Andhra HC (Pre-Telangana)
Urumula Yellamma W/O.Late Venkatappa ... vs 1)Pullapati Raja Rao, 2)Pullapati ... on 4 October, 2012
Author: B.N. Rao Nalla
Bench: B.N. Rao Nalla
HON'BLE SRI JUSTICE B.N. RAO NALLA C.M. A. No.437 of 2005 04.10.2012 Urumula Yellamma w/o.late Venkatappa Reddy 1)Pullapati Raja Rao, 2)Pullapati Rupadhar, 3) Pullapati Lata, 4)Pullapati Usharani Counsel for the Appellant: Sri K.S.Murthy Counsel for Respondent No.1: Sri P.Thirumala Rao ^Counsel for Respondents 2 to 4 : Sri Upendra Chakravarthy <GIST : >HEAD NOTE : ?Cases referred : JUDGMENT:
This Civil Miscellaneous Appeal is preferred assailing the order dated 11.03.2005 in I.A. No.1205 of 2004 in O.S. No.497 of 2004 on the file of the Court of Principal Senior Civil Judge, Guntur.
2. The appellant herein is the petitioner - plaintiff and the respondents herein are the respondents - defendants in the I.A. Suit is filed for declaration and for consequential injunction restraining the respondents - defendants, their men from interfering with possession and enjoyment of the petitioner - plaintiff over the suit schedule property.
3. For the sake of convenience, the parties hereinafter referred to as they arrayed in the I.A.
4. The petitioner filed the present I.A. under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short 'CPC') for temporary injunction restraining the respondents, their men, agents etc. in any way interfering with the peaceful possession and enjoyment of the petitioner over the petition schedule property or from entering into any transactions of alienation or lien or charge pending disposal of the suit. After enquiry, the trial Court dismissed the I.A. holding that the petitioner has not proved prima facie case, balance of convenience or irreparable loss. Aggrieved thereby, the petitioner filed the present Civil Miscellaneous Appeal.
5. It is the case of the petitioner before the trial Court that originally her mother - Challa Narasamma had purchased the petition schedule property from respondent No.1 - Pulipati Raja Rao and his mother under notarized agreement of sale dated 15.11.1974 and possession was also delivered to her. Thereafter, petitioner's mother - Challa Narasamma and brother - Sambireddy had sold the property in favour of the petitioner under sale deed dated 2.4.2002 and she has been in possession and enjoyment of the same. The respondents without any manner of right are trying to interfere with peaceful possession of the petitioner over the petition schedule property. Hence the petitioner preferred the present I.A.
6. It is the case of the respondents before the trial Court that respondent No.1 or his mother never sold any property under the alleged agreement of sale dated 15.11.1974 to the petitioner's mother - Challa Narasamma and they never delivered possession of the petition schedule property to her. In fact, the respondents are in possession and enjoyment of the petition schedule property. The petitioner is making all efforts to mutate her name in the revenue records in respect of the petition schedule property. Further, with regard to the petition schedule property, O.S. No.34 of 1999 on the file of the IV Additional District Judge, Guntur, is pending.
7. Heard the learned counsel on either side and perused the material available on record.
8. It is the contention of the learned counsel for the petitioner (appellant herein) that the trial Court should have seen that from the date of agreement of sale, the mother of the petitioner was in possession and thereafter pursuant to the sale deed, the petitioner is in possession of the petition schedule property and the same is evident from Exs.A.1 to A.8. The trial Court failed to notice that respondent No.1 admitted in his deposition in O.S.No.234 of 1979 on the file of the Subordinate Judge, Guntur that he and his mother sold away Ac.2-00 to the mother of the petitioner about 10 years back. The trial Court, while dealing with a temporary injunction application, ought not to have gone into title, and it ought to have seen who is in actual possession of petition schedule property. Further, the trial Court failed to notice that in O.S.No.234 of 1979, the advocate commissioner in his report stated that petitioner herein purchased the petition schedule property and has been in possession of the same.
9. The learned counsel for the respondents submitted that the impugned order passed by the trial Court needs no interference at the hands of this Court as the trial Court has given cogent and convincing reasons for dismissing the application filed by the petitioner under Order 39 Rules 1 and 2 of CPC. As such, there are no merits in the C.M.A. and the same is liable to be dismissed.
10. It is seen that the petitioner claiming title and possession over the petition schedule property by mainly relying on documents Exs.A.7- agreement of sale dated 15.11.1974 and A.1 -sale deed dated 02.04.2002. It is the contention of the petitioner that originally her mother - Challa Narasamma purchased the petition schedule property from respondent No.1 and his mother under notarized agreement of sale dated 15.11.1974 and that they delivered possession of the same to her mother - Challa Narsamma and thereafter, petitioner's mother and brother - Sambireddy sold the property to the petitioner vide registered sale deed dated 2.4.2002 and since then she has been in possession of the same. The order under appeal does not indicate the extent of the petition schedule property. It is the contention of the respondents that the petitioner is never in possession of the petition schedule property. For seeking temporary injunction, the petitioner has to prove that she is in possession and enjoyment of the petition schedule property on the date of filing of the suit and that she has to comply the provisions of Order 39 Rule 1 and 2 of CPC i.e., prima facie case, balance of convenience in her favour and irreparable loss being caused to her if temporary injunction is not granted. The petitioner in order to prove her possession over the petition schedule property has filed documents - Exs.A.3, A.4 and A.5. But, Exs.A.3 to A.5 are issued based on Exs.A.1 and A.7, and these documents do not in any way establish the possession of the petitioner over the petition schedule property. Except, Exs.A.3 to A.5, the petitioner has not filed any authentic material to show that she is in possession of the petition schedule property as on the date of filing of the suit. As such, it cannot be said that the petitioner has prima facie proved her possession over the petition schedule property. So far as the admission of respondent No.1 in his deposition and the report of the Advocate Commissioner in O.S.No.234 of 1979 on the file of the Subordinate Judge, Guntur are concerned, the petitioner has to bring the same on record during the course of the trial in the suit and it cannot be dealt with at this interlocutory stage.
11. In view of the above discussion and having regard to the facts and circumstances of the case, this Court is of the considered opinion that the impugned order passed by the trial Court does not suffer from any illegality or irregularity warranting interference from this Court, and as such, the C.M.A. is liable to be dismissed.
12. In the result, the C.M.A. is dismissed. There shall be no order as to costs. Since the suit is of the year 2004, the trial Court is directed to dispose of the same as expeditiously as possible, uninfluenced by any of the observations made by this Court in this order.
_________________ B.N. RAO NALLA, J Date:04.10.2012