Andhra Pradesh High Court - Amravati
M Chandrasekhar Reddy vs M Reddeppa Reddy on 21 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Civil Revision Petition No.1589 of 2019
ORDER:
1. This petition under Article 227 of The Constitution of India is filed assailing the order in I.A No.1020 of 2014 in O.S No.607 of 2014 dated 24.01.2019 passed by II Additional District Judge, Madanapalle, whereby the civil miscellaneous appeal No.3 of 2017 was allowed, setting aside the order passed in I.A No.1020 of 2014 in O.S No.607 of 2014 passed by Principal Section Civil Judge, Madanapalle dated 08.08.2017, granted interim injunction, during pendency of O.S No.607 of 2014. The petitioners are the respondents/defendants and the respondent is the petitioner/plaintiff before the trial court.
2. The respondent herein filed suit in O.S No.607 of 2014 claiming relief of partition of schedule property and other consequent reliefs. Along with the suit, the respondent herein filed I.A No.1020 of 2014 under Order XXXIX, Rule 1 and 2 of Civil Procedure Code (for short 'C.P.C'), for grant of temporary injunction during pendency of the suit, restraining the petitioners herein and their men from dispossessing the respondent from the schedule property.
3. The case of the respondent herein in brief is that the schedule property originally belongs to M. Reddeppa Reddy, father of the respondent herein. He purchased it from Gangarapu Vanajkshi, W/o.Narasimha Reddy and others under a registered sale deed dated 20.10.1973, for valuable consideration and in possession of an extent of Ac.3.83 cents. He also purchased 1/6th share i.e. an extent of Ac.3.83 cents in the same survey number, which forms part of the schedule, from Pitchala Salamma, W/o.Chenna Reddy, under a registered sale deed dated 13.07.1960. Again he purchased an extent of Ac.1.91 cents in the 2 MSM, J C.R.P No.1589 of 2019 same survey number which form part of the schedule property from Gangarapu Venkata Sesha Reddy and others under a registered sale deed dated 07.04.1972 and continuing in possession and enjoyment of the property which he purchased under three sale deeds referred supra, during his life time. Thus, M. Reddeppa Reddy became the absolute owner of the property and in possession and enjoyment, during his life time and it is a self acquired property of M. Reddeppa Reddy.
4. The total extent in S.No.281 was Ac.61.38 cents and consequent upon the purchase of the property of an extent of Ac.9.40 cents, the survey number was sub divided and assigned S.No.281/2 to the land purchased by M. Reddeppa Reddy, father of the respondent herein.
5. M. Reddeppa Reddy had three sons by name Bayya Reddy, Reddeppa Reddy and Venkatramana Reddy. The respondent herein is the second son to his parents, he looked after the welfare of his father, during his life time. But Bayya Reddy, died leaving behind his wife, 3rd petitioner herein, got divided from M. Reddeppa Reddy in the year 1983 itself. The mother of the respondent died long back and his father was unable to cultivate the land, due to his old age. Hence, the respondent and his brother Venkataramana Reddy were looking after the welfare of their father, during his old age. As such M. Reddeppa Reddy, executed a registered gift deed in favour of the respondent on 05.02.2009, the same was accepted by the respondent, since the date of gift, he is in possession and enjoyment of an extent of Ac.5.37 cents. There was a big rocky slab and Theelichetla vanka which is part of schedule property and the same was kept as joint, as it is not fit for cultivation. Thus, the respondent cultivated the land in his own right and he is in possession 3 MSM, J C.R.P No.1589 of 2019 and enjoyment without any interruption by anybody, obtained pattadar passbook and title deed in his favour.
6. While the matter stood thus, father of the respondent herein executed another gift deed in favour of his youngest son M. Venkataramana Reddy on 05.02.2009 for the remaining extent of Ac.4.03 cents in the very same survey number and delivered possession of the same and continuing in possession and enjoyment of the said property. Though there was no condition for revocation of the gift, father of the respondent, M. Reddeppa Reddy, cancelled the gift deed by executing, cancellation deed dated 23.09.2010, at the instance of the petitioners herein and his family members. Thereupon, the respondent filed O.S No.7 of 2011 on the file of II Additional District Judge, Madanapalle, against his father for declaration of his title to the property and for consequential permanent injunction and the suit was decreed in favour of the respondent herein on 05.01.2012, the decree is binding on the petitioners herein.
