THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3997 of 2009 Dated : 24th January 2011 Between: 1. Smt.Zainab Bee & Ors. ..... Petitioners AND 1. Mulla Rahman & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3997 of 2009 ORDER: This Civil Revision Petition is directed against the judgment dated 25.06.2009 passed in C.M.A.No.21 of 2008 on the file of the Senior Civil Jude, Gadwal, whereby and whereunder the learned Senior Civil Judge allowed the Civil Miscellaneous Appeal filed by the appellants setting aside the order dated 19.07.2008 passed in I.A.No.108 of 2007 in O.S.No.101 of 2007 on the file of the Junior Civil Judge, Gadwal, and thereby granted temporary injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule lands by the plaintiffs pending disposal of the suit. 2. Background facts, in a nutshell, leading to filing of this revision by the petitioners, in brief are: The respondents herein are the plaintiffs and whereas, the petitioners herein are the defendants in O.S.No.101 of 2007 on the file of the Junior Civil Judge, Gadwal. The plaintiffs filed the suit for perpetual injunction. It is the case of the plaintiffs that the suit schedule lands are inam lands and they are the inamdars. They have been in possession and enjoyment of the suit schedule lands. They produced Photostat copies of the Pahanies for the years 2001-2002, 2002-2003, 2003-04, 2005-06 and 2006-07 issued by the revenue authorities to speak of their possession over the lands. Earlier they filed the suit being O.S.No.99 of 2004 seeking injunction. The trial Court refused to grant injunction and thereupon, they carried the matter in appeal (CMA No.9 of2004) on the file of the Senior Civil Judge, Gadwal. Their appeal came to be allowed on 04.07.2005 and subsequently, the suit ended in dismissal for default. After the dismissal of the suit, the defendants started interfering with their possession in respect of the suit schedule lands on 12.05.2007. Therefore, they filed a fresh suit being O.S.No.13 of 2007 before the Vacation Judge at Mahabubnagar. The learned Vacation Judge entertained the suit as O.S.No.13 of 2007 and subsequently the suit came to be transferred to the file of the Junior Civil Judge, Gadwal and the suit is renumbered as O.S.No.101 of 2007. The plaintiffs also filed I.A.No.108 of 2007 under Order 39, Rules 1 and 2 r/w.151 CPC seeking temporary injunction pending disposal of the suit. The defendants filed written statement resisting the claim of the petitioners. It is the plea of the defendants that the 1st defendant and her sister Gudamma got the suit schedule lands under a registered deed executed by her mother Madina Bee. They also got the pattadar passbooks in their names. They relied on the entries in pahanis for the years 1983-84, 1994-95, 1995-96, 1996-97 and 2006-07. According to them, the plaintiffs are unconcerned with the suit schedule lands and they have no claim over the suit schedule lands. Before the trial Court, the plaintiffs marked 3 documents as Exs.P1 to P3 and the defendants marked 10 documents, as Exs.R1 to R.10. The trial Court dismissed the application filed by the plaintiffs, by order dated 19.07.2008, on the ground that Exs.P1 and P2 Pahanis for the years 2005-06 and 2006-07 do not show the names of the petitioners as possessors over the suit lands except father’s name of the 1st plaintiff. For better appreciation, I may refer the relevant portion of the order passed by the trial Court, which reads as hereunder: “11. According to the petitioners, the suit lands herein are the Inam lands. No document is placed before this court by the petitioners showing about the issuance of any occupancy rights certificate either to themselves or to any of their ancestors. The petitioners could not plead and state about the original Inamdars of the suit lands. Simply the petitioners claimed that they succeeded the suit lands from their ancestors and except the petitioner No.1, no other petitioner is the child of Mulla Mahammad Sab, Mulla Gani Sab and Mulla Hussain Sab. The petitioners also could not explain the genealogical table of their ancestors and how they succeeded the suit lands and at what rates and shares. Therefore, the pleadings of the petitioners appear to be vague and are bereft of material particulars. 12. Furthermore the Exs.P1 and P2 are not showing the names of the petitioners as the possessors over the suit lands and except the father’s name of the petitioner No.1, no other petitioner’s name is recorded as possessor over any part of the suit lands. Admittedly, the petitioners could not produce any other document or record of title to show that they are the Inamdars over the suit lands. 13. As per the provisions of Section 3 of A.P.