THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
THE HONOURABLE SRI JUSTICE T. VINOD KUMAR
C.M.A. No.136 of 2021
JUDGMENT: (Per Hon'ble Sri Justice M.S. Ramachandra Rao)
This Appeal is preferred against the order dt.10-02-2021 in
I.A.No.484 of 2020 in O.S.No.744 of 2020 passed by the Principal
Senior Civil Judge, R.R. District at L. B. Nagar, Hyderabad.
2. Appellant herein is plaintiff in the suit.
3. She filed the said suit against 1st respondent, who is her father
and other respondents, who are her step brothers and sisters, contending that she and respondents are joint owners and possessors of the suit schedule properties and they had inherited the same from late Buchanamoni Pochaiah, father of 1st respondent and grand father of appellant and respondent Nos.2 to 5, by way of succession. It is the contention of appellant that after the death of her grand father, she and respondents succeeded to the property in equal shares and became joint owners and possessors of the same and that they are all coparceners in the joint family consisting of respondents and herself.
4. Along with the suit, the appellant filed I.A.No.484 of 2020 under Order 39 Rules 1 and 2 C.P.C. to restrain the respondents from alienating or creating any third party interest in the suit schedule properties, which is an extent of Ac.11.20 gts situated at Sreenagar Village, Maheshwaram Mandal, Ranga Reddy District and a house ::2:: MSR,J & TVK,J C.M.A.No.136 of 2021.
bearing No.7-63 at Saraswathiguda, Lemoor Village, Kandukur Mandal, Ranga Reddy District.
5. In the said application, she contended that respondents are not cooperating for partition of the suit schedule properties and are secretly trying to alienate the same and that she is entitled to 1/6th share in the suit schedule properties.
6. Counter-affidavit was filed in the said application by 1st respondent admitting the relationship between the parties, but contending that the appellant was not a member of the joint family, that her marriage was performed long back and she was living with her husband in a different village. He contended that the appellant was no way concerned with the suit schedule property agricultural lands and that they were his self-acquired properties. He also denied that he inherited the properties from his father. He also claimed that some of the properties were gifted by his cousin brother to him. He claimed that the house property mentioned in the plaint was acquired by him through purchase of plots from the original owners and he alone paid the consideration for it.
7. In the Court below, the appellant marked Exs.P-1 to P-7 and the respondents filed Exs.R-1 to R-8.
8. By order dt.10-02-2021, the Court below dismissed I.A.No.484 of 2020.
::3:: MSR,J & TVK,J
C.M.A.No.136 of 2021.
9. The Court below held that the appellant was seeking a share in the suit schedule property during the lifetime of her father and whatever property the 1st respondent got from his father was not available for partition by appellant. It applied Section 8 of the Hindu Succession Act, 1956 and concluded that the appellant does not have prima facie case or balance of convenience.
10. Assailing the same, this Appeal is filed.
11. Heard learned counsel for appellant, who contended that the findings of the Court below are contrary to law and evidence on record and it ought to have granted temporary injunction pending suit restraining the respondents from alienating the suit schedule property.
12. There is a dispute in the instant case as to whether the suit schedule property is the property of the grand father Pochaiah of appellant or the self-acquired property of 1st respondent. There is also a question as to whether the suit schedule property is the self acquired property of grand father Pochaiah of appellant or joint family property. Though pahanis have been filed by appellant showing the name of her grand father Pochaiah in the Revenue records, the Revenue records do not support the plea of appellant prima facie that it is the ancestral property. In fact there is no specific pleading even in the plaint that the suit schedule property is the ancestral property of late Pochaiah, who was succeeded by 1st respondent.
13. During the course of trial, the Court below would have to consider whether the suit schedule property is the ancestral property ::4:: MSR,J & TVK,J C.M.A.No.136 of 2021.
or self-acquired property of late Pochaiah or the 1st respondent after framing appropriate issues and after considering the evidence adduced by the parties. At this point of time, it cannot be said that the appellant had made out a prima facie case or the balance of convenience is in her favour having regard to the pleas taken by 1st respondent in I.A.No.484 of 2020.
14. Therefore, we do not deem it appropriate to interfere with the impugned order dt.10-02-2021 passed in I.A.No.484 of 2020 in O.S.No.744 of 2020 by the Principal Senior Civil Judge, R.R. District at L. B. Nagar, Hyderabad.
15. Accordingly, the Civil Miscellaneous Appeal is dismissed.
16. It is further observed that whatever alienations made by respondents shall abide by the result of the suit. No costs.
17. As a sequel, miscellaneous petitions pending, if any, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO __________________________ JUSTICE T.VINOD KUMAR Date: 22.03.2021 Vsv