7. The respondent also obtained crop loan of Rs.50,000/- from State Bank of India, Madanapalle Branch and the loan is still subsisting. The respondent's father executed unregistered Will dated 24.08.2011 in favour of his younger son M. Venkataramana Reddy, in sound state of mind, bequeathing his house property and house site belonging to him and kept the said unregistered Will in iron safe in the house and after his death, it was traced. The said M. Venkataramana Reddy, being the legatee, is entitled to claim the property covered by the Will.
8. The petitioner Nos.1 and 2 and their father Bayya Reddy, filed O.S No.91 of 2013 on the file of Senior Civil Judge, Madanapalle unjustly 4 MSM, J C.R.P No.1589 of 2019 claiming share and the said suit is pending for disposal. Father of the petitioner Nos.1 and 2 and husband of 3rd petitioner, Bayya Reddy died on 17.11.2014. During his life time, he separated from his father about a year ago, for convenience of cultivation of the property and there were no disputes among them. However, after death of Bayya Reddy, there were disputes with regard to partition of the remaining properties of M. Reddeppa Reddy and the petitioners herein trying to grab the schedule property with the aid of anti social elements and they are proclaiming in the village, that they will dispossess the respondent from the joint possession of the property.
9. A common counter was filed by the petitioners herein (respondents before the trial court), admitting the relationship, while contending that M. Reddeppa Reddy had no right to execute the gift deed dated 05.02.2009 as he is not the owner of the property and that he had no independent income from any source to acquire any property, but the property was purchased with joint family nucleus, after sale of the property of the joint family in S.Nos.335/1, 335/3 and 335/4 of Kollabailu revenue village acquired by Venkatappa, grandfather of M. Reddeppa Reddy. It is also further contended that one Rangannagari @ Mudiveti Ramappa @ Ramanna @ Rami Reddy owned and possessed immovable properties at Guttameedapalle village and the said Rangannagari @ Mudiveti Ramappa @ Ramanna, Rami Reddy's father owned and possessed properties in S.Nos.335/1, 335/3 and 335/4 of Kollabailu revenue village and the properties were granted under D form pattas in an extent of Ac.5.00 cents in Kollabailu village and the original owner Ramappa's father is paternal grandfather of the petitioners herein. The petitioners herein specifically contended that the gift deeds executed 5 MSM, J C.R.P No.1589 of 2019 in favour of respondent and one Venkataramana Reddy, 3rd son of M. Reddeppa Reddy are not valid and binding on these petitioners, since M. Reddeppa Reddy was not the absolute owner of those properties and it was acquired from the joint family nucleus and thereby the petitioners are the joint owners and entitled to continue in possession of the property and no injunction can be granted in favour of one co-owner against another co-owner and requested to dismiss the revision.
10. During enquiry, on behalf of the respondent herein (petitioner before the trial court), Exs.P1 to P12 are marked and on behalf of the petitioners herein (respondents before the trial court), Exs.R1 to R7 were marked. No oral evidence was adduced.
11. The trial court, upon hearing argument of both the counsel, by order dated 08.08.2017, dismissed I.A No. 1020 of 2014, negating the relief of temporary injunction, during pendency of the suit, on the ground that the respondent herein failed to establish the three requirements which are sina quo nan, for granting temporary injunction and that the property allegedly acquired by his father M. Reddeppa Reddy was not the self acquired property and it is a coparcenery property and thereby the respondent herein being a co-owner is not entitled to claim a temporary injunction, restraining other co-owners and dismissed the petition.
12. Aggrieved by the decreetal order, the respondent herein preferred a civil miscellaneous appeal before the II Additional District Judge, Madanapalle under order XXXXIII, Rule 1 of C.P.C, challenging the decree on various grounds. But the appellate court, reversed the order passed by the trial court and granted a temporary injunction, restraining the petitioners herein and their men, from interfering with the peaceful 6 MSM, J C.R.P No.1589 of 2019 possession and enjoyment by the respondent herein, over the schedule property, allowing the appeal.
