HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 3673 OF 2011 . DATED 2nd December, 2011 BETWEEN Chittoori Haranadh and anr …Petitioners And Gottimukkala Durga Vara Lakshmi Prasada Raju and anr ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No.3673 OF 2011 ORDER: This Civil Revision Petition under Article 227 of the Constitution of India is filed assailing the Judgment dated 17.03.2011 passed by the learned Tenancy Appellate Tribunal-cum-Principal District Judge, West Godavari at Eluru, in C.M.A.38 of 2009 whereby the order dated 27.08.2009 passed by the Special Officer (Tenancy)-cum-Principal Junior Civil Judge, Narasapur, in I.A.No.629 of 2009 in A.T.C.No.3 of 2009 was set aside and temporary injunction was granted to the appellant restraining the respondents therein and their men from evicting the appellant from petition schedule land except under due process of law pending disposal of main A.T.C.No.3 of 2009. For the sake of convenience and to avoid confusion, the parties herein shall be referred to as per their array before the lower Tribunal. Brief facts of the case of the petitioner is that he filed A.T.C.No.3 of 2009 seeking adjudication of his rights of tenancy over the petition schedule land and a declaration that the alleged transactions, i.e., the registered agreement of sale-cum-general power of attorney dated 30.05.2009 (Ex.A.1/Ex.B.2) said to have been executed by the first respondent in favour of the second respondent and the subsequent alleged execution of registered sale dated 25.06.2009 (Ex.A.2/Ex.B.1) by the second respondent in favour of the third respondent in respect of the petition schedule land are null and void. He also sought a permanent injunction restraining the respondents and their men from evicting him from the petition schedule land except under due process of law. It is averred that the father of the husband of the first respondent purchased the petition schedule land in or about the year 1942 and the father of the petitioner cultivated the same as a tenant under oral lease; and that after the death of the father of the husband of the first respondent in the year 1977, the petition schedule land fell to the share of the husband of the first respondent; and that after the demise of the father of the petitioner in the year 1990, the petitioner started to continue cultivation of the petition schedule land as a tenant as per the terms and conditions under which his deceased father used to do so; and that as the husband of the first respondent died on 18.02.2009, the first respondent became the absolute owner of the petition schedule land on account of the will said to have been executed by her husband; and that the petitioner has been cultivating the petition schedule land as a tenant under the first respondent with the same terms and conditions and that maktha was being paid regularly since the beginning. While so, it is further averred that the first respondent is said to have executed Ex.A.1-General Power of Attorney in favour of the second respondent for sale of the petition schedule land and on the basis thereof, the second respondent is said to have executed Ex.A.2-registered sale deed dated 25.06.2009 in favour of the third respondent in respect of the petition schedule land; and that the first and second respondents should not have done so without first giving an option to the petitioner being a statutory tenant for purchase of the petition schedule land and therefore Exs.A.1 and A.2 are sham, nominal and not binding on the petitioner. The main complaint of the petitioner is that under the strength of Exs.A.1 and A.2, the third respondent has been trying to evict the petitioner from the petition schedule land by interfering with his peaceful possession and enjoyment thereof. He therefore filed I.A.No.629 of 2009 seeking temporary injunction stating that he has got prima facie case and balance of convenience is in his favour and if interim/temporary is not granted he would suffer irreparable loss as the respondents have been trying to evict him highhandedly from the petition schedule land. Denying the aforesaid averments, the third respondent filed his written statement in the main A.T.C.No.3 of 2009 and the second respondent filed a memo adopting the counter filed by the third respondent. They also prayed that the counter filed in the main A.T.C. may be read as their counter in the I.A. also. The first respondent did not choose to file any counter and remained ex parte. It is admitted by the second and third respondents that the petition schedule land is the ancestral property of husband of the first respondent; and that the father of the petitioner as well as the father of the husband of the first respondent are good friends and on account of their friendship, the father of the husband of the first respondent entrusted the petition schedule land to the father of the petitioner for cultivation; and that the father of the petitioner used to cultivate the same as a manager or caretaker and after harvesting and realizing the crops, he used to sell the same in the market and pay the same to the father of the husband of the first respondent, after duly deducting the expenses incurred by him for cultivation and land revenue paid in respect of the petition schedule land and he never cultivated the same as a tenant; and that after the demise of the father of the petitioner, the petitioner used to cultivate the same in the similar fashion. They therefore denied that there is no jural relationship of landlord and tenant in between the father of the petitioner and the father of the husband of the first respondent; or in between the petitioner and the husband of the first respondent/the first respondent; and