The vs "Order 39
2023 Latest Caselaw 3194 AP

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
                                  AND
      THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                C.M.A.Nos.70 of 2022 and 71 of 2022


COMMON JUDGMENT: (Per Hon'ble Sri Justice V.Gopala Krishna Rao)


       The appellants in CMA Nos.70 of 2022 and 71 of 2022

are the respondents 5 and 6 in I.A.No.164 of 2017 in

O.S.No.16 of 2017 and petitioners in I.A.No.158 of 2020 in

I.A.No.164 of 2017 in O.S.No.16 of 2017 on the file of V

Additional District and Sessions Judge, East Godavari

District, Rajamahendravaram. Respondent No.1 in CMA

Nos.70 of 2022 and 71 of 2022 is the petitioner in I.A.No.164

of 2017 in O.S.No.16 of 2017 and respondent No.1 in

I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of

2017. Respondent Nos.2 to 6 in CMA Nos.70 of 2022 and

71 of 2022 are the respondents 1 to 4 and 7 in I.A.No.164 of

2017 in O.S.No.16 of 2017 and respondent Nos.2 to 6 in

I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of

2017 on the file of V Additional District and Sessions Judge,

East Godavari District, Rajamahendravaram.

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

As both the appeals are filed against the common

order passed in I.A.No.164 of 2017 in O.S.No.16 of 2017 and

I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16 of

2017 on the file of V Additional District and Sessions Judge,

East Godavari District, Rajamahendravaram, both the

appeals were heard together and they are being disposed of

by this common judgment.

2. Both the parties in the appeals will be referred to as

they are arrayed in I.A.No.164 of 2017 in O.S.No.16 of 2017.

3. The petitioner/ plaintiff/ respondent No.1 filed the suit

for preliminary decree for partition of Plaint Schedule

Properties into three equal shares and for allotment of one

such share to the petitioner and for passing of final decree in

terms of preliminary decree and put the petitioner in

possession of her share.

4. The case of respondents 5 and 6 i.e., appellants in

these appeals is that item Nos.19 to 21 of the Plaint

Schedule Properties which are covered by registered sale

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

deeds dated 06.08.2011 and 23.04.2011 under documents

Nos.7300 of 2011 and 3651 of 2011 respectively are

purchased by them in the year 2011 itself i.e., five years

before filing the suit. They further contended that they are in

possession and enjoyment of the item Nos.19 to 21 of Plaint

Schedule Properties since the date of its purchase and the

petitioner was never in joint and constructive possession of

these items of the properties at any time to her knowledge

and the petitioner in collusion with other respondents filed

the said suit for wrongful gain.

5. I.A.No.164 of 2017 in O.S.No.16 of 2017 is filed by the

petitioner/ plaintiff to grant Temporary Injunction restraining

the respondents and their men from alienating the Petition

Schedule Properties.

6. I.A.No.158 of 2020 in I.A.No.164 of 2017 in O.S.No.16

of 2017 is filed by the respondents 5 and 6/ appellants to set

aside the exparte order of Injunction granted by the trial

Court in I.A.No.164 of 2017 in O.S.No.16 of 2017 dated

25.01.2017.

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

7. During the course of enquiry before the trial Court, on

behalf of petitioner Ex.A1 to Ex.A121 were marked, on behalf

of respondents Ex.B1 to Ex.B53 were marked.

8. Learned Trial Judge upon considering the material on

record as well as the contentions of the both the parties,

accepted the version of the petitioner/ plaintiff and granted

Temporary Injunction against the respondents from

alienating the Plaint Schedule Property till the disposal of the

main suit and I.A.No.158 of 2020 filed by the respondents 5

and 6 /appellants herein in I.A.No.164 of 2017 is dismissed

by the trial Court.

9. The learned counsel for the respondents 5 and 6/

appellants strenuously contended assailing the order of the

trial Court that the order is perverse and against the material

on record. He further contended that the petitioner/plaintiff

had deliberately not arrayed Smt Cherukuri Lalitha

Chengalva i.e., daughter-in-law of the petitioner, knowing

fully well that item No.20 of Suit Schedule Properties was

alienated by the respondent No.2 and Smt Cherukuri Lalitha

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Chengalva and further pleaded that the suit for partition is

bad for non-joinder of necessary parties. Another ground

urged by the respondents 5 and 6/ appellants counsel is that

the suit for partial partition is not permissible, since the

petitioner/ plaintiff has not included all the properties of the

Joint Hindu Family. The third ground urged by the

respondents 5 and 6 is that the suit for partition of item

Nos.19 to 21 of Suit Schedule Properties is time barred,

since the petitioner was aware that the Suit Schedule

Properties were purchased by the appellants herein in the

year 2011 itself, while the suit for partition is filed in the year

2017.