13. Aggrieved by the order, the present revision under Article 227 of The Constitution of India is filed, mainly contending that the respondent filed suit for partition and other consequential reliefs, claiming to be the member of the joint family, while contending that the suit schedule property is the joint family property and thereby, in a suit for partition while asserting that the respondent herein and other defendants are in joint possession and enjoyment of the property, grant of temporary injunction, during penedency of the suit is a serious irregularity. It is also contended that the learned II Additional District Judge, Madanapalle did not consider certain documents, produced before the trial court, while observing that those documents cannot be looked into at this stage for deciding the appeal, in para Nos.22 and 23 of the judgment. Thereby non-consideration of documentary evidence marked as Exs.P8 to P10, R1, R4 and R6 is a grave irregularity, committed by the learned II Additional District Judge, Madanapalle and requested to set aside the order passed in C.M.A No.3 of 2017 dated 24.01.2019 in I.A No.1020 of 2014 in O.S No.607/2014 by the II Additional District Judge, Madanapalle.
14. During hearing, the learned Counsel for the petitioners contended that when the suit is filed for partition while asserting that respondent and petitioners are in joint possession and enjoyment of the same, grant of temporary injunction against the co-owner is impermissible under law and thereby the order under challenge is liable to be set aside, on the sole ground. It is also contended that non consideration of certain documents produced by either of the parties is a grave error, committed 7 MSM, J C.R.P No.1589 of 2019 by the appellate court and on this ground alone, the order is liable to be set aside and prayed to set aside the order passed by the learned II Additional District Judge, Madanapalle in C.M.A No.3 of 2017 and dismiss the civil miscellaneous appeal, restoring the order passed by the trial court in I.A No.1020 of 2014 in O.S No.607 of 2014.
15. The learned Counsel for the respondent, supported the order in all respects, while highlighting the illegality allegedly committed by the trial court and requested to affirm the order passed by the II Additional District Judge, Madanapalle, while dismissing the revision, in view of the limited jurisdiction that conferred on this Court under Article 227 of the Constitution of India.
16. Considering rival contentions, perusing the material available on record, the point that arise for consideration is:
Whether the interim injunction granted by the II Additional District Judge, Madanapalle, restraining the petitioners herein from interfering with the peaceful possession and enjoyment of the respondent herein, in a suit filed for partition, claiming that the respondent herein is also in joint possession and enjoyment of the suit schedule property, be sustained under law?
POINT:-
17. Admittedly, the suit is filed for partition of the suit schedule property into thirty two shares by metes and bounds and to allot one such share to the respondent herein/plaintiff, according to good and bad qualities and restraining defendant Nos.25 and 26 from executing any sort of documents of any nature by granting permanent injunction. In the plaint in O.S No.91 of 2013 filed by the petitioner's father Rangannagari @ Mudiveti Bayya Reddy, died and one Rangannagari @ 8 MSM, J C.R.P No.1589 of 2019 Mudiveti Chandrasekhar Reddy, 1st petitioner herein and two others against the defendant and 27 others, the petitioners asserted that the respondent and petitioners and others are in joint possession and enjoyment of the property and paid the court fee of Rs.200/- for claiming relief of partition of the schedule property, though the 3/4th of the value of the share of respondent comes to Rs.1,30,688/-. Therefore, the respondent asserted that he is in joint possession and enjoyment of the property, but claimed a temporary injunction, restraining the petitioners herein and their men from interfering with the peaceful possession and enjoyment of the property under Order XXXIV, Rule 1 and 2 of C.P.C.
