HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.999 OF 2009 DATED:25-09-2009 BETWEEN: K.Ashok Kumar …Appellant AND N.Anjaiah …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR C.M.A. No.999 OF 2009 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Plaintiff, who is unsuccessful in obtaining an injunction from the lower Court filed this appeal assailing the orders of V Senior Civil Judge, City Civil Court, Hyderabad, dated 6.8.2009 dismissing I.A.No.771 of 2009 in O.S.No.931 of 2009 filed under Order XXXIX Rules 1 and 2 C.P.C. The appellant-plaintiff instituted the above suit to declare him as absolute owner and possessor of suit schedule property i.e. house bearing municipal No.13-6-183 and 184 admeasuring 122 sq.yds. consisting of a shed, situated at Upper Basti, Karwan, Hyderabad and for perpetual injunction restraining the respondent-defendant from interfering with his peaceful possession and enjoyment over the same. Pending the suit, he filed I.A.No.771 of 2009 seeking temporary injunction restraining the respondent-defendant from interfering with his peaceful possession and enjoyment over the suit schedule property contending that he acquired the suit schedule property through a registered gift settlement deed, dated 22.10.2003 executed by his mother-K.Sathamma. According to plaintiff, earlier to that, his father, mother and himself continued to be in possession of the suit schedule property. After execution of the registered gift settlement deed, he applied to Greater Hyderabad Municipal Corporation for mutation and accordingly, the property was mutated in his name on 19.12.2003. According to him, the old documents were misplaced long back. It is alleged that behind back of the appellant, the respondent got cancelled the mutation made in his favour, and that on coming to know about the cancellation, he got issued a legal notice to the Municipal Corporation on 6.4.2009, to which, the Corporation issued a letter dated 27.4.209 with false averments. Hence, the respondent may be restrained from interfering with his possession. The respondent-defendant contested the I.A. by filing a counter affidavit contending that the alleged gift deed is a created one with mala fide intention to grab the suit schedule property. According to him, the suit schedule property is very old and in dilapidated condition with country tiles. The father of this respondent N.Sathyanarayana purchased the suit schedule property through a registered sale deed vide document No.2014 of 1353, dated 8.8.1953. After such purchase, his father let out the property to various tenants and lastly it was let out to K.Sathyanarayana, the father of the appellant-plaintiff in the year 1964 on a monthly rent of Rs.130/- and the same had been increased from time to time. This respondent, after the death of his father in the year 1968, used to collect the rents from K.Sathyanarayana-tenant, and that after his death in the year 1980, his wife-Sathamma, the mother of the plaintiff became tenant of the premises and she was paying rents to him through her sons. However, the mother of the plaintiff-Sathamma vacated the said house in the year 2007 as it was in dilapidated condition and shifted to the house of her son bearing municipal No.13-6-186, Upper Basthi, Karwan, Hyderabad, which is on the eastern side of the suit schedule property. On vacating the suit schedule property by the mother of the appellant-plaintiff, he demolished the house with a view to make a new construction. On verification of the municipal records, as the name of the appellant-plaintiff was mutated in records, he immediately lodged a complaint on 28.1.2009 with the Commissioner and Special Officer, Greater Hyderabad Municipal Corporation to cancel the said mutation made in favour of the plaintiff as he obtained the same by playing fraud. On his complaint, the municipal authorities revoked and retained the name of one Narayana, the vendor of the father of the respondent in the municipal records. It is contended that the father of this respondent could not mutate his name in the municipal records in respect of the suit schedule property and as such the assessment continued to be in the name of his vendor-Narayana. On such revocation, this respondent paid the property tax on 28.1.2009. To substantiate the respective pleas, no oral evidence has been let in, but the appellant-plaintiff filed Exs.P.1 to P.11, whereas, the respondent-defendant filed Exs.R.1 to R.15. The lower Court after considering the recitals in Ex.P.1-copy of gift settlement deed, dated 22.10.2003 under which, the plaintiff is claiming right over the suit schedule property held that it does not indicate as to how Sathamma derived the suit schedule property and her title has not been established for gifting the same to the plaintiff. It was observed that mere entering the name of the plaintiff in the municipal records under Ex.P.2-mutation letter or in Ex.P.3-property tax does not confer any right to the plaintiff over the suit schedule property. On the other hand, in order to prove the possession, the respondent-defendant filed Ex.R.1-registered sale deed executed by Gorila Narayan, who is the vendor of father of the defendant. Ex.R.2 is the true translation of Ex.R.1. R.3 is the property tax pass book in respect of the property bearing No.13-6-184; Ex.R.4 is the notice of demand under Section 4 of the A.P. Non-Agricultural Land Assessment Act, dated 8.10.1985 in respect of the suit schedule property issued in the name of Narayan; Ex.R.5 is the letter addressed by the defendant to the Commissioner, GHMC, dated 28.1.2009 for mutation of his name, on which basis, the municipal authorities, as per Ex.P.9 mutated the property in the name of vendor of defendant’s father G. Narayan. Exs.R.7 to R.9 are the property tax challans for various years, which reflect the name of Narayan. Inasmuch as all the documents filed by the respondent- defendant chilchingly establishes that his father was the owner of the suit schedule property and on his demise, the defendant succeeded to the property, the lower Court by the impugned order dismissed the I.A. holding that the appellant-plaintiff failed to establish that he is in possession of the suit schedule property and the balance of convenience is not in his favour. When a specific averment has been made by the respondent- defendant in the counter affidavit that on vacation of the suit schedule property by the tenant-Sathamma, the mother of plaintiff, he demolished the house with an intention to make new construction, the plaintiff, in his reply affidavit except stating that he erected tin sheds in the suit schedule property for the purpose of cooking and keeping various household articles did not choose to deny the aspect of demolition of house by the defendant. Further as rightly observed by the lower Court, the documents filed by the appellant prima facie did not establish his possession over the suit schedule property and on the other hand, the documents filed by the respondent clinchingly established his possession over the property. No infirmity is discernable with the discretion exercised by the lower Court in dismissing the impugned I.A. warranting interference by this Court. The appeal fails and is accordingly dismissed. There shall be no order as to costs. ________________ A. GOPAL REDDY, J. __________________ SEPTEMBR 25, 2009 B.CHANDRA KUMAR, J. Tsr.