10. The learned counsel for petitioner/ plaintiff/ respondent

No.1 supported the order under appeal contending with

reference to the material on record the trial Court rightly

granted the temporary Injunction until the disposal of the

main suit and thus requested not to interfere with the

common order passed by the trial Court under the appeals.

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

11. Now the points for determination are:

i) Whether the petitioner/plaintiff/ respondent No.1 has made out a prima-facie case and whether balance of convenience is in her favour in respect of item Nos.19 to 21 of Suit Schedule Properties?

ii) Whether the petitioner would suffer irreparable loss and injury in the event of refusal to grant Temporary Injunction in her favour and against R5 and R6?

iii) Whether the order of learned Trial Judge is justified and appropriate?

12. POINT Nos.1 to 3: Before adverting to the facts in

issue and the material on record, it is desirable to consider

the legal position relating to grant of Temporary Injunction

particularly, in the context of the present case, as to

application of Order 39 Rule 1(c) of Civil Procedure Code. In

the case of Dalpat Kumar and another Vs. Prahlad Singh

and others1, the Hon'ble Supreme Court of India held that

"Order 39, Rule 1(c) provides that Temporary Injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or

AIR 1993 SC 276

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may grant a Temporary Injunction to restrain such act or make such other order for the purpose of staying and preventing.......... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the disposal of the suit or until further orders".

The facts in the present case on hand is that the

petitioner/ plaintiff/ respondent No.1 filed a suit for partition of

the Plaint Schedule Properties with a plea that the entire

Plaint Schedule Properties are the ancestral properties and

the respondents/defendants are not cooperating for partition

and they are trying to alienate the entire Plaint Schedule

Properties to the third parties and that she is seeking a relief

of Temporary Injunction restraining the respondents from

alienating the entire Plaint Schedule Properties i.e., item

Nos.1 to 49, till the disposal of the suit. The respondents 5

and 6/ defendants 5 and 6/ appellants filed both these

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

appeals. The other respondents/ defendants have not filed

any appeals.

13. The subject matter of the Appeal Schedule Property is

item Nos.19 to 21 of the Plaint Schedule Properties. The

contention of the respondents 5 and 6/appellants is that they

are bonafide purchasers of item Nos.19 to 21 of the Plaint

Schedule Properties as per registered sale deed dated

06.08.2011 and 23.04.2011 for a valuable sale consideration

and the same was paid through RTGS and that item Nos.19

to 21 of Plaint Schedule Properties are self-acquired

properties of their vendors and the they are in a possession

and enjoyment of item Nos.19 to 21 of Plaint Schedule

Properties and their names were also mutated in the

Municipal record and they are paying taxes on their name.

14. The contention of the petitioner/ plaintiff/ respondent

No.1 is that item No.19 of Plaint Schedule Properties is in an

extent of 9.75 guntas situated in Kondapur and Kothaguda

villages in R.S.No.15, 17, 21, 22, 24, 25, 26, 27, 28, 29, 30,

31, 32 and 33 and was purchased in the name of first

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

defendant under registered sale deed dated 03.05.1997,

item No.20 of the Plaint Schedule Properties is in an extent

of 484 square yards in Kondapur and Kothaguda villages of

Rangareddy District in R.S.No.15, 17, 21, 22, 24, 25, 26, 27,

28, 29, 30, 31, 32 and 33 and was purchased in the names

of first defendant and another under registered sale deed

dated 10.02.1997 and item No.21 of the Plaint Schedule

Properties is an extent of 968 square yards in Kondapur and

Kothaguda villages of Rangareddy District in R.S.No.15, 17,

21, 22, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 and was

purchased in the names of first defendant and third

defendant under registered sale deed dated 10.02.1997.

15. The another contention of the petitioner is that the

defendant No.2 is the son of defendant No.1, defendant No.3

is the son of defendant No.2, defendant No.7 is the wife of

defendant No.1, petitioner/plaintiff is the daughter of

defendant No.1. The petitioner further pleaded that the

defendant Nos.1 and 2 constituted a Hindu Joint Family,

defendant No.3 is the son of defendant No.2, and defendant

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Nos.4 to 6 are the alienees of item Nos.14, 19, 20 and 21 of

Plaint Schedule Properties and there was no partition

between the family members of the petitioner/ plaintiff either

orally or in written manner and originally the ancestors of the

petitioner are agriculturists and they owned the properties

even by the year 1934 and they owned agricultural lands at

Konthamuru village of Kolamuru Panchayat and the great

grandfather of the petitioner was one Cherukuru Veeranna

and he inherited the agricultural lands at Konthamuru village

of Kolamuru gram panchayat from his ancestors, after his

death, his two sons by name Cherukuri Subbarao i.e.,

paternal grand father of the petitioner/plaintiff and his brother

Cherukuri Bapanna got Ac.5.52 cents in R.S.No.781 and

Ac.3.05 cents in R.S.No.782/1 of Konthamuru Village of

Kolamuru gram panchayat and the said property was sold by

Cherukuri Subbarao and his brother Bapanna and that the

family of the petitioner/plaintiff/respondent No.1 and their

ancestors are having agricultural lands.

