Andhra Pradesh High Court – Amravati
Devathu Musala Rao Papa vs Ragu Anitha on 28 January, 2025
APHC010272432023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3509]
(Special Original Jurisdiction)
TUESDAY ,THE TWENTY EIGHTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
CIVIL MISCELLANEOUS APPEAL NO: 200/2023
Between:
Devathu Musala Rao @ Papa and Others ...APPELLANT(S)
AND
Ragu Anitha and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. ANUP KOUSHIK KARAVADI
Counsel for the Respondent(S):
1. NIMMAGADDA REVATHI
2. JAVVAJI SARATH CHANDRA
The Court made the following:
JUDGMENT:
(per Hon’ble Sri Justice Challa Gunaranjan)
Petitioners/Plaintiffs, being unsuccessful, preferred the present
appeal under Order 43 Rule 1 of CPC aggrieved by the order, dated
19.04.2023, passed in I.A. No.419 of 2022 in O.S. No.35 of 2022 on
the file of the Judge, Family Court-cum-VIII Additional District Judge,
Ongole, Prakasam District, whereby the trial Court dismissed the
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petition filed under Order 39 Rules 1 and 2 of CPC for grant of
temporary injunction restraining the respondents/defendants, their
men, followers and associates from entering or interfering with the
petitioners/plaintiffs’ peaceful possession and enjoyment of the
petition schedule property.
2. The parties are hereinafter referred to as arrayed in the Suit
and I.A. before the trial Court for the sake of convenience.
3. Initially, the 1st plaintiff Devathu Musala Rao, claiming to be the
adopted son of Devathu Sriranganadham, filed the present Suit in
O.S.No.35 of 2022 on the file of the Judge, Family Court-cum-VIII
Additional District Judge, Ongole, Prakasam District, for permanent
injunction restraining the respondents/defendants, their men,
followers, associates and relatives from interfering with the plaintiffs’
peaceful possession and enjoyment of the plaint schedule property,
shown as A-3, A-4, A-5 and A-7 in the plaint plan. As per the schedule
to the plaint, the subject property in issue, as mentioned, is an extent
of Ac.0.46 cents out of Ac.1.44½ cents in Survey No.305 of Ongole
Village and Town. Along with the Suit, the 1st plaintiff also filed I.A.
No.419 of 2022 under Order 39 Rule 1 CPC for grant of temporary
injunction restraining the respondents from entering or interfering with
the plaintiffs’ peaceful possession and enjoyment of plaint schedule
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property in any manner. As the sole plaintiff died intestate, the
plaintiffs 2 to 5/petitioners 2 to 5 were added as legal heirs, by order,
dated 17.11.2022, passed in I.A. No.1467 of 2022.
4. The facts relevant for disposal of present appeal are set out as
under:
It is stated that 1st plaintiff was adopted by Devathu
Sriranganatham. Initially, Devathu Musalaiah acquired an extent of
Ac.0.90 cents in Survey No.305 of Ongole Village and Town under
registered sale deed, dated 26.08.1904 vide document No.1777 of
1904. The said Devathu Musalaiah had three sons viz., Sreeramulu,
Subbarayudu and Sriranganadham. Sriranganadham also
purchased an extent of Ac.1.44½ cents in Survey No.305 of Ongole
village and town, through a registered sale deed, dated 19.09.1931
vide document No.1145/1931. That, out of the total extent of Ac.5.78
cents of land in the aforesaid survey number, in view of the above
acquisition of the aforesaid extents, the petitioners claimed to be the
owners to an extent of Ac.2.34½ cents. Out of which, after the demise
of Devathu Musalaiah, his sons and grandchildren alienated Ac.1.88
cents through various registered sale deeds, thereby left with an
extent of Ac.0.46 cents as shown in the plaint schedule property. The
particulars of sale deeds executed by the sons and grandchildren of
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Devathu Musalaiah are set out in the affidavit filed in support of the
I.A. Further, it is stated that the aforesaid extent of Ac.1.88 cents
covered the entire extent of Ac.0.90 cents which late Devathu
Musalaiah acquired under registered sale deed, dated 26.08.1904
and the remaining extent of Ac.0.98 cents was covered under
registered sale deed, dated 19.09.1931, through which Devathu
Sriranganadham had acquired, thereby, it is stated that the remaining
extent of Ac.0.46 cents corresponding to the balance extent of land
traceable to the sale deed, dated 19.09.1931. That when Sriramulu,
natural brother of the 1st plaintiff, and others tried to encroach upon
the remaining extent of Ac.0.46 cents, the 1st plaintiff had filed
O.S.No.38 of 2008 on the file of V Additional District Judge (Fast
Track Court), Ongole, for declaration and for consequential
permanent injunction which was decreed on 19.04.2011, therefore,
the same would conclude the plaintiffs right, title, possession and
enjoyment in respect of the suit schedule property.