that no maktha was being paid as averred. It is also stated that the first respondent came to Lakshamaneswaram Village in the last week of May, 2009 and took possession of the petition schedule land in the presence of the village elders and also to the knowledge of the petitioner and therefore the question of alleged interference with the possession and enjoyment of the petitioner in respect of the petition schedule land did not arise. It is therefore stated that Exs.A.1/B.2 and A.2/B.1 are valid documents and that the petitioner has no right to claim any benefits under the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956. No oral evidence was adduced by the parties before the lower Tribunal. However, Exs.A.1 to A.45 were got marked on behalf of the petitioner while Exs.B.1 to B.4 were got marked on behalf of the second and third respondents. As stated earlier, the first respondent remained ex parte. The lower Tribunal, considering the documentary evidence adduced as well as the arguments put forth before it, refused to grant temporary injunction in favour of the petitioner by order dated 27.08.2009 holding inter alia that the petitioner failed to establish his possession over the petition schedule land as a tenant as on the date of filing of A.T.C.No.3 of 2009. Aggrieved thereby, the petitioner preferred a Civil Miscellaneous Appeal before the learned Tenancy Appellate Tribunal-cum-Principal District Judge, West Godavari at Eluru, in C.M.A.38 of 2009. The appellate Tribunal, appreciating the evidence on record and examining the material placed on record, reversed the order dated 27.08.2009 passed by the lower Tribunal and granted temporary injunction in favour of the petitioner observing that the petitioner has satisfied all the essential ingredients to have the relief as prayed for. It accordingly allowed the appeal with costs. Hence, this Civil Revision Petition by the second and third respondents in A.T.C.No.3 of 2009. Heard the learned counsel on either side and perused the case file meticulously. The learned counsel for the revision petitioners/respondents submitted that the appellate Tribunal erred in reversing the order passed by the lower Tribunal as it did not record a finding that the petitioner was a cultivating tenant within the meaning of the Tenancy Act before granting temporary injunction to him. He further pointed out that the appellate Court failed to record a finding as to the jural relationship between the parties before granting the relief to the petitioner. He therefore prayed that this revision petition be allowed. Per contra, the learned counsel for the respondent/petitioner contended that the lower Tribunal failed to consider the pleadings in the proper perspective and erroneously refused to grant temporary injunction to the petitioner; and that the appellate Court properly appreciated the evidence on record and rightly granted temporary injunction to the petitioner which does not warrant interference by this Court in this revision as the main A.T.C.No.3 of 2009 is still pending adjudication before the lower Tribunal and recording of a finding as to jural relationship between the parties would arise therein. He therefore sought dismissal of the revision petition. Admittedly, the father of the husband of the first respondent was the owner of the petition schedule land and after his demise in the year 1977, it fell to the share of the husband of the first respondent, who became the absolute owner of the petition schedule land. As the husband of the first respondent died on 18.02.2009, the first respondent became the absolute owner of the petition schedule land on the strength of a will said to have been executed by her husband during his life time. It is also an admitted fact that the father of the petitioner used to cultivate the petition schedule land since the purchase of the same by the father of the husband of the first respondent; and that after the death of the father of the petitioner, the petitioner continued to cultivate the same. However, while it is the case of the petitioner that during the life time of his father and thereafter himself used to cultivate the petition schedule land as a tenant and maktha was being paid regularly to the father of the husband of the first respondent and husband of the first respondent during their life time and thereafter to the first respondent as per the terms and conditions of the alleged oral lease and therefore the petitioner is entitled to have the option of right of first purchase of the petition schedule land being a statutory tenant under the Tenancy Act; it is the case of the second and third respondents that father of the petitioner and the petitioner never cultivated the petition schedule land as a tenant and did not pay any makthas to the father-in-law and husband of the first respondent and that the father of the petitioner and the petitioner were only managing the petition schedule land out of friendship and therefore they are at best licensees or caretakers only and therefore, they are not entitled to any benefits under the provisions of the Tenancy Act. It is relevant to note that the matter is still at the interlocutory stage of grant of a temporary injunction. Grant of a temporary injunction essentially turns upon the facts of the individual case examined in the backdrop of established legal principles. Grant of a temporary injunction is governed by three basic principles – (i) the petitioner has to make out a prima facie case; (ii) he has to establish that the balance of convenience is in his favour, i.e, it would cause greater inconvenience to him if the injunction is not granted than the inconvenience caused to the respondents by the grant thereof; and (iii) demonstrate that he would suffer irreparable injury if a temporary injunction is not granted [See ZENIT MATAPLAST PRIVATE LIMITED v. STATE OF MAHARASHTRA (2009) 10 SCC 388]. Further, as pointed out in KASHI MATH SAMSTHAN v. SRIMAD SUDHINDRA THIRTHA SWAMY [AIR 2010 SC 296] when a party fails to prove prima facie case, the question of considering balance of convenience or irreparable loss and injury to such party would not arise and it would not be open to the Court to grant an injunction in his favour in such a case even if he makes out balance of convenience in his favour and that he would suffer irreparable loss and injury if no injunction is granted. It was thus for the petitioner to establish a prima facie case that he was in possession of the petition schedule land as on the date of the A.T.C. for seeking a temporary injunction restraining the respondents from interfering with his peaceful possession. For this purpose, the Court could not look into the weaknesses in the case of the respondents and give the benefit thereof to the pettiioner. Irrespective of the merits in the case of the respondents, it was for the petitioner to establish his prima facie case that he was in possession of the petition schedule land as on the date of the filing of the A.T.C. The Court would be entitled to look into the case of the respondents only for the limited purpose of examining whether the petitioner had established his prima facie case. It is not a comparison of which side has a better case that would be determinative of the exercise of discretion by the Court whether or not to grant the equitable relief of temporary injunction [See SHAIK AMEER JOHNI v. SHAIK JOHN AHMED 1991 (II) ALT 449]. In DALPAT KUMAR v. PRAHLAD SINGH [(1992) 1 SCC 719], the Supreme Court held that phrases ‘prima facie case’, ‘balance of convenience’ and ‘irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by men’s ingenuity in given facts and circumstances, but always hedged with sound exercise of judicial discretion to meet the ends of justice. The examination of facts would therefore be crucial to determine in the first instance whether the petitioner established his prima facie case and it is only then the question would arise as to whether balance of convenience is in his favour and whether he would suffer irreparable loss and injury if an injunction is refused to him. The petitioner adduced documentary evidence in Exs.A.1 to A.45 to prove his possession of the petition schedule land as on the date of filing of the A.T.C. The respondent adduced documentary evidence in Exs.B.1 to B.4. It is needless to state that Exs.A.1 and A.2 are similar to that of Exs.B.2 and B.1 respectively. While Ex.A.34 (C-Form Levy demand notice) shows that the father of the petitioner was in possession of the petition schedule land from the year 1969 and after his demise, the petitioner has been in possession of the same, Ex.A.31 (Receipts for faslies 1414, 1415, 1416, 1417 & 1418) goes to show that prima facie the petitioner has been in possession of the petition schedule land even in June, 2009 when A.T.C was filed. The other documentary evidence adduced by the petitioner would also show that his father and himself have been in possession of the petition schedule land since a long time. Therefore, balance of convenience is also in his favour. Once prima facie case and balance of convenience is found to be in his favour, if temporary injunction as sought for is not granted, it would cause irreparable injury to him. On the other hand, the grant of temporary injunction pending adjudication of the main A.T.C. would not cause any prejudice or harm to the respondents in view of the long standing possession of the petition schedule land by the father of the petitioner and after his demise by the petitioner. The questions as to whether there is a jural relationship of landlord and tenant between the parties; as to whether the father of the petitioner and the petitioner have paid maktha to the father of the husband of the first respondent and after his demise to the first respondent and after his death to the first respondent; that the documents in Exs.A.1/B.2 and A.2/B.1 are null and void; that the petitioner is entitled to have the option of first purchase of the petition schedule land from the first respondent being a statutory tenant; etc., would arise for adjudication in the main A.T.C. which is pending before the lower Tribunal. In view of the above discussion, it is not necessary for this Court to advert to the other aspects of the matter as this stage. The lower Tribunal failed to consider these aspects properly and refused to grant temporary injunction by its order dated 27.08.2009. However, the appellate Tribunal having considered the matter in its proper perspective and granted temporary injunction to the petitioner by its Judgment dated 15.03.2011 by setting aside the order dated 27.08.2009 passed by the lower Tribunal. Having due regard to the law governing the grant of temporary injunction laid down by the Supreme Court referred to above and considering the peculiar facts and circumstances of the case, I am of the considered opinion that the petitioner is entitled to have temporary injunction in his favour pending adjudication of the main A.T.C. Viewed from any angle, I do not find any irregularity or infirmity in the Judgment dated 15.03.2011 passed by the appellate Court in C.M.A.No.38 of 2009 warranting interference by this Court in its revisionary jurisdiction. In the result, the Civil Revision Petition fails and is accordingly dismissed. In the circumstances, no order as to costs. ---------------------------------------- -- JUSTICE ASHUTOSH MOHUNTA Dated 2nd December, 2011. Msnro