18. The written statement filed in the said suit in O.S No.91 of 2013 is not placed on record to believe that this petitioner Nos.1 to 5 admitted about joint possession and enjoyment of the property. But the respondent herein claimed exclusive right over the property, in the present suit in O.S No.607 of 2014, based on the gift deed referred supra dated 05.02.2009. When the suit was decreed earlier, granting declaration of title in O.S No.7 of 2011 on the file of II Additional District Judge, Madanapalle, respondent herein became the absolute owner of the property. However, the petitioners herein contended that they are not parties to the said suit. But the suit is filed by M. Reddeppa Reddy, S/o.Reddeppa Reddy (respondent herein) against his father M. Reddeppa Reddy, S/o.Late Rami Reddy. The suit was decreed, declaring that the respondent herein is the owner of the property. The petitioners herein are claiming title through Bayya Reddy, while contending that Bayya Reddy, father of petitioner Nos.1 and 2 and husband of 3rd petitioner herein. Bayya Reddy claimed only partition in the earlier suit in O.S No.91 of 2013, but it is not known, whether the suit is decreed or not and no 9 MSM, J C.R.P No.1589 of 2019 documentary proof is produced before the trial or appellate courts or before this Court, evidencing disposal of the suit to believe the case of the petitioners herein. When the respondent herein and others were declared as owners of the schedule property, gifted to him by Reddeppa Reddy vide original of Ex.P1 dated 05.02.2009, though cancelled by execution of original of Ex.R5 dated 23.09.2010, the cancellation deed become redundant, in view of the decree and judgment in O.S No.7 of 2011, original of Exs.P5 and P6, as on today, the decree in O.S No.7 of 2011 on the file of II Additional District Judge, Madanapalle is not yet reversed. When the respondent herein and others are declared as owners of the property, by a competent court, having jurisdiction, the same is binding on the parties thereto, since the decree for declaration is a decree in personem not in rem. Section 35 of The Specific Relief Act, made it clear that the decree in a suit for declaration is binding on the parties to the suit or the persons claiming through the parties to the suit, but not on the third parties. The petitioners before this Court, claiming that the property was purchased with the joint family nucleus by M. Reddeppa Reddy, father of respondent and grandfather of petitioner Nos.1, 2, 4 and 5, but whether it was acquired with the joint family nucleus or not cannot be decided at this stage and even in the earlier suit in O.S No.7 of 2011, no such plea was raised by Reddeppa Reddy. The court is required to decide all these questions in the pending suit in O.S No.91 of 2013 on the file of II Additional District Judge, Madanapalle. Hence, I am not inclined to record any finding, as to the source of acquisition of suit schedule property, in view of the limited scope of enquiry in the present revision, leaving it open to the parties, to raise such plea before the competent court i.e. in O.S No.91 of 2013 on the file of II Additional District Judge, Madanapalle.
10 MSM, J C.R.P No.1589 of 2019
19. Though the petitioners herein are claiming that they are the joint owners of the property, such plea cannot be sustained at this stage, in view of the decree and judgment under original of Exs.P5 and P6. However, if the petitioners before this Court are able to establish that they are joint owners or co-owners along with the respondent, a temporary injunction cannot be granted, exercising power under Order XXXIX, Rule 1 and 2 of C.P.C. But prima facie, a decree was obtained by respondent against his father in O.S No.7 of 2011 on the file of II Additional District Judge, Madanapalle, Chittoor District and the decree became final. Moreover, respondent obtained pattadar passbook, marked as Ex.P2 and in possession and enjoyment of the property in view of Ex.P3 No.2 adangal and No.3 pahani to establish that as on the date of filing of suit, he is in possession and enjoyment of the property, in his own right as owner of the property. The bunch of electricity bills marked as Ex.P7, demand notices marked as Ex.P11 (2 in number), electricity receipts evidencing payment of electricity consumption charges marked as Ex.P12 do establish that the respondent herein is in possession and enjoyment of the property and paying electricity consumption charges for the service connection connected to the schedule property. Thus, the material produced before this Court by the petitioners herein, clinchingly establish prima facie case, in their favour.
20. Coming to the evidence produced before this Court by the petitioners herein and respondents before the trial court, they produced certified copy of registered sale deed dated 21.06.1973 marked as Ex.R1 and voters list marked as Exs.R2 and R3 and extract of registered sale deed marked as Ex.R4 and cancellation deed dated 23.09.2010 marked as Ex.R5, to prove that this property was acquired with the joint family 11 MSM, J C.R.P No.1589 of 2019 nucleus and that these petitioners are also shown as residents of the same property by the enumerator during preparation of voters list. But they are not much relevant for deciding the real controversy, since the subject matter of the property is consisting of five items, 1st item is Ac.5.37 cents of agricultural land, 2nd item is another extent of Ac.1.25 cents, 3rd item is Ac.0.50 cents of agricultural land, similarly 4th item is also agricultural land of Ac.0.37 ½ cents and 5th item is Ac.0.12 ½ cents of agricultural land. Preparation of voters list by enumerator for the election in 1984 is insignificant to decide as to who is in possession of an agricultural land. At best pattadar passbook, No.2 adangal, No.3 pahani, 1 B register and ROR extract are relevant to decide as to who is in possession, cultivating the property and paying land revenue to the government. Therefore, Exs.R1 to R5 are irrelevant for deciding the real controversy and merely because the appellate court did not consider Exs.R1 to R5, the order passed by the appellate court cannot be interfered on that ground.