5. It is stated that as the respondents tried to encroach upon the
suit schedule property and started proclaiming that they would file
Suit and will forcibly occupy the suit schedule land, which was just
before a month, the 1st plaintiff filed the present Suit for permanent
injunction restraining the defendants, their men, associations and
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relatives from entering or interfering with the plaintiffs’ peaceful
possession and enjoyment over the plaint schedule property.
6. In support of the petitioners’ claim, they had got marked
Exs.A-1 to A-30 of which Exs.A-2 to A-29 are the registered sale
deeds through which the sons and grandchildren of Devathu
Musalaiah had alienated various extents of lands. Exs.A-1 and A-30
are the registered General Power of Attorney and the copy of the
caveat filed by them apprehending that the respondents/defendants
would institute a Suit.
7. Four separate counters were filed by 1st respondent;
respondent Nos.2 and 3; respondent No.4 and respondent No.6
respectively.
8. In the counter filed by the 1st respondent, the 1st respondent
claimed that he acquired an extent of 34 Gadis in Survey No.305 of
Ongole village from Kata Sura Reddy under a registered sale deed,
dated 30.11.2021 and that his vendor in turn purchased the same
from Manchala Venkata Ramaiah and Manchala Ramesh Kumar
through a registered sale deed, dated 02.09.1983, vide document
No.3239/1983. In turn, Manchala Ramesh Kumar S/o.Manchala
Venkata Ramaiah purchased the property through a registered sale
deed, dated 14.05.1982 vide Document No.1877/1982 from Dande
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Venkateswarlu, GPA holder of Rangaiah. The extent acquired under
the said document was Ac.0.75 cents from out of the total extent of
Ac.5.78 cents in Survey No.305. It is further stated that Manchala
Venkata Ramaiah also purchased an extent of Ac.0.75 cents through
a registered sale deed, dated 01.10.1982, vide document No.2330/
1982 from Dande Krishnaiah S/o.Rangaiah and likewise, an extent of
Ac.0.60 cents through a registered sale deed, vide Document
No.5447/1982, from Dande Narayanamma W/o.Rangaiah.
9. The respondents 2 and 3 claimed to have purchased an extent
of 36 Gadis and 49 sq. ft. through registered sale deeds of even dated
29.12.2017, vide Document Nos.9531/2017 and 9532/ 2017
respectively from Ilavala Krishna Reddy, who in turn, purchased the
same from Manchala Venkata Ramaiah and Manchala Ramesh
Kumar, through registered sale deed, dated 02.09.1983 vide
document No.3239 of 1983, who in turn, seems to have purchased
from Dande Rangaiah’s family, as narrated above.
10. The 4th respondent, in the counter, stated that initially, Dande
Narayanamma purchased an extent of Ac.1.00 cents from Ogirala
Sundara Ramaiah S/o.Subbarayudu, through a registered sale deed,
dated 02.03.1966, vide Document No.165/1966 and on the same day,
acquired another extent of Ac.1.00 cents adjacent to the above
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mentioned land from Arigala Hanumantha Rao S/o.Jalaiah and
Gajula Kotaiah S/o.Subbaiah, through a registered sale deed, dated
02.03.1966, vide Document No.166/1966, which were falling in
Survey No.305 of Ongole Village and Town. Later, upon survey being
conducted in the year 1977, the total extent of land in the possession
of Dande Narayanamma found to be Ac.2.10 cents and the same was
in turn divided into three portions and she had settled the same in
favour of her sons Dande Venkateswarlu an extent of Ac.0.75 cents;
Dande Krishnaiah an extent of Ac.0.75 cents and the remaining
extent of Ac.0.60 cents was alienated to Manchala Venkata Ramaiah
S/o. Hanumaiah, under a registered sale deed, dated 01.10.1982,
vide document No.5447/1982. Manchala Venkata Ramaiah had
further acquired an extent of Ac.0.75 cents from Dande Krishnaiah,
vide document No.2330/1982 dated 31.05.1982 and his son
Manchala Ramesh Kumar acquired an extent of Ac.0.75 cents from
Dande Venkateswarlu through a registered sale deed, dated
14.05.1982, vide Document No.1877/1982, thereby, the total extent
of Ac.2.10 cents, which was acquired by Dande Narayanamma has
now been purchased and stood in the name of Manchala Venkata
Ramaiah and his son Manchala Ramesh Kumar. It is stated that even
before the settlement and sale by Dande Narayanamma, as
mentioned above, the land was divided into 21 plots and that Plot
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No.3 for which GPA was issued by Manchala Venkata Ramaiah and
his son Manchala Ramesh Kumar vide registered Document
No.260/1983, dated 09.09.1983 in favour of Tippareddy
Venkateswarlu S/o.Peri Reddy, who in turn, sold the same to the 4th
respondent through a registered sale deed, dated 29.01.2007, vide
document No.983/2007.
