HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL No.247 of 2022
JUDGMENT:
Plaintiff in suit O.S.No.141 of 2021 filed the above civil miscellaneous appeal under Order XLIII Rule 1 of CPC, against the order and decree dated 09.05.2022 in I.A.No.804 of 2021 in O.S.No.141 of 2021 on the file of XII Additional District Judge, Guntur.
2. Parties to this judgment are referred as per their array in the plaint.
3. Plaintiff filed suit O.S.No.141 of 2021 seeking partition of plaint schedule properties into three equal shares and to allot one such share to the plaintiff.
4. The averments in the plaint, in brief, are that plaintiff and 2nd defendant are brothers; 1st defendant is their mother; 3rd defendant is wife of 2nd defendant and 4th defendant is son of defendants 2 and 3. Plaintiff, defendants 1 and 2 constitute Hindu undivided joint family and father of plaintiff by name Venkateswarlu was the manager of the joint family; that during the lifetime of father in the year 2017, 2 compensation was awarded to the family under Rehabilitation and Resettlement package from the Government for acquiring land for Polavaram project; that an extent of nearly Ac.20.79 cents of the joint family lands were acquired by the Government; that basing on entries in the revenue records, an amount of Rs.1,39,51,462/- was deposited in the name of Venkateswarlu; an amount of Rs.42,24,333/- was deposited in the name of 1st defendant; an amount of Rs.48,70,834/- was deposited in the name of 2nd defendant and an amount of Rs.29,63,129/- was deposited in the name of plaintiff. Thus, the family in total received an amount of Rs.2,60,09,758/-; that father Venkateswarlu died on 14.12.2018 leaving behind the plaintiff, defendants 1 and 2 as his legal heirs; that defendants 1 and 2 expressed intention to purchase properties in the joint names of plaintiff and 2nd defendant, as the family continued to be joint and no partition was effected; that 2nd defendant being the eldest son took over the management of joint family; that plaintiff reposed faith and confidence in 2nd defendant, however, plaintiff recently came to know that defendants purchased plaint A, B and C schedule properties in the names of defendant 2 to 4; that on 3 noticing the fraudulent acts, plaintiff questioned the defendants; that 1st defendant remained silent; that item No.1 of plaint A schedule was purchased in the name of 2nd defendant under an agreement of sale dated 19.02.2018; item No.2 of plaint A schedule was purchased in the name of 2nd defendant under a registered sale deed dated 10.08.2021; that plaint B schedule property was purchased in the name of 3rd defendant under an agreement of sale dated 20.04.2018 and plaint C schedule property was purchased in the name of 4th defendant under a registered sale deed dated 19.09.2019; that the transactions referred supra were purchased by utilizing the joint family money denying the legitimate rights and share of plaintiff in the joint family and hence, suit was filed for partition.
5. Along with the suit, plaintiff filed I.A.No.804 of 2021 under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction restraining the respondents 1 to 4 in anyway meddling with the plaint schedule properties by creating any type of documents, pending disposal of the suit. In the affidavit filed in support of the petition, plaintiff reiterated the 4 averments in the plaint and prayed for grant of temporary injunction.
6. 2nd Respondent filed counter and opposed the application. It was contended interalia that partition was effected in 2011 and the names were entered into revenue records; that the Government acquired the lands individually and awarded the compensation; that item No.1 of plaint A schedule was purchased under an agreement of sale and it is pending for registration; that item No.2 of plaint A schedule was purchased by 2nd defendant from his vendors for the purpose of constructing a house; that plaint B schedule property was purchased by 3rd defendant with his own funds under an agreement of sale of 2018 and it is pending for registration; that plaint C schedule property was purchased by 2nd defendant from his own money; that plaint E schedule property is only an imagination of plaintiff; that in respect of plaint D schedule property, 2nd defendant stated that he has no objection for partition; that plaint A, B and C schedule properties are not joint family properties and eventually, prayed the Court to dismiss the petition.
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7. During the enquiry, on behalf of petitioner, Exs.A-1 to A-3 we remarked. No documents were marked on behalf of 2nd respondent.
8. Trial Court by order dated 09.05.2022 dismissed the application. Aggrieved by the same, the above civil miscellaneous application is filed.
9. Heard Ms.Nimmagadda Revathi, learned counsel for the appellant and Sri Gandham Siva Prasad, learned counsel for 2nd respondent.