21. Both petitioners and respondent produced No.2 adangal for the fasli No.1420, corresponding to the Gregorian calendar year 2010. The petitioners also produced No.2 adangal for the same fasli, which would show that the pattadar's name was noted as M. Reddeppa Reddy, S/o.Rami Reddy in Ex.R7. Similarly in Ex.P3, the pattadar name in column No.12 and enjoyer's name in column No.13 was noted as Mudiveti Reddeppa Reddy, S/o. M. Reddeppa Reddy. These entries in the adangals for the same fasli of a financial year, discloses enjoyer's name as M. Reddeppa Reddy, but father's name is changed. In Ex.P3, respondent cultivated the land of an extent of Ac.5.37 cents i.e. item No.1 of the schedule property. Whereas Ex.R7 discloses that father of 12 MSM, J C.R.P No.1589 of 2019 respondent before this Court and grandfather of 1st petitioner herein by name M. Reddeppa Reddy was the pattadar and enjoyer of the property.
22. The recitals of both the documents are conflicting to one another, but it is certain that in terms of Ex.P1 which is allegedly cancelled by executing original of Ex.R5, respondent M. Reddeppa Reddy herein is deemed to be in possession, though, the gift deed was cancelled by executing cancellation deed dated 23.09.2010 and by executing a registered Will dated 23.02.2011 under original of Ex.R6. But this cancellation deed was not accepted by the court in O.S No.7 of 2011 and upheld the gift deed original of Ex.P1. Therefore, to the extent of the land covered by gift deed marked as Ex.P1, respondent is deemed to be in possession of the property by applying the principle of title follows possession. But so far as the other items are concerned, there is absolutely no material to substantiate the contention of either of the parties, as to their possession. The respondent is not claiming the other items of the property under any document, except by succession and the petitioners before this Court i.e. respondents before the trial court are also deemed to be joint owners of the properties i.e. item Nos.2 to 5, for the purpose of deciding the real controversy. Even assuming for a moment that either of the parties, paid electricity consumption charges or taxes i.e. for limited purpose of collection of revenue and electricity consumption charges. The payment would not confer any right or title, exclusively on the person who paid electricity consumption charges or land revenue. Therefore, the material on record, at best would show that the respondent is in possession and enjoyment of item No.1 of the schedule property i.e. Ac.5.37 cents in S.No.281/2 as on the date of filing the suit, but failed to establish his possession enjoyment of the property 13 MSM, J C.R.P No.1589 of 2019 described as item Nos.2 to 5 in the schedule annexed to the plaint. Hence, the respondent is at best entitled to claim a temporary injunction, during pendency of the suit, restraining the petitioners herein from his possession and enjoyment in respect of item No.1 i.e. Ac.5.37 cents in S.No.282/1 only.
23. So far as other items i.e. item Nos. 2 to 5 are concerned, those items are not separate properties of any of the individuals i.e. children of M. Reddeppa Reddy, S/o.Rami Reddy. In those circumstances, it is difficult to restrain the petitioners herein from interfering with the possession and enjoyment of the property, when the property is claimed to be a joint family property. The petitioner Nos.1 to 5 and respondent are deemed to be in joint possession of the property, until it is partitioned by metes and bounds or till passing of any decree by competent court for partition of the same and in the absence of any proof as to the partition of the property and allotment of the same to any one of the parties i.e. petitioners and respondent, in this revision, item Nos.2 to 5 are deemed to be the joint family properties of the petitioners and other coparceners of the joint family. Unless the other coparceners are excluded from enjoyment of the property, the coparceners cannot restrain the other coparceners and the law is well settled by various courts.