11. Similarly, 6th respondent filed a counter in line with that of the
4th respondent and claimed that he purchased plot No.5 from Kakarla
Govindaiah S/o.Hanumaiah, through a registered sale deed, dated
26.04.2003, vide Document No.1572/2003 and that the said GPA
holder, in turn, acquired the right pursuant to a sale deed, dated
23.04.2003, vide document No.31/BK.4/2003, from Ramachandruni
Venkatrao S/o.Subba Rao, who had previously purchased the said
plot from Manchala Venkata Ramaiah and Manchala Ramesh Kumar
through a registered sale deed, dated 02.09.1983, vide Document
No.3267/1983. The extent claimed under Plot No.5 was 40½ Gadis
or 324 sq. yards.
12. Apart from that, the manner in which respondents acquired
various extents of land, as mentioned in the counters above, all have
taken a consistent stand that out of the total extent of Ac.5.78 cents
in Survey No.305 of Ongole Village and Town, even as per the claim
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of the petitioners, Devathu Musalaiah and Devathu Sriranganadham
purchased an extent of Ac.2.34½ cents and that the remaining extent
of Ac.2.10 cents was acquired by Manchala Venkata Ramaiah and
Manchala Ramesh Kumar from Dande Narayanamma and that as per
the plea of petitioners, an extent of Ac.0.90 cents acquired by
Devathu Musalaiah was sold away and as against the remaining
extent of Ac.1.44½ cents, which was acquired by Devathu
Sriranganadham, the petitioners laid an unapproved lay out to a large
extent of Ac.1.88 cents by including a further extent of Ac.0.43½
cents, thereby, the land belonging to the respondents is sought to be
claimed which is none other than the suit schedule property.
Although the petitioners stated that the sons and grandchildren of
Devathu Musalaiah alienated an extent of Ac.0.98 cents out of
Ac.1.44 cents, neither the plaint nor the affidavit filed in support of the
I.A. sets out the clear extents, details or boundaries to substantiate
their claim that the suit schedule property constitutes the remaining
extent of Ac.0.46 cents i.e., claimed out of Ac.1.44 cents. The
petitioners further claimed that the judgment and decree passed in
O.S.No.38 of 2008 was collusive and, since the respondents were not
parties to the said Suit, it is not binding upon them.
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13. Lastly, it was stated that the claim made by the 1st plaintiff, who
is said to be the adoptive son of Devathu Sriranganadham, is not
supported by any documentary evidence nor does the pleadings
provide specifics and details of such adoption, even to consider that
he, prima facie, was in adoption in the hands of Devathu
Sriranganadham. Hence, the very basis of the institution of the Suit
claiming the property from Devathu Sriranganadham is not
maintainable and liable to be dismissed.
14. No documents were marked on behalf of any of the
respondents.
15. The trial Court based on the above pleadings and contentions
framed the following issue:
“Whether the petitioners are entitled for temporary
injunction as prayed for?