10. Learned counsel for appellant would submit that ancestral property was acquired by the Government and awarded compensation and the 2nd respondent purchased the schedule properties out of the compensation amount in favour of himself, respondents 3 and 4. She would also submit that unless injunction is granted restraining the respondents from meddling with the schedule properties, they will create third party interest, which would result in multiplicity of proceedings. She would also submit that since the 2nd respondent admitted about receiving of compensation it being ancestral, any property purchased subsequent to 6 that constitutes as joint family property and hence, the petitioner is entitled to a share in it and the trial Court did not consider the said aspect. She would further submit that the appellant proved prima facie case, balance of convenience and irreparable loss for grant of temporary injunction.
11. Learned counsel for 2nd respondent supported the order of the trial Court.
12. Basing on the above contentions, the following points arise for consideration:
(1) Whether the appellant proved prima facie case, balance of convenience and irreparable loss for grant of injunction?
(2) Whether the order under appeal warrants any interference?
(3) To what relief?
13. The contention of the appellant is that plaint schedule properties were purchased by 2nd respondent out of money deposited by the Government pursuant to acquisition approximately Ac.20.79 cents of land belonged to joint family. According to the appellant, an amount of Rs.1,39,51,462/- was deposited in the name of Venkateswarlu; an amount of 7 Rs.42,24,333/- was deposited in the name of 1st defendant; an amount of Rs.48,70,834/- was deposited in the name of 2nd defendant and an amount of Rs.29,63,129/- was deposited in the name of plaintiff. He also would contend his father died on 14.12.2018.
14. 2nd Respondent would contend that there was partition in the year 2011 and the Government acquired the lands and deposited compensation in the respective bank accounts. There is no joint family and hence, no injunction can be granted.
15. During the course of enquiry, Exs.A-1 to A-3 were marked. Ex.A-1 is registered sale deed dated 19.08.2021, Ex.A-2 is registered sale deed dated 19.09.2019 and Ex.A-3 is legal notice. Except that no other documents were marked. For grant of injunction, the appellant has to establish prima facie case, balance of convenience and irreparable loss. Going by the averments in the plaint, Government acquired the lands and deposited Rs.1,39,51,462/- in the name of Venkateswarlu; Rs.42,24,333/- was deposited in the name of 1st defendant; Rs.48,70,834/- was deposited in the name of 8 2nd defendant and of Rs.29,63,129/- was deposited in the name of plaintiff. The contention of 2nd defendant that there was partition, though no document was filed, gains support from the contention of the plaintiff regarding deposit of compensation amount in the respective bank accounts. Apart from that the transactions pleaded by the plaintiff with regard to purchase of item No.1 of plaint A schedule in the name of 2nd defendant and also plaint B schedule property in the name of 3rd defendant are of the year 2018 i.e. item No.1 of A schedule is purchased under agreement of sale dated 19.02.2018 and B schedule property was purchased under agreement of sale dated 20.04.2018. However, father of plaintiff died on 14.12.2018. The contention of appellant that after death of their father, there was an understanding that properties have to be purchased in the name of plaintiff and defendants gains no support, since the agreements of sale are even prior to death of father. Exs.A-1 and A-2 sale deeds stood in the name of respondents 2 and 4 respectively. It is not the case of appellant that father late Venkateswarlu purchased property in the name of respondents 2 and 3 during his lifetime.
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16. Appellant did not file any document to show that entire compensation was transferred to the account of his father and after his demise, 2nd respondent purchased plaint A, B and C schedule properties with the said amount. Except Exs.A-1 and A-2, no other documents are exhibited before the Court. Appellant failed to prove prima facie case for grant of injunction. Regarding proof of existence of Hindu joint family does not lead to the presumption that property held by any member of the family is joint and the burden rests upon any one asserting that any item of property was joint to establish the fact. Moreover, whether the schedule properties are joint family properties or not, is the point to be decided during the course of trial and the plaintiff has to prove that fact. Merely marking Exs.A-1 and A-2 during the course of enquiry will not prove the case of plaintiff, that those properties are joint family properties.
17. The plaint schedule properties are not in the name of plaintiff or his father. It is not the case of appellant that the amount deposited in his bank account was utilized for purchase of land by the 2nd respondent. In fact, the trial 10 Court considered all these aspects and dismissed the application.
18. Plaintiff is seeking injunction against the respondents in anyway meddling with the plaint schedule properties by creating any documents. A perusal of the I.A.No.804 of 2021 would reflect that claim against the 3rd respondent, as not pressed. Having not pressed the claim against 3rd respondent still the appellant is claiming injunction against the 3rd respondent. Since the appellant failed to establish cardinal principles of prima facie case, balance of convenience and irreparable loss, he is not entitled for the relief of injunction. In view of the same, this Court finds that there are no grounds to interfere with the order of the trial Court. Hence, the appeal is liable to be dismissed.
19. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 26th September, 2022 PVD