Judgment:
ORDER
Immaneni Panduranga Rao, J.
1. The defendant preferred this revision against the reversing judgment of the learned Subordinate Judge in CMA No. 28 of 89. The respondents who are the plaintiffs 1 and 2 in the suit filed IA No. 571 of 89 in OS No. 78 of 89 on the file of the District Munsif's Court at Ponnur for temporary injunction alleging that the property belongs to Khairunnisa Bee, the mother of the first plaintiff and the defendant, (the first plaintiff and the defendant being brothers), that The first plaintiff got the property under Ex. AI gift deed dated 22-10-88; that even by the date of Ex. AI, the second plaintiff was cultivating the suit land as a tenant and that as such, the plaintiff's are in Possession and enjoyment of the suit property by the date of the suit.
2. The defence of the defendant is that there is no necessity for Khairunnisa Bee to lease out the suit land when her children who are capable of cultivating the land are available, that she gave the land on lease to the defendant; that he was paying the rent regularly to his mother during her life time; that she did not execute any document during her life time and that after her death, her properties including the suit property are liable to be partitioned among her legal heirs as per the Muslim Law of Su ccession.
3. The learned District Munsif held that there is not even a whisper in Ex. AI that the second plaintiff was cultivating the plaint schedule property by the date of its execution and that the first plaintiff was put in possession through the tenant. The learned District Munsif did not rely upon Exs. A 4 to A 7 cist receipts filed by the plaintiff's as they were issued in the name of Khairunnisa Bee prior to the date of execution of Ex. A1. The learned District Munsif did not rely upon Ex. A8 cist receipt for the fasli 1398 dated 10-3-89 issued in the name of the first plaintiff on the ground that disputes arose between the brothers even by then. Consequently, he held that the plaintiff's failed to prove that the second plaintiff was cultivating the suit property as on the date of Ex. A1. No doubt, the learned District Munsif observed in the source of his judgment that Exs. B 5 to B9 certified copies of No. 2 accounts fiield by the defendant cannot be acted upon because Khairunnisa Bee had some other land in addition to the suit property and the defendant must prove that Exs. B 5 to B9 relate to the plaint schedule land. However, since the plaintiff's have not proved prima facie case and balance of convenience, the learned District Munsif dismissed the petition.
4. The learned Subordinate Judge seems to have been carried away by the fact that Ex. A1 gift deed dated 22-10-88 is prior to the filing of the suit and therefore, he assumed that the first plaintiff was given possession of the plaint schedule land and that the second plaintiff is in possession through the first plaintiff. The learned Subordinate Judge tried to discuss the case of the defendant in the first instance and having held that the defendant did not file the Maktha receipts into the court in order to show that he is the tenant, the learned Subordinate Judge assumed that the plaintiffs have established prima facie case in their favour than the respondent (the defendant). The learned Subordinate Judge simply held that Ex. A1 shows the first plaintiff's right to the property, that Exs. A4 to A7 are the cist receipts in favour of the mother of the first plaintiff; that Ex. A8 is in' the name of the first plaintiff and so prima facie Ex. A1 coupled with Ex. A8 clinchingly show that the first plaintiff is in possession of the property by the date of filing of the suit. But the learned Subordinate Judge has ignored the important fact that Ex. A8 cist receipt issued in the name of the first plaintiff has emanated subsequent to the passing of notices between the first plaintiff and the defendant. Since the defendant did not file the Maktha receipts into the court in order to show that he is the tenant, the learned Subordinate Judge jumped to the conclusion that a prima facie case is made out in favour of the plaintiff's.
5. The very approach of the learned Subordinate Judge is wrong. It is for the plaintiff's to establish prima facie that they were in possession of the suit property on the date of the suit. The court cannot depend upon the weakness in the case of the defendant and because the defendant did not establish his case of alleged tenancy, it cannot come to the conclusion that the plaintiff's case must be true. The learned Subordinate Judge held that the lower court came to the conclusion in paragraph 17 of its judgment that the respondent (defendant) has failed to prove that he is the cultivating tenant of the plaint schedule land and so when the defendant failed to establish that he is the tenant, then the only alternative for the court is to accept the evidence put forth by the plaintiff's as true. Consequently, he held that the trial court erred in holding that the second plaintiff's name was not mentioned in Ex. Al as the tenant. Merely because the defendant failed to establish the tenancy pleaded by him, it does not follow, as assumed by the learned Subordinate Judge, that the plaintiff's case must be true. Irrespective of whether the defendant's contention is true or not, the court 'cannot' grant temporary injunction unless the plaintiffs establish prima facie that they were in possession of the suit property on the date of the suit. The learned Subordinate Judge has thus, committed a material irregularity in arriving at the conclusion with regard to the plaintiff's possession on the date of the suit.
6. The revision is, therefore, allowed setting aside the judgment and decree of the learned Subordinate Judge in CMA No. 28 of 89 granting temporay injunction in favour of the plaintiff's. There shall be however, no order as to costs.