GANDAM SUJATHA Vs. KATHIRISETTI VENKATA NARASAIAH

JUDGEMENT

(1.) This revision is filed by the defendant who has suffered an injunction at the instance of the respondent-plaintiff. I refer the parties as arrayed in the suit. The plaintiff filed a suit O.S. No. 61/94 on the file of the Principal District Munsif, Srikakulam seeking permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the plaint schedule house property at Srikakulam. In the suit, the plaintiff stated that the poser of the defendant as his daughter-in-law is incorrect as she was not a legally wedded wife of his son. The Court below held that prima facie there is a proof that the defendant is the daughter-in-law of the plaintiff by virtue of her marriage with plaintiff's son and that she, had been in possession of the suit house in the status of daughter-in-law and as a member of the joint family and as such, no injunction can be granted. On an appeal by the plaintiff, the lower appellate Court granted injunction. But, the injunction was not granted on the premise that the plaintiff was in exclusive possession and the defendant was not in possession and that the defendant was trying to trespass the suit house as alleged by the plaintiff. The lower appellate Court, as a matter of fact, found that the defendant had been in possession of the suit house and that she was not a trespasser. Having held so, the lower appellate Court granted injunction dwelling upon the hardship and mental agony which the plaintiff may suffer if the defendant continues to be in possession of the suit schedule house.

(2.) Mr. P. Gangaiah Naidu, the learned counsel for the petitioner contends that having found that the defendant had been in possession of the suit schedule house, the lower appellate Court ought not to have granted injunction. On the contra, Mr. M.S.R. Subrahmanyam, the learned counsel for the respondent vehemently contends and supports the order of the lower appellate Court on the ground that it was only three months before the filing of the suit, the defendant had entered the suit house and her status as daughter-in-law is disputed and that she was a resident of Kakinada and went to Baruch and within a short time she obtained a marriage certificate as though purporting to have married the plaintiff's son and that the said certificate cannot conclude that there was a marriage performed in between the plaintiff's son and the defendant. In this case, having regard to the pleadings and the relief prayed for, it is irrelevant for the Courts below to dwell upon the factum of marriage. The factum of marriage is irrelevant as the plaintiff is seeking injunction against the defendant and not vice versa. Further, a suit in that regard is pending and that will be decided on its own merits. It is up to the Court in Baruch in which the suit is instituted, if it is having jurisdiction, to try the suit basing upon the evidence adduced therein. But, it is totally irrelevant for the purpose of this case. If the defendant was the plaintiff, it could have been relevant consideration as to whether she was in lawful possession. But, the situation is quite reverse as the defendant's possession is proved and there is a concurrent finding of fact that the defendant had been in possession along with the other members. If that be the case, the hardship or mental agony to the plaintiff or other members of his family 'is of no consequence'. Preventive injunction cannot be granted as the perpetual injunction is granted preventing the defendant from doing a particular thing including that of interfering with the possession, pre-supposing that the defendant is not in possession. Once the finding is that the defendant is in possession, the Court is debarred from granting injunction, which is rightly assailed here by the plaintiff and I have got no alternative to interfere with the order passed by the lower appellate Court and to set aside the same. I do so. It is up to the plaintiff to amend the suit seeking for possession and if such an application is filed, the Court below shall allow the same and dispose of the suit expeditiously by the end of this year. But, this revision petition is bound to be allowed and I hereby allow the same setting aside the order passed by the lower appellate Court in C.M.A. No. 18/94.

(3.) The civil revision petition is allowed to the extent indicated above. No costs.