IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5667 OF 2009 Between: Bidilla Shoba Rani and others .....PETITIONERS AND Aleti Saroja and others ....RESPONDENTS The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.5667 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the constitution of India, is directed against the order, dated 13.10.2009, in C.M.A.No.16 of 2009 on the file of V Additional District Judge, whereunder and whereby, the appeal filed against the decree and order, dated 09.06.2009, in I.A.No.530 of 2009 in O.S.No.112 of 2009 on the file of Senior Civil Judge, Karimnagar, was dismissed. 2. The petitioners herein are the defendants in the suit. Respondents filed the suit for perpetual injunction restraining the petitioners from interfering with the peaceful possession of respondents over the petition schedule property i.e., second floor of the southern part of 5th floor (pent house) of building known as Kala Prakash Complex, situated at Collector complex road, Mukkarampura, Karimnagar. 3. The trial Court after considering the evidence available on record, came to the conclusion that respondents established a prima facie title and if the injunction is not granted in their favour, it would cause grave hardship to them and there is every likelihood of their dispossession and hence, granted temporary injunction. On appeal, the said temporary injunction was confirmed. Challenging the same, the present revision petition is filed. 4. Learned counsel for the petitioners contended that since the petitioners are the children of the second wife of B. Prakash Rao, father of respondents herein, they are entitled for a share in the property; that in view of the fact the first wife of B. Prakash Rao died intestate prior to death of her husband, B. Prakash Rao will get one share, which has to be shared equally by the children of first wife and second wife and hence, an injunction petition cannot be maintained against the co- sharers. 5. On the other hand, learned counsel for the respondents disputed about the status of the mother of the petitioners herein as second wife of B. Prakash Rao; and contended that the petitioners are not entitled for any share in their father’s property; and that upon proper consideration of entire evidence available on record, both the Courts below rightly granted temporary injunction in favour of respondents herein and therefore, there are no grounds at all to interfere with the concurrent findings of fact recorded by both the Courts below and hence, he prays to dismiss the revision petition. 6. Exercising the powers under Article 227 of the Constitution of India, the Court has to see that whether the sub-ordinate Courts acted within their limits or exceeded their jurisdiction in passing the impugned orders. If the findings are not based upon any material available on record or admissible evidence has been over looked or inadmissible evidence has been taken into consideration are some of the grounds where this Court can interfere with. The dispute is not with regard to item No. 2 of the plaint schedule property, which is second floor of the building. The contention of the petitioners is that the property was purchased in the name of the first wife of B.Prakash Rao in benami. Therefore, the children of second wife are also entitled for a share in the property. Whereas the contention of the respondents is that the mother of the petitioners herein is not the second wife of their father and they are not entitled for a share. 7. In grant or refusal of temporary injunction, three important principles are the prima facie title, possession of the property has to be shown i.e, the parties in possession of the property as on the date of filing of the suit and the balance of convenience. If the injunction is not granted, an irreparable injury would be caused to the other side. Prima facie the gift deed property is the property purchased under registered sale deed - Ex.P1, which stands in the name of the mother of the respondents herein. Though it is contended that it is a benami transaction, Section 3(2) of the Benami Transactions (Prohibition) Act, 1988, prohibits such a plea, unless the contrary is proved. Therefore, that cannot be decided at this stage. So, prima facie there is a title to the mother of the respondents herein in view of the purchase made under Ex.P-1. They are paying the Municipal Tax under Exs.P-3 to P-6. So, these documents prima facie show that the respondents herein were in possession of the property by the date of filing of the suit. On the other hand, the petitioners herein not filed any single document to show that they have been in possession of the property on the date of filing of the suit. With regard to prima facie title, it must be shown that the children of the alleged second wife are entitled for share in the father’s property. Though the first wife pre-deceased her husband, still it has to be shown that, under the Indian Succession Act, 1925, whether the illegitimate children are entitled for a share in the father’s property, because there no provision under Indian Succession Act is brought to the notice of this Court similar to the provision of Section 16 of the Hindu Marriage Act, 1955. Therefore, the petitioners herein have prima facie failed to establish that they have got a right or a share in the property i.e, plaint schedule property. Similarly, they have failed to show that they are in possession of the property. So, based upon the material available on record, both the Courts below have rightly held that the respondents herein were in possession of the property by the date of filing of the suit by establishing their title. If the injunction is not granted to the respondents herein they would be dispossessed from the plaint schedule property, which will cause hardship for them. Therefore, both the Courts below on proper appreciation of evidence, rightly granted temporary injunction and none of the findings recorded by both the Courts is shown to be perverse or contrary to law. Hence, there are no grounds to interfere with the impugned order and the revision petition is liable to be dismissed. 8. Accordingly, the Civil Revision Petition is dismissed. Any observation made by this Court is only for the purpose of disposal of this revision petition. Uninfluenced by the observation, the trial Court shall dispose of the suit in accordance with law. There shall be no order as to costs. _______________ K.C. BHANU, J April 01, 2010 MD