HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.158 OF 2010 DATE:29-01-2010 BETWEEN Kurada Satyanarayana & Others …Petitioners AND Kurada Satyanarayanamma & Another. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CIVIL REVISION PETITION No.158 OF 2010 ORDER: Unsuccessful plaintiffs in the court below in obtaining injunction filed this revision under Article 227 of Constitution of India challenging the dismissal order, dated 8.10.2009 passed by II Additional District Judge, East Godavari District at Amalapuram in C.M.A.No.8 of 2009. Petitioners herein instituted a suit in O.S.No.9 of 2005 on the file of Senior Civil Judge, Amalapuram for declaration of title and for injunction against the respondents-defendants from interfering with their possession and enjoyment over the plaint schedule properties, in which, they filed I.A.No.21 of 2005 seeking temporary injunction. Initially, the trial Court granted ex parte injunction on 19.1.2005, however, on contest of the application by the respondents-defendants, vacated the injunction holding that the petitioners-plaintiffs failed to establish that they are in physical possession of the property and that their possession was threatened to dispossess by the respondents 1 and 2. It was observed that none of the 18 documents that were filed by the petitioners could establish that on the date of death of Kurada Satyam on 23.9.2004, the Will said to have been executed by Kurada Satyam on 21.10.1993 was acted upon and the petitioners were inducted into lawful possession of the plaint schedule properties. On appeal being filed in C.M.A.No.8 of 2009, the lower appellate Court on appreciation of the pleadings as well as the documentary evidence, dismissed the same by the impugned order. Hence, the revision. Learned counsel for the petitioners contends that Exs.A.1 to A.18 which are title deeds of first wife of Kurada Satyam and the receipts of revenue taxes and other electricity bills and exchange of notices etc. clearly establish that the petitioners are in possession of the plaint schedule properties. Once the trial Court found that the petitioners 1 to 3 are in possession of the plaint schedule property, it ought not to have held that the said possession has to be established through documentary evidence and the said finding is erroneous and therefore, the petitioners are entitled to injunction. It is the case of the petitioners that the petitioners 2 and 3 are sons of first petitioner, who is the adoptive son of one Kurada Satyam. Kurada Satyam had two brothers by name Bucheyya and Rambhadra Rao @ Ramabhadrudu. Butcheyya is the elder and Ramabhadra Rao is younger brother of Kurada Satyam. Kurada Satyam got two marriages but as there were no issues, Kamakshamma, the first wife of Kurada Satyam, along with her husband, brought up the first petitioner from his childhood and later adopted him. Kurada Satyam acquired the properties, both moveable and immovable apart from his first wife Kamakshamma. Upon the death of Kamakshamma, the properties standing in her name were enjoyed by Kurada Satyam. Later, Kurada Satyam married the first respondent herein. During the lifetime, Kurada Satyam executed a registered Will deed on 21.10.1993, by virtue of which, items 1 to 3 of the plaint schedule properties were to be enjoyed by the first petitioner during his life time while the petitioners 2 and 3 were given vested remainder equally, and that regarding items 6 and 7, interest was created in favour of his brother Kurada Ramabhadra Rao and vested remainder was given to his sons-defendants 3 and 4. He bequeathed item No.8 of the schedule property to Veerabhadra Rao-defendant No.3 and one of the sons of late Ramabhadra Rao with absolute rights after lifetime of testator. Upon the death of Kurada Satyam on 23.9.2004, the parties succeeded to the properties as per the said Will. First respondent, taking advantage of the petitioners’ absence at home took away all the documents and having colluded with second respondent is trying to alienate the plaint schedule properties. During the lifetime, late Kurada Satyam purchased properties in the name of first respondent and after his death, all the original documents are in the custody of first respondent and when the first petitioner made a request for return of the movables as well as the original documents, the first respondent refused to handed over the same and therefore, he gave a complaint to the police against her and others. Opposing the impugned I.A., the first respondent filed a counter and the same was adopted by the second respondent. According to her, the alleged Will, dated 21.10.1993 was brought into existence by impersonation and forgery, and that the petitioners failed to remove the suspicious circumstances clouded around the Will and that they have to establish the genuineness of the said Will. According to her, she is the second wife of late Kurada Satyam and the second respondent is her sister’s son. After the death of Kamakshamma, Kurada Satyam got married her and that there are no issues through both the wives. The second respondent has been residing with her for the past 20 years and looking after her. The first petitioner and his children-petitioners 2 and 3 never lived with Kurada Satyam at any point of time. According to her, except item No.1 of the plaint schedule property, the rest of the properties are self-acquired properties of Kurada Satyam, and that item No.1 was purchased in the name of Kamakshamma during her lifetime with the amounts given by her parents. During the lifetime, her husband-Kurada Satyam executed an unregistered Will on 13.8.2004 in sound and disposing state of mind bequeathing all his self-acquired properties covered by item Nos.2 to 8 and also item No.1 to this respondent. Item No.3 of the plaint schedule property consisting of four portions is in occupation of tenants and that the first respondent is collecting the rents from one portion and another portion is vacant. In item No.7 of the schedule property, first respondent is in occupation of northern portion while the southern portion is in occupation of tenant-T.Nagarajarao on a monthly rent of Rs.750/-. Therefore, according to first respondent, the alleged Will, dated 21.10.1993 was not executed by Karuda Satyam and that as per the Will, dated 13.8.2004, she is in possession and enjoyment of all the plaint schedule properties and hence, the petitioners are not entitled for grant of injunction. Taking into consideration the fact that the title claimed by the petitioners is in dispute and on the other hand, particular house properties are shown to be in possession of first respondent and some tenants, from whom she is collecting rents, and that the very suit is filed for declaration of title and that there being no dispute that the first respondent is the wife of late Kurada Satyam, the lower appellate Court held that no injunction can be granted against the respondents and accordingly dismissed the appeal by the impugned order. The concurrent findings of fact arrived at by both the Courts below are purely on appreciation of the pleadings and the evidence adduced by the parties. Inasmuch as the petitioners failed to establish their prima facie possession over the plaint schedule properties, I see no infirmity or illegality with the impugned order. The revision fails and is accordingly dismissed. Since the suit is of the year 2005, the trial Court is directed to dispose of the same as expeditiously as possible, preferably by the end of April 2010 uninfluenced by any of the observations made in the interlocutory application. No costs. _______________ A. GOPAL REDDY, J. JANUARY 29, 2009 Tsr.