16. Answering the same, the trial Court has taken into
consideration Exs.A-1 to A-30, marked on behalf of the petitioners. A
glance of exhibits marked in the impugned order indicates that Exs.A2
to A-29 relate to various sale deeds executed between 1982 and
2005, which are stated to be executed by the sons and grandchildren
of Devathu Musalaiah. Exs.A1 and A30 are the extract of the
registered GPA of the year 2020 and a copy of the caveat filed by the
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petitioners on 06.04.2022. The trial Court had come to the conclusion
that these documents read with the averments in the plaint were
insufficient to prima facie show that the petitioners were in possession
and enjoyment of the suit schedule property as on the date of filing of
the Suit. The trial Court also concluded that the decree in O.S.No.38
of 2008 by which the petitioners’ title in respect of the very same suit
schedule property was confirmed and permanent injunction was
granted utmost would only show their possession till the date of the
decree and judgment i.e., 19.04.2011. The trial Court also found that
the suit schedule property is being claimed by both the petitioners as
well as the respondents through their respective sources of title with
reference to various sale deeds, therefore, the identity of the property
was an issue in dispute and that until and unless the same is
established, the petitioners cannot be said to have established the
prima facie case and consequent balance of convenience.
17. So far as the aspect of adoption is concerned, the trial Court
opined that the petitioners had not proved the adoption, and
therefore, they were not entitled to the interim injunction. In the
operative portion of the impugned order, the trial Court concludes that
the petitioners are not entitled for permanent injunction.
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18. Heard Sri Anup Koushik Karavadi, learned counsel for the
appellants; Smt.Nimmagadda Revathi, learned counsel for
respondents 1 to 4, 6 and 9, and Sri Javvaji Sarath Chandra, learned
counsel for 5th respondent.
19. Learned counsel for the appellants would contend that the trial
Court, without proper appreciation of the pleadings and documentary
evidence brought on record, recorded findings and concluded that the
evidence brought on record was insufficient and that no iota of
evidence was brought on record to show that they were in possession
and enjoyment of the plaint schedule property, which suffers from
perversity. He would urge that the sale deeds, dated 26.08.1904 and
19.09.1931, through which Devathu Musalaiah and Devathu
Sriranganadham acquired an extent of Ac.0.90 cents and Ac.1.44½
cents, respectively, which were not disputed and coupled with
judgment and decree in O.S.No.38 of 2008, by which the petitioners’
title to the very same suit schedule property was declared and
permanent injunction granted, clearly establishes very strong prima
facie case in their favour for grant of a temporary injunction. He would
contend that the findings recorded in paras.16, 22 and 27 of the
impugned order were clearly perverse, in as much as the trial Court
miserably failed to appreciate and examine the plea raised by them
with reference to the documents exhibited in proper perspective. He
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would further contend that the trial Court had miserably failed to
record specific findings regarding prima facie case, balance of
convenience, and irreparable injury, which are essential tests for
deciding an application under Order 39, Rule 1 CPC when
considering the grant of a temporary injunction. The trial Court
instead of considering the prayer of the petitioners with reference to
the above test, while referring to judgments in Murali Damodar
Kanuri v. Dappu Laxmayya1 and Balakrishna Dattatraya Galande
v. Balkrishna Rammharose Gupta2, which have no relation to the
above aspect, concluded that the petitioners were not entitled to a
permanent injunction, losing the sight of the fact that this was only an
application for a temporary injunction.
20. Learned counsel for the appellants further contended that, in
order to establish prima facie case, the pleadings in the plaint and the
affidavit filed in support of the I.A., and the exhibits marked as Exs.A1
to A30, clearly demonstrate that they were in possession and
enjoyment of the plaint schedule property, whereas, though the
respondents had pleaded tittle to the said property through various
sale deeds, none of the documents were marked in support thereof.
When the subject matter of property is a vacant site, it is his
1
1998 (2) ALT 271 (AP)
2
2019 SCR 398
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contention that one has to proceed on the basis that possession
follows title. In support of the same, reliance is placed on the
judgment of the Hon’ble Apex Court in Anathula Sudhakar v. P.
Buchi Reddy (dead) by LRs.3.
21. Further, learned counsel for the appellants would contend that
the registered sale deed, dated 26.08.1904 vide document No.1777/
1904 and the registered sale deed, dated 19.09.1931 vide document
No.1145/1931, and the judgment and decree passed in O.S.No.38 of
2008, by themselves establish title in favour of the petitioners and this
would satisfy the requirement of prima facie case, in as much as they
have made out a case for trial. When the case set up by the
petitioners has merit for consideration, the same entitles them for
grant of temporary injunction. In support of the same, reliance is
placed on the judgment of this Court in T.Bhoopal Reddy v. Smt.K.R.
