IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD MONDAY, THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.840 OF 2011 Between: F.R.Michael …Petitioner A n d Kunarapu Mallesh and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.840 2011 ORDER: This civil revision petition is directed against the order dated 20-01-2011 in C.M.A.No.8 of 2008, on the file of the Senior Civil Judge, Mancherial, wherein the said appeal was dismissed, confirming the order dated 29-04-2008 in I.A.No.1477 of 2007 in O.S.No.554 of 2007, on the file of the Junior Civil Judge, Mancherial. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. Respondents 1 to 5 herein filed the suit for partition and separate possession of their share in an extent of Ac.1-24 guntas in Sy.No.97 and Ac.0-20 gts in Sy.No.99 of Kyathampalli Village. According to the respondents/plaintiffs, one K.Narsaiah was the original owner of the said lands and he was protected tenant and was issued 38-E certificate in the year 1974 by the Revenue Divisional Officer, Nirmal and that he died without any class-I legal heirs, but left behind five brothers and the legal heirs of the said brothers came into possession of the suit lands and the plaintiffs, who are the legal heirs of one of the brothers K.Buchaiah are entitled to 1/5th share and D-1 to D-10, who are the legal heirs of another brother K.Balaraju, are entitled to 1/5th share and D-11 to D-26, who are the legal heirs of another brother K.Pocham, are entitled to 1/5th share and D-27, who is the legal heir of 4th brother K.Gangaiah, is entitled to 1/5th share and D-28, who is the legal heir of the 5th brother K.Lingaiah, is entitled to 1/5th share. The plaintiffs allege that after the death of original PT holder, D-17 to D-19 and deceased K.Pocham misrepresented before the revenue authorities and got the lands mutuated in their names as if it belonged to their father and the Mandal Revenue Officer, Mandamarri, without any enquiry, ordered mutation by recording their names and based on those entries, D-17 to D-19 and K.Pocham alienated the suit lands to different persons i.e., D-29 to D-38 and the said alienations are null and void and not binding on the plaintiffs. The plaintiffs further alleged that under the guise of the said alienation, D-39 is trying to raise construction in a portion of the suit lands and gathered construction material. The plaintiffs, therefore, filed I.A.No.1477 of 2007 under Order XXXIX Rule 1 CPC for a temporary injunction restraining the petitioner herein (D-39) from raising any constructions in the suit lands. 4. On 14-11-2007, the trial Court granted interim injunction. 5. The petitioner herein (D-39) filed a counter opposing the application contending that one K.Gangaiah @ Gangulu was the original PT holder and cultivator of the land in an extent of Ac.3-18 gts in Sy.No.97 and Ac.1-00 in Sy.No.99 and after his death, his son Laxminarayana (D-27) succeeded to the same and he was issued pattadar passbook and his name was recorded in the revenue records as cultivator and the said Laxminarayana (D-27) sold Ac.2-00 of land in Sy.No.97 to Gurram Ventaki under a registered sale deed dated 28-04-1993 and delivered possession and D-27 also sold an extent of Ac.0-20 gts in Sy.No.98 and Ac.0-25 gts in Sy.No.99 to the said Gurram Venkati and the purchaser was recorded as pattadar and possessor in the revenue accounts. It is further pleaded by the petitioner that Gurram Venkati subsequently sold the lands to the petitioner (D-39) under a registered sale deed dated 25- 05-1994 and delivered possession to the petitioner (D-39) and the name of D-39 was also recorded as pattadar and possessor of the said lands. The petitioner further contended that in the year 2002 he obtained permission from the gram panchayat and constructed RCC building which was assigned door No.1-238/1 and he has been running a society in the name of Jeevanadhara Society in the said building for training the poor and illiterate villagers and as the existing building is not sufficient, he again obtained permission from the gram panchayat for construction of another RCC building. He further contended that himself and his vendor Venkati and the previous owner K.Laxminarayana have no concern with the lands of K.Narsaiah. After hearing both sides, the trial Court, by order dated 29-04-2008 allowed the application and granted temporary injunction restraining the petitioner (D- 39) from making any construction over the suit lands. Aggrieved by the same, the petitioner filed C.M.A.No.8 of 2008 and the learned Senior Civil Judge, by the impugned order dated 20-01-2011, dismissed the said appeal. 