HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.324 of 2011 Date : 5-8-2011 Between : K.China Venkat Reddy .. Petitioner And K.Laxma Reddy .. Respondent Counsel for petitioner : Sri M. Rama Rao Counsel for respondent : Sri Jasthi Suresh Babu The court made the following: ORDER: This Civil Revision Petition is filed against order dated 22-9-2010 in C.M.A.No.19/2009 on the file of the learned Principal District Judge, Nalgonda, confirming order dated 17-6-2008 in I.A.No.302/2007 in O.S.No.107/2007, on the file of the learned Junior Civil Judge, Nalgonda. The plaintiff in the suit is the petitioner. The respondent is the defendant in the suit. For convenience, they are referred to as they are arrayed in the suit. The plaintiff filed the suit for perpetual injunction restraining the defendant and his men from interfering with his peaceful possession of the plaint property bearing No.6- 8-38, comprising 398 sq. yards out of Sy.No.1262 of Ravindranagar colony, Nalgonda Town (for short “the suit property”). The plaintiff filed I.A.No.302/2007 for temporary injunction restraining the defendant from interfering with his possession and enjoyment of the suit property. It is the case of the plaintiff that he is the absolute owner and possessor of the suit property and was running a nursery school for small children therein, that the said nursery school was temporarily closed down as the asbestos sheets roof was damaged, that the plaintiff has removed all the old and damaged asbestos sheets to be replaced with new sheets and has also removed a portion of the compound wall on the north-east corner side to install a new gate as there is more open space on that side, that when he allegedly started installing a new gate on the north-east corner by engaging labourers on 1-3-2007, the defendant has come to the suit property and tried to dispossess him and that therefore the plaintiff has filed the suit for perpetual injunction. As noted above, the plaintiff also filed I.A.No.302/2007 for temporary injunction. The defendant filed a counter-affidavit in the I.A. wherein he denied the ownership of the plaintiff with respect to the suit property. It is the case of the defendant that the wife of the plaintiff owned and possessed an extent of Ac.2- 00 in Sy.No.1262 of Pangal Revenue village, that she (the plaintiff’s wife) converted the said land into house plots during 1985-86 and sold away the plots to needy persons, that out of the said house plots the plaintiff’s wife sold away two plots bearing Nos.1 and 9, measuring 271 and 204 sq.yards respectively to Smt.Thera Renuka Devi through registered sale deeds bearing document Nos.3174/1986 and 3175/1986, that the said Smt.Renuka Devi has given General Power of Attorney (G.P.A.) in favour of one Ch.Venkanna s/o.Malla Reddy vide registered G.P.A. No.68/88, dated 24-9-1988 and the said G.P.A. sold away plot No.1 to one Edulla Anantha Reddy through registered sale deed bearing document No.6933/1988 dated 14-10- 1988 and plot No.9 to one V.Narsi Reddy through registered sale deed bearing document No.6934/1988, dated 14-10- 1988. It is the further case of the defendant that the wife of the plaintiff kept plot No.10, measuring 208 sq. yards, which is on the western side of plot No.9, for herself, that he (the defendant) has purchased house plot bearing No.9, measuring 197 sq. yards from Vutukuri Narsi Reddy, for a valuable consideration through registered sale deed bearing document No.9558/2006, dated 9-11-2006 and that since the date of purchase he is in continuous possession and enjoyment of the said plot. The defendant further pleaded that in the month of January 2007 when he started construction of compound wall on the western side of his plot the plaintiff tried to interfere with his possession and therefore he has approached Nalgonda II Town police on 6- 1-2007 and submitted a report against the plaintiff. Thereafter, the defendant completed construction of the compound wall and erected a gate in the north-east portion of wall and obtained permission from the Municipality, Nalgonda vide proceedings No.G1/367/2007, dated 28-3- 2007 for construction of a house in his plot No.9. The defendant specifically pleaded that house bearing No.6-8- 38 is no way concerned with the suit property and electricity service connection No.2796 and the bills filed by the plaintiff have nothing to do with the suit property. On behalf of the plaintiff, he has filed Exs.P-1 to P-19 and on behalf of the defendant he has filed Exs.R-1 to R-9. On a consideration