Laxmi Bai4.
22. The learned counsel for the appellants also brought to the
notice of this Court I.A.No.1 of 2024 by which it was brought on record
that the 4th respondent had executed a donation deed on 11.12.2024
vide document No.37162/2024, by which part of the plaint schedule
3
(2008) 4 SCC 594
4
1997 SCC OnLine AP 848 = 1998 (1) APLJ 161 = 1998 (1) ALT 292
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property was donated in favour of proposed implead 9th respondent,
in as much as, the respondents are taking steps to create third party
rights over the plaint schedule property, he pleaded that it is a fit case
for granting temporary injunction as otherwise the very purpose of
filing the Suit would get defeated. He also submitted that, initially, the
trial Court had granted ad-interim temporary injunction on
05.05.2022, and the same is continued till 13.06.2022 and the same
could not be extended due to the death of the 1st plaintiff.
23. Smt.Nimmagadda Revathi, learned counsel for the
respondents 1 to 4, 6 and 9, while supporting the impugned order,
contended that the petitioners though pleaded their right to the suit
schedule property through 1st plaintiff, who alleged to be the adoptive
son of Devathu Sriranganadham, except an oral assertion, no
documentary evidence or the details and specifics of such adoption
have been pleaded, therefore, in the absence of which, the very basis
for the institution of the Suit claiming right to the suit schedule
property stands unestablished. Elaborating further, she contended
that the averments made in the plaint and in the affidavit filed in
support of the I.A. are silent about the other heirs of the remaining
two sons of Devathu Musalaiah. Therefore, the 1st plaintiff’s claim
that he was adopted and in view of the death of Devathu
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Sriranganadham intestate, he acquired right to the property, has no
legal basis. It is further contended that the petitioners though traced
their right and title from Devathu Musalaiah and Devathu
Sriranganadham, who said to have purchased an extent of Ac.0.90
cents and Ac.1.44½ cents in Survey No.305 of Ongole Village and
Town, under registered sale deeds dated 26.08.1904 vide document
No.1777/1904 and registered sale deed, dated 19.09.1931 vide
document No.1145/1931 respectively, the originals of those
documents since are not filed and marked as exhibits, the contents
of the same cannot be considered. The petitioners, therefore, cannot
be said to have demonstrated their prima facie case basing on the
pleadings and the documents in Exs.A1 to A30, and even the sale
transactions reflected under the aforesaid exhibits were way back
from the years 1983 to 2005, executed by sons and grandchildren of
Devathu Musalaiah, but not the 1st petitioner, therefore, the trial Court
has rightly come to the conclusion that these documents shall not aid
the claim of the petitioners. A further argument was made that the
original owners, as mentioned above, have sold the entire land i.e.,
Ac.2.34½ cents by making plots with roads, therefore, nothing
remains now further to claim from them. Lastly, it is contended that
the judgment and decree passed in O.S. No.38 of 2008 was rightly
not considered by the trial Court as the said judgment was based on
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admission of one of the defendants to the Suit and that the said
judgment really does not deal with the matter on merits, by which, it
can be inferred that the same was obtained in collusion. The trial
Court, therefore, has clearly recorded findings on these aspects and
held that the petitioners have not demonstrated any prima facie case
and consequently, the balance of convenience and rejected the
application refusing temporary injunction. As the said order clearly
records the opinion of the trial Court regarding prima facie case,
balance of convenience and irreparable injury, which are essential
ingredients for grant of temporary injunction, the view expressed by
the trial Court has to be sustained and prays for dismissal of the
present appeal.
24. Perused the record and considered the rival submissions.
25. It is well settled law that the grant of temporary injunction is
discretionary in nature and the fundamental principle behind granting
an injunction is to maintain the status quo and safeguard the plaintiffs
from infringement of their rights. To that end, the Court has to
consider the circumstances of each case and has no duty to issue an
injunction just because a party asks for one. The three primary
factors which the Courts are required to consider while determining
whether to issue an interim injunction are that the plaintiffs must have
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a prima facie case i.e., a good case at the outset and an actual
reasonable chance of success at trial, balance of convenience which
demands the Court to weigh the possible harm to the plaintiffs if the
injunction is refused against the probable harm to the defendants if it
is issued, and that the Court will favour the party who is likely to
experience more substantial harm if the injunction is not issued and
finally, irreparable injury which the plaintiff has to demonstrate that the
harm that would be suffered when the injunction is denied would not
be financially or otherwise compensated.