24. The High Court of Kerala in Puthiyapura Harris v. Characherrik Hayath1, while considering the principles laid down by the same court in earlier judgment in Avanthika and another v. Sita Bai and others2 1 S.A No.335 of 1999 2 1963 KLJ 1164 14 MSM, J C.R.P No.1589 of 2019 and Madhavan Nambiar v. Narayanan Nair3, has drawn distinction between the rights of co-owners who are claiming to be in joint possession and claiming ouster of another co-owner and held that in Avanthika and another (2nd cited supra), one of the co-owners wanted to recover possession of the suit property from the defendant co-owner and it was held that the defendant co-owner is entitled to be in possession, remedy of the suing co-owner being to sue for partition. That decision was referred to and distinguished in Madhavan Nambiar (3rd cited supra), where the question considered was whether a co-owner in exclusive possession could seek injunction against another co-owner. In paragraph No.4 of the judgment learned Judge distinguished the decision in Avanthika and another (2nd cited supra) and held that the decision does not establish that a co-owner in actual possession is entitled to an injunction as against the other co-owner who is out of possession. In that case, this court refused to grant injunction against co-owner. Where the appellant does not admit the status of the respondents as co-owner, the court cannot apply the principle laid down therein. However in Lingaraj Misra and others v. Bhubaneswar Mohapatra and others4, in paragraph No.11, the Orissa High Court held that in a suit between co-owners, an injunction to protect possession of the suing co-owner could be granted in case of proof of ouster.
25. In another judgment of this Court reported in Rasool Bee and others v. Gousiya Begum, Nalgonda5, the learned Single Judge of this Court held that when there is prima facie material to show that the 3 1970 KLT 653 4 AIR 1962 Orissa 31 5 2003 (4) ALT 99 15 MSM, J C.R.P No.1589 of 2019 defendant is also a joint owner of the suit schedule property along with the plaintiffs, an injunction against a co-owner cannot be granted at the instance of other co-owners unless they establish that the acts of the defendants are resulting in causing damage to the property. Similarly the High Court of Madras in T.P Vadivelu v. S. Padmavathy6, considered the scope of granting injunction in favour of one co-owner against the other co-owner and held that when a part of the property is in exclusive possession of one co-owner ousting the other co-owner from enjoyment of the same, the court can grant and injunction in favour of one co-owner against the other. In Tanusree Basu and others v. Ishani Prasad Basu and others7, the Apex Court placing reliance on earlier judgment in Bhaguji Bayaji Pokale and others v. Kantilal Baban Gunjawate and others8 and another judgment in Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others9, the Apex Court drawn distinction between the principles laid down by the Apex Court. In Bhaguji Bayaji Pokale and others (8th cited supra), the Supreme Court held in para No.7 as follows: With regard to second substantial question of law, i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants had relied upon the Apex Court's judgment in Mohammad Baqar and others v. Naim-un-Nisa Bibi and others. The Apex Court has very categorically held in para No.7 as under:
"The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co- sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, 6 S.A No.1403 of 2005 7 Civil Appeal No.1767 of 2008 8 1998 (3) CCC 377 (Bom.) 9 AIR 1967 S.C 109
16 MSM, J C.R.P No.1589 of 2019 and exclusion and ouster following thereon for the statutory period" and observed "similarly, the legal position that the co- owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well settled law".
Further observed that we are concerned in this case with a question whether if a co-owner was in specific possession of the joint property, he could be dispossessed therefrom without the intervention of the court. In this case, the first respondent is not claiming title of adverse possession. The said decision has, therefore, no, application to the facts of the present case. Reliance has also been placed in Abu Shahid v. Abdul Hoque Bobhash and another10, Hemanta Kumar Banerjee and others v. Satish Chandra Banerjee and others11 and Jahuri Sah and others (9th cited supra), the Court opined, "What we have to consider then is whether the contract for payment of compensation is not enforceable. It is no doubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such a se and no other. Co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the 10 AIR 1940 Cal 363 11 AIR 1941 Cal 635 17 MSM, J C.R.P No.1589 of 2019 property shall pay to the other co-owners compensation...". Thus in view of the law declared by various courts it is abundantly clear that a co- sharer or a co-owner or a coparcener is not entitled to claim an injunction against the other co-owners, since the possession of one co- owner is the possession of all.
