. On the other hand, the learned counsel appearing for the respondents/defendants contended that the property was not divided by metes and bounds and in pursuance of the unregistered partition deeds, the share of each sharer has not been determined and that partition deeds are not full and final in view of the fact that some of the sharers have not signed in the partition deeds. 8. Ordinarily, this Court would not interfere with the concurrent findings of both the Courts below unless it is shown that the findings are not based upon material on record or perverse findings were given. The plaintiff filed the suit for permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of the plaint schedule property and the defendants filed written statement stating that the property has not been divided by metes and bounds. In fact, both the Courts below came to the conclusion that there was no complete partition among the sharers and therefore, the plaintiff cannot claim any exclusive right over the plaint schedule property. Accordingly, I.A.No.1242 of 2010 in O.S.No.494 of 2010 filed by the plaintiff for temporary injunction was dismissed by the trail Court, and the same was confirmed in C.M.A.No.1 of 2011 filed by the plaintiff and I.A.No.1543 of 2010 in O.S.No.494 of 2010 filed by the defendants for temporary injunction restraining the plaintiff to make any further constructions was allowed and the same was confirmed in C.M.A No.2 of 2011 filed by the plaintiff. 9. Admittedly, the partition in three unregistered deeds dated 08.05.2001 is not complete because all the sharers have not signed on the partition deeds. Unless all the sharers to the property agreed for division of property by metes and bounds, it cannot be said that it is a complete partition. So, for effecting a complete and final partition, there must be a division of property by metes and bounds and allotment of share to each sharer. Therefore, when there is no final partition, the question of giving a particular share to one of the parties may not arise. The plaintiff claimed that in pursuance of the partition deeds, he was given the plaint schedule property towards his share, but that aspect has to be decided in the suit itself. But, prima facie, when all the sharers have not agreed for the total partition, it can be deemed that the property continues to be joint property. So, in such circumstances, one of the sharer cannot file a suit for injunction against the other sharer. The trial Court, upon considering the material available on record, rightly granted injunction in I.A.No.1543 of 2010 in O.S.No.494 of 2010 and there are no grounds to interfere with the same. Therefore, on these aspects, both the Courts below rightly came to the correct conclusion and hence, the orders need no interference by this Court. 10. Accordingly, both the Civil Revision Petitions are dismissed. There shall be no order as to costs. ______________ K.C.BHANU, J Dated: 26th July, 2011 Ivd THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION Nos.2410 and 2416 OF 2011 26th July, 2011 Ivd