26. The Apex Court in various judgments has considered the
parameters and essential ingredients for grant of a temporary
injunction under Order 39 Rule 1 CPC, in particular, in Dalpat Kumar
v. Prahlad Singh5, has observed in paras. 4 and 5 as follows:
“4. Order 39 Rule 1(c) provides that temporary injunction
may be granted where, in any suit, it is proved by the affidavit
or otherwise, that the defendant threatens to dispossess the
plaintiff or otherwise cause injury to the plaintiff in relation to
any property in dispute in the suit, the court may by order
grant a temporary injunction to restrain such act or make such
other order for the purpose of staying and preventing … or
dispossession of the plaintiff or otherwise causing injury to
the plaintiff in relation to any property in dispute in the suit
as the court thinks fit until the disposal of the suit or until
further orders. Pursuant to the recommendation of the Law
Commission clause (c) was brought on statute by Section5
(1992) 1 SCC 719
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86(i)(b) of the Amending Act 104 of 1976 with effect from
February 1, 1977. Earlier thereto there was no express power
except the inherent power under Section 151 CPC to grant ad
interim injunction against dispossession. Rule 1 primarily
concerned with the preservation of the property in dispute till
legal rights are adjudicated. Injunction is a judicial process by
which a party is required to do or to refrain from doing any
particular act. It is in the nature of preventive relief to a litigant
to prevent future possible injury. In other words, the court, on
exercise of the power of granting ad interim injunction, is to
preserve the subject matter of the suit in the status quo for
the time being. It is settled law that the grant of injunction is
a discretionary relief. The exercise thereof is subject to the
court satisfying that (1) there is a serious disputed question
to be tried in the suit and that an act, on the facts before the
court, there is probability of his being entitled to the relief
asked for by the plaintiff/defendant; (2) the court’s
interference is necessary to protect the party from the species
of injury. In other words, irreparable injury or damage would
ensue before the legal right would be established at trial; and
(3) that the comparative hardship or mischief or
inconvenience which is likely to occur from withholding the
injunction will be greater than that would be likely to arise
from granting it.
5. Therefore, the burden is on the plaintiff by evidence
aliunde by affidavit or otherwise that there is “a prima facie
case” in his favour which needs adjudication at the trial. The
existence of the prima facie right and infraction of the
enjoyment of his property or the right is a condition for the
grant of temporary injunction. Prima facie case is not to be
confused with prima facie title which has to be established,
on evidence at the trial. Only prima facie case is a substantial
question raised, bona fide, which needs investigation and a
decision on merits. Satisfaction that there is a prima facie case
by itself is not sufficient to grant injunction. The Court further
has to satisfy that non-interference by the Court would result
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in “irreparable injury” to the party seeking relief and that there
is no other remedy available to the party except one to grant
injunction and he needs protection from the consequences of
apprehended injury or dispossession. Irreparable injury,
however, does not mean that there must be no physical
possibility of repairing the injury, but means only that the
injury must be a material one, namely one that cannot be
adequately compensated by way of damages. The third
condition also is that “the balance of convenience” must be in
favour of granting injunction. The Court while granting or
refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury
which is likely to be caused to the parties, if the injunction is
refused and compare it with that which is likely to be caused
to the other side if the injunction is granted. If on weighing
competing possibilities or probabilities of likelihood of injury
and if the Court considers that pending the suit, the subject
matter should be maintained in status quo, an injunction
would be issued. Thus the Court has to exercise its sound
judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit.”
27. Keeping in mind the aforesaid requirements one has to
consider while granting a temporary injunction, the facts of the
present case and findings recorded by trial Court are tested as under.