of the submissions made on behalf of the parties and the documentary evidence, the trial court has held that the plaintiff is neither the owner nor possessor of the suit property and that he has approached the court with unclean hands by suppressing the real facts. The lower appellate court upheld the said order in C.M.A.No.19/2009. At the hearing, Sri M.Rama Rao, the learned counsel for the plaintiff, strenuously submitted that both the courts below have committed a serious error in giving a conclusive finding that the plaintiff has no title to the suit property. He also submitted that having appointed an Advocate- Commissioner, the trial court has failed to even advert to his report, apart from failing to consider and discuss Ex.P-19 photographs. Sri Jasthi Suresh Babu, the learned counsel for the defendant, submitted that the plaintiff failed to substantiate that the suit property and property bearing H.No.6-3-38 are one and the same. The learned counsel has drawn the attention of this court to the various findings rendered by the courts below to substantiate his contention that while the plaintiff may be the owner of premises bearing No.6-8-38, in the guise of enjoying the said property, he has started encroaching into plot No.9, which belongs to the defendant. I have carefully considered the submissions of the learned counsel for the parties with reference to the orders passed by the courts below. The plaintiff filed documents such as Ex.P-1 – Certificate issued by the Municipality, Nalgonda, Exs.P-2 to P-6 – Property tax receipts, Ex.P-7 to P-16 – Electricity demand notices and receipts, Exs.P-17 and P-18 – Valuation certificates and Ex.P-19 – Photograph with negative. The Advocate-Commissioner who inspected the suit property inter alia observed that he could not locate the municipal door number and electricity supply connection number on the walls of the suit property and that he has verified the photographs furnished by the plaintiff with the physical features of the suit property. Even though the trial court has not discussed the said report of the Advocate- Commissioner, the lower appellate court has given a finding that as the Advocate-Commissioner failed to locate the property and correlate the same with premises bearing No.6-8-38, the said report does not advance the case of the plaintiff. Both the courts below have discussed in detail the documentary evidence produced by the plaintiff and have concurrently found that the plaintiff failed to establish that those documents pertain to the suit property. From the pleadings and the material on record, it is clear that there is a serious dispute regarding the identity of the property. While on one side it is the case of the plaintiff that the suit property is premises bearing No.6-8-38 with 398 sq. yards, it is the case of the defendant that the suit property belongs to him as it relates to plot No.9 comprising 197 sq. yards. In the absence of specific material which prima facie proves the case of the plaintiff that the suit property is the same as premises bearing No.6-8-38, he is not entitled to an order of injunction. As noted above, both the courts below in one voice rejected the case of the plaintiff that the suit property is house bearing No.6-8-38. Indeed, the trial court has gone to the extent of finding that plot No.9 belongs to the defendant and that the plaintiff, with a mala fide intention has sought to join the plot Nos.9 and 10, in order to show that the suit property forms part of premises bearing No.6-8-38. Unless the suit is finally disposed of after allowing the parties to let in oral evidence, it is not possible for this court to upset the concurrent findings of fact regarding the identity of the property. Therefore, I do not find any merit in the Civil Revision Petition except to the extent that the finding of the courts below that the plaintiff is not the owner of the suit property, ought not to have been rendered. The courts below ought to have considered the material with reference to the prima facie case, elements of balance of convenience and irreparable injury in stead of rendering conclusive findings on the ownership. The findings of both the courts below to the extent of ownership of the suit property are set- aside. The orders of both the courts below, in all other respects, are confirmed. The Civil Revision Petition is accordingly partly allowed to the extent indicated above. As a sequel, CRPMP No.458/2011 is disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date : 5-8-2011 AM