(T.A.) Inams Abolition Act, 1955 all the Inams are abolished and the Inam lands shall vest in the state. As such it is incumbent on the part of an Inamdar to apply for the grant of occupancy rights in respect of the Inam land and after the grant of occupancy right certificate only, he is entitled to call as the occupant over the Inam land. Without taking any such recourse, the possessing of Inam land is against the mandate of the said Act. There is no whisper in the petition that whether the petitioners herein applied before the Tribunal concerned to recognize their occupancy rights and for upholding their rights over the suit lands herein. In the absence of any document or material to that effect, I am unable to accept the contention of the petitioners that they are the Inamdars over the suit lands and that they were recognized by the revenue officials in such capacity.” The plaintiffs carried the matter in appeal to the court of the Senior Civil Judge, Gadwal, assailing the order dated 19.07.2008 passed in I.A.No.108 of 2007 in O.S.No.101 of 2007 on the file of the Junior civil Judge, Gadwal. The learned Senior Civil Judge, after referring Exs.P1 to P3, came to the conclusion that the plaintiffs made out prima facie case and balance of convenience in their favour and thereby proceeded to grant temporary injunction setting aside the order dated 19.07.2008 passed in I.A.No.108 of 2007 in O.S.No.107 of 2007, by judgment dated 25.06.2009. Hence, this revision. 3. Notice before admission came to be ordered on 27.8.2009. The respondents entered appearance. 4. On 8.12.2010, learned counsel appearing for the petitioners submitted his arguments. As there was no representation for the respondents on that day, the revision was directed to be listed under the caption `For Orders’ on 15.12.2010. Despite the matter being listed under the caption `For Orders’, there was no representation on behalf of the respondents on 15.12.2010. However, to give one more opportunity to the respondents, the C.R.P was directed to be listed under the caption `For Orders’ on 24.12.2010. Despite the matter being listed under the caption `For Orders’, none appears on behalf of the respondents. 5. Learned counsel appearing for the petitioners submits that the lower appellate Court failed to take note of the fact that the petitioners –defendants filed written statement in the suit and marked Exs.R.1 to R.10 to substantiate their plea and that the lower appellate Court did not consider the documents marked as Exs.R.1 to R.10 on behalf of the appellants-defendants on the ground that they did not file counter in I.A.No.108 of 2007. According to the learned counsel, when once the trial Court allowed the appellants-defendants to mark Exs.R.1 to R.10 to substantiate their plea, it was impermissible for the appellate Court to refuse to refer those documents on the ground that the appellants-defendants did not file separate counter in the interlocutory application. 6. I have gone through the order passed by the trial Court in I.A.No.108 of 2007 as well as the judgment of the lower appellate Court passed in C.M.A.No.21 of 2008. The respondents-plaintiffs did not raise any objection as to marking of Exs.R.1 to R.10 on their behalf. The appellants-defendants placed on record their pleadings by way of written statement in the suit. The trial Court referred the documents filed by the defendants and also the pleadings of the defendants placed on record by way of written statement. Having considered the pleadings of the parties and the documents placed on record, the trial Court came to the conclusion that the plaintiffs failed to prove that they are the Inamdars over the suit land and so also their possession over the suit land, and thereby, proceeded to dismiss their application filed under Order 39 Rules 1 and 2 read with Section 151 CPC, by order dated 19.7.2009. Whereas the lower appellate Court refused to consider Exs.R.1 to R.3 on the ground that the defendants did not file counter resisting the injunction application. 7. Grant or refusal of temporary injunction is covered by three well established principles and they are:- (1)Whether the plaintiff has made out a prima facie case ? (2)Whether the plaintiff would suffer any irreparable injury ? (3)Whether the balance of convenience is in his favour ? 8. A person seeking injunction should establish prima facie case and balance of convenience in his favour and it must be further shown that he would suffer irreparable injury in the event of injunction prayed for is refused. 9. The appellants-defendants had placed on record their pleadings by way of written statement. The trial Court permitted the appellants- defendants to mark Exs.R.1 to R.10 in support of their pleadings. But the lower appellate Court refused to refer Exs.R.1 to R.10 on the ground that the appellants-defendants did not place on record their counter in the interlocutory application. The approach of the lower appellate Court, in my considered view, cannot be sustained. When once the appellants-defendants placed on record their pleadings by way of written statement and marked documents on their behalf, the lower appellate Court is not justified in refusing to consider the documents, which have been exhibited as Exs.R.1 to R.10 on the ground that they did not file counter in the injunction application. 10. In the given facts and circumstances, I am of the view that the matter needs to be remanded to the lower appellate Court for fresh consideration after taking note of the documents placed on record by the appellants-defendants. 11. In the result, the Civil Revision Petition is allowed setting aside the order dated 25.6.2009 passed in C.M.A.No.21 of 2008 on the file of the Senior Civil Judge, Gadwal and C.M.A.No.21 of 2008 is remanded to the Court of the Senior Civil Judge, Gadwal for passing orders afresh after considering the documents brought on record on either side. There shall be no order as to costs. _____________________ B.SESHASAYANA REDDY, J Dt.24-01-2011 CS/RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO.3997 OF 2009 DATED : 24-01-2011