The 1st plaintiff claimed to be adopted son of Devathu
Sriranganadham and that the suit schedule property originally
belonged to Devathu Musalaiah and his son Devathu
Sriranganadham, who are said to have purchased the same through
registered sale deeds. Based on the said adoption, 1st plaintiff
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claimed the alleged unsold or remaining extent of Ac.0.46 cents of
land, which is the subject matter of the Suit. On the other hand, the
respondents claimed that Survey No.305 of Ongole Village and town
consists of Ac.5.78 cents, of which, Devathu Musalaiah and Devathu
Sriranganadham owned an extent of Ac.2.34½ cents, while remaining
Ac.2.10 cents was owned by Dande Narayanamma, who acquired
the same from Ogirala Sundara Ramaiah S/o.Subbarayudu and
Arigala Hanumantha Rao S/o.Jalaiah through registered sale deeds
of even date 02.03.1966 vide Document Nos.165/1966 and
166/1966. The petitioners claim that out of the total extent of
Ac.2.34½ cents, under Exs.A2 to A29, an extent of Ac.1.88 cents
have already been alienated, leaving an extent of Ac.0.46 cents
remaining, therefore, they assert that they are rightly claiming the suit
schedule property. Whereas, the respondents contended that the
original owners and their sons have alienated the entire land, to an
extent of Ac.2.34½ cents, by making plots with roads and no land
remains for them to alienate and that the suit schedule land, in fact,
is the land belonging to them which was acquired by them through
their respective sale deeds. The petitioners, to prove that they were
in possession and enjoyment of the plaint schedule property, relied
on the judgment and decree passed in O.S.No.38 of 2008 by which,
the 1st plaintiff was declared as rightful owner of the very same suit
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C.M.A. No.200 of 2023
schedule property and was granted permanent injunction, therefore,
pleaded to have, prima facie, established their right to the property
and so also their possession over the plaint schedule property.
28. The 1st plaintiff, claiming to be the adopted son of Devathu
Sriranganadham, instituted the Suit claiming right to the suit schedule
property, which is stated to have been purchased under a registered
sale deed, dated 19.09.1931. The respondents have taken a specific
plea that neither any documentary evidence in support of the alleged
adoption, nor any details and specifics of such adoption have been
pleaded, and in the absence of such evidence, a mere bald and
vague statement would not amount to valid adoption, thereby, 1st
petitioner would acquire legal right to claim the suit schedule land
from Devathu Sriranganadham and maintain the Suit. Though the
trial Court had adverted to the rival contentions in this regard, no
specific finding has been recorded and jumped to the conclusion that
the petitioners failed to prove the adoption. The question of proving
adoption does not arise at this stage, rather the Court should only
satisfy whether prima facie the claim of the petitioners regarding
adoption was made out or not. We find that the trial Court clearly
committed an error in not recording such a finding on the aspect of
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C.M.A. No.200 of 2023
adoption, which would be the main source to claim right over the suit
schedule property through Devathu Sriranganadham.
29. Coming to the aspect of title to the suit schedule property, as
claimed by the petitioners, it has been pleaded that the said property
was initially purchased by Devathu Musalaiah and Devathu
Sriranganadham under registered sale deeds, dated 29.08.1904 and
19.09.1931, of which, they had alienated an extent of Ac.1.88 cents,
leaving the remaining extent of Ac.0.46 cents which is claimed to be
the suit schedule property. There is specific plea and reference made
to these two sale deeds, though they were not marked as exhibits in
the I.A. The respondents raised an objection for consideration of
these two sale deeds contending that as the original documents of
the same were not filed along with the Suit, the contents of the same
cannot be looked into. However, in the counters filed by them, they
admitted the execution of these two documents through which
Devathu Musalaiah acquired an extent of Ac.0.90 cents and Devathu
Sriranganadham acquired an extent of Ac.1.44½ cents, however,
disputed that the schedule thereto did not mention the boundaries,
therefore, the suit schedule land claimed does not fall under those
documents, thereby the identity of the land has been seriously
disputed. The said objection raised by the respondents has no basis,
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C.M.A. No.200 of 2023
as in law, there is no such requirement of marking the documents as
exhibits at the interlocutory stage of the matters. Rule 115 of Civil
Rules of Practice only envisages marking of exhibits adduced in
evidence as “A, B, C, and X” series, as the case may be, during the
trial, but not for the interlocutory matters. Even the language
employed in Rule 1 of Order 39 CPC prescribes that one seeking
temporary injunction has to prove the injury by way of an affidavit or
otherwise, which, therefore, mere pleading in affidavit would suffice
for the Court to consider grant of temporary injunction and that
marking of documents as exhibits is not mandatory rather it is only for
the sake of convenience. Since the respondents have admitted the
execution of sale deeds by which Devathu Musalaiah and Devathu
Sriranganadham acquired an extent of Ac.2.34½ cents, mere non-
exhibiting of the originals of the said two documents will not
undermine the rights flowing from the said documents. Having said
that, the trial Court while recording finding with respect to prima facie
case has not considered the effect of the said documents on the
ground that no other evidence has been brought on record other than
Exs.A1 to A30, which implies that the trial Court has clearly omitted
to consider the rights as claimed by the petitioners under the said two
documents. In para 16 of the impugned order, the trial Court refers
to Ex.A4 to be the judgment in O.S.No.38 of 2008, however, in the
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RNT, J. & CGR, J.