26. In the present facts of the case, O.S No.91 of 2013 is pending on the file of II Additional District Judge, Madanapalle for partition of the property filed by the petitioners herein, but the respondent claiming title to the property and possession based on gift deed in respect of item No.1, but the other petitioners also set up title to the property in different mode. Moreover the petitioners were not able to establish their actual possession based on any material like No.2 adangal or No.3 pahani or pattadar passbook etc. In the absence of any proof, that the petitioners herein are in possession and enjoyment of item Nos.2 to 5 as on the date of filing of suit, by producing cogent and satisfactory evidence, to prove their exclusive possession ousting the petitioners herein from enjoyment of the property.
27. The learned Counsel for the petitioner Nos.1 to 5 has placed reliance on two bench judgment of Apex Court in Rame Gowda (died) by LRs v. M. Varadappa Naidu (died) by LRs and another12, where the Apex Court held that when the suit is filed with an allegation that the defendant is trying to encroach the land of the plaintiff and the court found that the plaintiff proved his possession but he failed to prove his title, the person in title is entitled to a decree for perpetual injunction since the suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept open without denying 12 2004 (2) ALD 31 (SC) 18 MSM, J C.R.P No.1589 of 2019 the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means, just prior to the suit. It is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. Even to apply the principle laid down in the above judgment, it is for the petitioners herein to prove that they are in possession and enjoyment of the property as on the date of filing suit. But the petitioners herein did not produce any scrap of paper to establish that they are in possession and enjoyment of the property as on the date of filing the suit and that their legal right is invaded or threatened to be invaded by the petitioners in respect of item Nos.2 to 5. In the absence of such material, the order passed by the learned II Additional District Judge, Madanapalle to the extent of item Nos.2 to 5 cannot be sustained, while upholding the interim injunction granted in favour of respondent and against the petitioners for item No.1 of suit schedule property.
28. The learned Counsel for the petitioners contended that when the respondent approached the court claiming the discretionary relief of temporary injunction, it is for them to prove the three requirements which are sina quo nan, for granting perpetual injunction referred above and that the weakness in the case of the petitioners cannot be taken as advantage to claim any relief and the respondent herein have to stand on his own legs, placed reliance on judgment of this Court in K. Venkatasubba Reddi v. Bairagi Ramaiah (died) and his L.Rs13. The 13 1999 (3) ALT 210 19 MSM, J C.R.P No.1589 of 2019 Single Judge of this Court held that the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of defendant's case. The law laid down by the Supreme Court and also by the Division Bench of this Court in the ejectment suits is also applicable to the suits for declaration of title. Thus, the plaintiff must succeed by establishing his own title, by adducing satisfactory evidence and he cannot succeed on the weakness of the defendant's case. In the instant case, the respondent-plaintiff failed miserably to establish his title to the disputed site. His own title deed Ex.B1 does not support his case. The site purchased under Ex.B1 does not extend to the entire extent of site shown in plaint 'A' schedule which includes the disputed site. Therefore, the plaintiff has to be non- suited. The appellate court has committed error in decreeing the suit by deviating from the settled principles, that in a suit for declaration of title, the plaintiff must succeed in establishing his title irrespective of the question whether the defendant has proved his case or not. There is no need to refer to the other discussion held by the appellate court. In the present case, the respondent failed to establish their possession as on the date of filing the suit and thereby not entitled to claim temporary injunction during the pendency of the suit in respect of item Nos.2 to 5. The Bombay High Court in another judgment reported in Fakirbhai Bhagwandas and another v. Maganlan Haribhai and another14, had an occasion to consider the question identical to Rame Gowda (died) by LRs (12th cited supra). Thus, the consistent view of various courts including the Apex Court is that it is for the respondent herein to establish that they are in possession and enjoyment of the property as on the date and that their legal right is invaded or threatened to be invaded, 14 1951 ILR (Bombay) 425 20 MSM, J C.R.P No.1589 of 2019 in the present case, though the petitioners claimed that they are in possession and enjoyment of all the five items of schedule property, but succeeded in establishing that they are in exclusive possession and enjoyment of item No.1, but failed to establish that they are in possession and enjoyment of item Nos.2 to 5 as on the date of filing suit and that their right is invaded or threatened to be invaded by the petitioners herein. Hence, if am of the considered view that the order passed by the learned II Additional District Judge, Madanapalle, granting temporary injunction in favour of the respondent herein, against the petitioners restraining them from interfering with the possession and enjoyment of item Nos.2 to 5 of the schedule property is erroneous and while upholding the order passed by the appellate court in respect of item No.1 i.e. Ac.5.37 cents in S.No.282/1 restraining the petitioners from interfering with the possession and enjoyment of the respondent.
