Or. 39 rule 1 & 2 CPC - prima facie when the petitioner could not establish his possession in the above said I.A., the relief could not be granted, unless the matter is further gone into the merits with regard to the title and possession in the main suit.
Trial Court
Unregistered Will -vs- Registered Will
In such circumstances, no temporary injunction can be granted at this juncture the trial court came to a conclusion that the factum of possession would be decided in the main suit and thus the petitioner has failed to establish his prima-facie case and balance of convenience in his favour and as such, the petitioner is not entitled for temporary injunction as prayed for and there would be no irreparable loss to the petitioner, even if temporary injunction is refused
CMA
After hearing both sides, the IX Additional District Judge, Machilipatnam observed that as per the proceedings of Revenue Divisional officer, dated 20.09.2019, Pattadar pass book issued in favour of the petitioner was cancelled and his family member certificate was also cancelled and as such, he is not entitled for equitable relief of injunction. The petitioner as well as the respondents are claiming title over the petition schedule property. When there is a serious dispute with regard to the title between the parties, simple suit for permanent injunction is not maintainable. In these circumstances, it is not just and proper to grant temporary injunction in favour of the petitioner. Accordingly, the CMA was dismissed,
CRP
Having regard to the facts and circumstances, since both the Courts below have come to a conclusion on prima facie that the petitioner could not establish his possession in the above said I.A., the relief could not be granted, unless the matter is further gone into the merits with regard to the title and possession in the main suit. In such circumstances, no temporary injunction can be granted at this juncture and as such, this Court is not interfering with the orders of the Courts below. Accordingly, the Civil Revision Petition is dismissed
AP HIGH COURT
| CRP/982/2020 | Gokapai Gandhi, |
THE HON’BLE SRI JUSTICE B.KRISHNA MOHAN
CIVIL REVISION PETITION NO.982 of 2020
ORDER:
This Civil Revision Petition is filed challenging the
order in CMA No.8 of 2019 on the file of the Court of the IX Additional
District Judge, Machilipatnam, dated 25.02.2020 confirming the
order in I.A.No.738 of 2018 in O.S.103 of 2018, dated 16.07.2019 on
the file of the Senior Civil Judge, Avanigadda.
2. Heard the learned counsel for the petitioner.
3. The petitioner herein is the plaintiff in Original Suit No.103 of
2018 on the file of the Senior Civil Judge, Avanigadda. The said suit
is filed seeking permanent injunction against the defendants therein
with respect to item Nos.1 and 2 of the Plaint schedule property.
Pending suit, the petitioner also filed I.A.738 of 2018 before the Senior
Civil Judge, Avanigadda under Order XXXIX Rules 1 and 2 CPC and
Section 151 of CPC seeking to grant temporary injunction restraining
the respondents, their followers and successors from interfering with
the petition schedule property, contending that the petitioner’s father
said to have executed an unregistered Will, dated 19.11.2016
bequeathing the petition schedule property and he died later on
19.09.2017 and ever since, the petitioner has been in possession and
enjoyment of the petition schedule property. While so, the
respondents/defendants are trying to trespass into the schedule
property under the guise of a registered Will said to have been
executed by their father, dated 23.09.2016.
4. After hearing both the parties in I.A No.738 of 2018 and relying
upon the documents submitted before the trial court, the trial court
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came to a conclusion that the factum of possession would be decided
in the main suit and thus the petitioner has failed to establish his
prima-facie case and balance of convenience in his favour and as
such, the petitioner is not entitled for temporary injunction as prayed
for and there would be no irreparable loss to the petitioner, even if
temporary injunction is refused. Accordingly, the I.A.No.738 of 2018
was dismissed on 16.07.2019.
5. Aggrieved by the order in I.A.No.738 of 2018 in O.S.103 of 2018
on the file of the Senior Civil Judge, Avanigadda, dated 16.07.2019,
the petitioner filed CMA No.8 of 2019 on the file of the IX Additional
District Judge, Machilipatnam, Krishna District.
6. After hearing both sides, the IX Additional District Judge,
Machilipatnam observed that as per the proceedings of Revenue
Divisional officer, dated 20.09.2019, Pattadar pass book issued in
favour of the petitioner was cancelled and his family member
certificate was also cancelled and as such, he is not entitled for
equitable relief of injunction. The petitioner as well as the respondents
are claiming title over the petition schedule property. When there is a
serious dispute with regard to the title between the parties, simple
suit for permanent injunction is not maintainable. In these
circumstances, it is not just and proper to grant temporary injunction
in favour of the petitioner. Accordingly, the CMA was dismissed, vide
order, dated 25.02.2020.
7. Aggrieved by the order of the IX Additional District Judge,
Machilipatnam, Krishna District in CMA No.8 of 2019, dated
25.02.2020, the present Civil Revision Petition is filed by the
petitioner.
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8. The learned counsel for the petitioner contends that before the
Courts below, there was an exparte injunction, upon filing the vacate
stay applications, on merits, the I.A was dismissed, since the suit
itself is for permanent injunction, the courts below ought not have
gone into the aspect of title to the property and denied grant of
injunction to the petitioner and sought for protection of the
possession.
9. Having regard to the facts and circumstances, since both the
Courts below have come to a conclusion on prima facie that the
petitioner could not establish his possession in the above said I.A.,
the relief could not be granted, unless the matter is further gone into
the merits with regard to the title and possession in the main suit. In
such circumstances, no temporary injunction can be granted at this
juncture and as such, this Court is not interfering with the orders of
the Courts below.
10. Accordingly, the Civil Revision Petition is dismissed. However,
the trial Court is directed to proceed with the suit by giving due
opportunity to all the parties concerned as expeditiously as possible
and dispose of the same in accordance with law. There shall be no
order as to costs of the Civil Revision Petition.
As a sequel thereto, miscellaneous petitions, if any, pending in
the Civil Revision Petition shall stand closed.
_______________________________
JUSTICE B. KRISHNA MOHAN
13.08.2020
mp