6. The respondents filed the suit for partition of the lands of an extent of Ac.1-24 gts in Sy.No.97 and Ac.0-20 gts in Sy.No.99. The petitioner herein (D-39) claims to have purchased an extent of Ac.2-00 in Sy.No.97 and Ac.0-20 gts in Sy.No.98 and Ac.0-25 gts in Sy.No.99 from one Gurram Venkati under Ex.B-1 sale deed dated 25-05-1994 who is said to have purchased the said lands from K.Laxminarayana (D-27) under sale deed Ex.B-2. Ex.B-1 does not, however, refer to Sy.No.97, but mentions the Sy.No.77/1. It is stated that even without there being any rectification deed executed by the vendor Gurram Venkati, the petitioner (D-39) got his name entered in the revenue records in respect of an extent of Ac.3-08 gts in Sy.No.97. The Courts below have, on scrutiny of the documents filed by the petitioner herein, recorded a concurrent finding to the effect that the petitioner (D-39) has not established his claim in respect of the land in Sy.Nos.97 and 99 and, therefore, he cannot successfully resist the claim of the plaintiffs for injunction in respect of the suit lands. The Courts below also recorded a finding to the effect that there is a prima facie case and also balance of convenience in favour of the plaintiffs for granting temporary injunction. 7. Be that as it may, even according to the petitioner (D-39), the construction is being made in Sy.No.98, which is not the suit land. In para 10 of the counter filed by the petitioner herein (D- 39) in I.A.No.1477 of 2007, it is categorically averred that the construction is being made in Sy.No.98, which is not the suit land. According to the plaintiffs, the suit lands are situate in Sy.Nos.97 and 99, but not Sy.No.98. They alleged that the constructions are being made in the suit la n d s . D-39 categorically denies the same and specifically pleaded in the counter filed in I.A.No.1477 of 2007 that the construction is being made only in Sy.No.98, which is not the suit land. When that is so, no prejudice would be caused to the petitioner (D-39) if a temporary injunction is granted restraining him from making constructions in Sy.Nos.97 & 99, which are subject matter of the suit. Even the certificate of ownership issued under Section 38E of the A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950, marked as Ex.A-1, shows that the original owner K.Narsaiah was declared as a protected tenant in respect of the lands of Ac.1-24 gts in Sy.No.97 and Ac.0-20 gts in Sy.No.99 only and there is no reference to the land in Sy.No.98 therein. On a proper consideration of the material placed on record and 38 E certificate Ex.A-1 and the pahanies Exs.A-2 to A-13, the trial Court has rightly held that the petitioners have established a prima facie case in respect of the suit lands and the balance of convenience also lies in favour of granting the injunction insofar as the suits lands are concerned and the same was rightly confirmed by the appellate court on reappraisal of the entire material on record. Even according to petitioner (D-39), the constructions are being made in Sy.No.98, which is not the subject matter of the suit. He cannot resist the grant of temporary injunction in respect of the land situate in Sy.Nos.97 & 99. 8. The learned counsel for the petitioner relies upon a decision in THE ARCHIDIOCESE OF HYDERABAD V. DR. J.JASWANTHA RAO[1] wherein this Court held that where an unconditional undertaking is given by the defendant to demolish and remove the construction on the suit land in case the plaintiff succeeds in the suit, the refusal to grant interim injunction after recording the undertaking given by the defendant, is proper. The said decision is not applicable to the facts of the present case for the simple reason that even according to him the construction made is not in the suit lands but is in Sy.No.98, which is not the subject matter of the suit. 9. The learned counsel for the petitioner would submit that the petitioner had spent huge amount in making necessary preparations for the construction and he would be put to irreparable loss if he is not permitted to go ahead with the construction. In that connection, he invited attention to a decision in MANDALI RANGANNA V. T.RAMACHANDRA[2] wherein the Apex Court observed that as respondent No.7 therein spent three crores of rupees and if it be so, it would not be proper to stop further construction. It was further observed that the interest of justice would be subserved if, while allowing the respondents to carry out constructions of the buildings, the same is made subject to the ultimate decision of the suit. The learned counsel for the petitioner would submit that a similar order can be passed in the present matter also. It is to be noted that in the decision cited there was no dispute regarding the identity of the property wherein constructions were being made. But in the present case even according to the petitioner (D-39) the construction is being made in Sy.No.98, which is not the subject mater of suit at all. When that is so, the question of permitting the petitioner (D-39) to go ahead with the construction and make the same subject to the result of the suit, does not arise. 10. The impugned orders do not, therefore, call for any interference in exercise of revisional jurisdiction, as they do not suffer from any illegality or material irregularity. 11. In the result, the civil revision petition is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 25th April, 2011 Lrkm [1] 1981 II APLJ 475 [2] 2008 Scale-8 277