C.M.A. No.200 of 2023
appendix of evidence appended to the impugned order, Ex.A4 as
marked reflects to be the extract of registered sale deed, dated
26.09.1983 and that the judgment and decree referred above does
not figure as an exhibit at all. The same goes to show that the trial
Court has clearly omitted to consider certain evidence pleaded and
placed on record or did not properly consider the evidence already
brought on record in proper perspective and in the manner as to be
considered for the purpose of recording satisfaction of prima facie
case for grant of temporary injunction.
30. This Court finds that since the petitioners have laid their claim
based on the documents as pleaded in the affidavit filed along with
the I.A., and as referred in the plaint, and so also, the respondents
have laid a claim based on various sale deeds, as referred in the
counters, the least expected from the trial Court was to refer to the
same and appreciate the respective claims for the purpose of
formation of an opinion as to whether a prima facie case was made
out or not, which is clearly lacking in the impugned order. The trial
Court though rightly proceeded by stating that the burden is on the
plaintiffs to establish a strong prima facie case by producing cogent
evidence and in the process of considering such evidence, the Court
should not conduct a mini trial, it later completely misdirected itself in
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C.M.A. No.200 of 2023
appreciating the evidence and complying with the principles essential
for granting a temporary injunction by recording specific findings on
the prima facie case, balance of convenience and irreparable injury.
31. In the matter of granting temporary injunction, it is the duty of
the Court to take into consideration the evidence and relevant
documents before it records a finding. Taking into consideration the
documents does not mean mere referring the same in the judgment,
but there must be some discussion about them before arriving a
conclusion. The interim injunction is no doubt discretionary relief, but
it has to be granted only after applying a judicious mind and on a
proper discussion and appreciation of evidence on record. From the
impugned order passed by the trial Court, we are not able to find that
on proper appreciation of all the documents and pleadings before it
and giving due consideration to the same, the trial Court had recorded
a specific finding with respect to prima facie case, balance of
convenience and irreparable loss or injury and the trial Court has not
recorded specific findings on all the above three considerations.
32. Though the learned counsel for the appellants placed reliance
on the judgment of the Hon’ble Supreme Court in Anathula
Sudhakar3, to buttress his arguments that the principle of possession
follows title should have been applied in as much as the petitioners
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C.M.A. No.200 of 2023
have prima facie established their title through the registered sale
deeds, dated 25.08.1904 and 19.09.1931 and that he referred to the
other judgments in Parkash Singh v. State of Haryana6; T.Bhoopal
Reddy4; Murali Damodar Kanuri1 and Balakrishna Dattatraya
Galande2, to buttress the argument that prima facie case does not
mean that the petitioners have 100% case rather the contentions
raised in the Suit even if qualify merit of consideration, the Court
should consider grant of temporary injunction and that the prima facie
case has to be looked from the perspective of both sides based on
pleadings and documents exhibited, we are not expressing any
opinion on merits as it is found that the trial Court has not recorded
specific findings regarding prima facie case, balance of convenience
and irreparable injury.
33. Accordingly, the appeal is allowed. The impugned order is set
aside and the matter is remanded to the trial Court for fresh
consideration and the trial Court is directed to hear the parties and
pass orders in the I.A. afresh within a period of three months from the
date of receipt of a copy of this judgment, uninfluenced by any of the
observations made in this judgment. No order as to costs.
6
2002 SCC OnLine P & H 61
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34. This Court has passed an interim order on 27.12.2024,
directing the parties to maintain the status quo in respect of the plaint
schedule property, considering that ad-interim injunction continued
until 13.06.2022, before the trial Court, which, we direct to continue
till the disposal of the I.A. afresh by the trial Court.
As a sequel, miscellaneous petitions pending consideration, if
any, in this case shall stand closed.
_________________________
JUSTICE RAVI NATH TILHARI
_____________________________
JUSTICE CHALLA GUNARANJAN
Date:28.01.2025.
cs
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