29. The prime requisites for grant of temporary injunction is prima facie case, balance of convenience and irreparable loss. In the present case, though the respondent claiming that he is in exclusive possession and enjoyment of the property and whereas the petitioners before this Court are claiming that they are in joint possession and enjoyment of the property, at this stage, it is difficult to decide as to who is in actual possession and enjoyment of the property, in view of previous litigation. However, it is suffice to conclude that in view of the decree and judgment in O.S No.7 of 2011 marked as Exs.P5 and P6 coupled with Exs.P2 and P3, this Court can safely conclude that the petitioners are in possession and enjoyment of the property, thereby they establish their prima facie case, prima facie case is not defined anywhere, but in the judgment 21 MSM, J C.R.P No.1589 of 2019 reported in Ms. Julien Eductional Trust Vs. Sourendra Kumar Roy and others15, the Hon'ble Apex Court held as follows:
"We are satisfied from the material on record that a prima facie case has been made out by the appellant Trust as to the agreement for sale, "which has to go to trial." Whether there was a concluded contract or not between the appellant Trust and the respondent Nos. 1 to 8 is a matter of evidence and can only be gone into during the trial of the suit. This brings us to the all important question as to whether the balance of convenience and inconvenience lay in favour of the grant of an interim order of injunction in favour of the appellant Trust and as to whether the appellant Trust would suffer irreparable loss and injury, if no such interim order was passed."
"We are of the view that this is one such case where an interim order is required to be passed to maintain the status quo of the suit property, during the pendency of the suit for specific performance filed by the appellant Trust, but at the same time appropriate directions should also be given so that the suit is disposed of expeditiously."
In another decision reported in Allappuzha Municipality v. T.J.Paul16, the Kerala High Court held as follows:
"The court should consider whether there is a "bona fide contention between the parties or a serious question to be tried". With due regard to the said facts and circumstances, it is undoubtedly clear that there is a fair and debatable case for the revision petitioner to go for trial, the court can accept that there is a prima facie case."
In another judgment reported in United Commercial Bank v. Bank of India17, the Hon'ble Apex held as follows:
"No injunction could be granted under Order XXXIX Rules 1 and 2 of the Code unless the plaintiffs establish that they had a prima facie case, meaning thereby that there was a "bona fide contention between the parties or a serious question to be tried."
30. The respondent herein also established that he will sustain irreparable loss in the event the petitioners herein are allowed to invade the legal right of the respondent and thereby the respondent herein could establish that he will sustain irreparable injury in case no injunction is granted and the inconvenience being caused to the respondent herein is more than the inconvenience likely to be caused to the petitioners herein. Therefore, I find balance of convenience is also in favour of the 15 2010(1) ALT page 58 (SC) 16 1995 Kerala pages 36 to 39 17 AIR 1981 SC page 1426 22 MSM, J C.R.P No.1589 of 2019 petitioners and thereby they are entitled to claim temporary injunction during pendency of the suit, restraining the petitioners herein from interfering with the possession and enjoyment of the property described as item No.1 in the schedule, an extent of Ac.5.37 cents in S.No.281/2, while negating the relief of temporary injunction under Order XXXIX, Rule 1 and 2 of C.P.C against the petitioners herein and in favour of the respondent for the remaining item Nos.2 to 5 and consequently the order passed by II Additional District Judge, Madanapalle in C.M.A 3 of 2017 is modified as follows:
The petitioners herein/respondents before the trial court are hereby restrained from interfering with the peaceful possession and enjoyment of item No.1 of the suit schedule property i.e. Ac.5.37 cents in S.No.281/2 by the respondent herein/petitioner before the trial court, during pendency of the suit, while setting aside the order of interim injunction granted by the appellate court in respect of item Nos.2 to 5 described in the schedule annexed to the plaint.
31. With the above modifications, this revision petition is disposed of.
32. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated .11.2019 Rvk