16. The petitioner/plaintiff/ respondent No.1 further pleaded

that the father of defendant No.1 died intestate on

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

14.10.1996. In order to prove the same, the petitioner relied

on Ex.A22. She further pleaded that the mother of defendant

No.1 died intestate on 12.08.2001, In order to prove the

same, the petitioner relied on Ex.A23.

17. The contention of the respondents 5 and 6/ appellants

is that they purchased the item Nos.19 to 21 of the Plaint

Schedule Properties under a registered sale deeds dated

06.08.2011 and 23.04.2011. The contention of the

petitioner/ plaintiff/ respondent No.1 is that the item Nos.19

to 21 of the Plaint Schedule Properties are the ancestral

properties and the same are not self-acquired properties of

the defendant No.1 and from out of the ancestral nucleus,

the defendant No.1 purchased the said properties and in

order to prove the same, the petitioner relied on Ex.43 to

Ex.48.

18. By the date of above sale deeds in favour of

defendants 1 to 3, the mother of defendant No.1 is alive, she

died intestate on 12.08.2001. The crucial aspect to be

decided is whether defendants 1 to 3 purchased the item

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Nos.19 to 21 of Plaint Schedule Properties with their own

money or from out of the ancestral nucleus. It has to be

decided in the main suit after completion of trial in the main

suit in final adjudication but not in the Interlocutory

Application. On the basis of self-statement of vendor of

defendants 5 and 6, it is not safe to came to conclusion that

the subject matter of item Nos.19 to 21 of Suit Schedule

Properties are self-acquired properties of defendant No.1.

The trial Court also held in its order that the said issue has to

be decided after full-fledged trial in the main suit. As noticed

supra, the defendant No.2 is the son of defendant No.1,

defendant No.3 is the son of defendant No.2,

petitioner/plaintiff is the daughter of defendant No.1.

19. One of the grounds urged by the Defendants 5 and 6/

appellants are that the petitioner/ plaintiff/ respondent No.1

deliberately not shown her daughter-in-law as a party to the

suit and defendant No.2 and his wife sold item No.20 of

Plaint Schedule Property. Whether the suit is bad for mis-

joinder of parties or non-joinder of necessary parties has to

be decided after framing the issues by the trial Court and

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

after completion of elaborate trial in the main suit but not in

Order 39, Rule 1 CPC proceedings.

20. Another ground urged by the respondents 5 and 6/

appellants is that the suit is barred by limitation, since they

purchased the item Nos.19 to 21 of the Suit Schedule

Properties in the year 2011, the petitioner/ plaintiff/

respondentNo.1 filed the present suit for partition is in the

year 2017. As noticed supra, the relief claimed by the

petitioner/ plaintiff in the present suit is for partition of the

Plaint Schedule Properties.

21. The Hon'ble Supreme Court of India held in

Urvashiben and another Vs. Krishnakanth Manuprasad

Trivedi2 case "It is well settled that, so far as the issue of

limitation is concerned, it is mixed question of fact and law, it

is true that limitation can be the ground for rejection of the

plaint in exercise of the power under Order VII Rule 11(d) of

Civil Procedure Code". The Hon'ble Supreme Court of India

further held in the said decision that "the issue as to when

(2019) 1 ALT 1 SC

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

the plaintiff has noticed refusal, is an issue which can be

adjudicated after trial even assuming that there is an

inordinate delay and laches on the part of the plaintiff, the

same cannot be ground for rejection of the plaint"

It was held by Hon'ble Supreme Court of India in

Narne Rama Murthy Vs., Ravula Somasundaram and

others3 case "when limitation is the pure question of law and

from the pleadings itself it becomes apparent that a suit is

barred by limitation, then, of course it is the duty of the Court

to decide limitation at the outset even in the absence of plea.

However, in cases where the question of limitation is a mixed

question of fact and law and suit does not appear to be

barred by limitation on the fact of it, then the facts are

necessary to prove the limitation must be pleaded, an issue

raised and then proved .......". Here the subject matter of

the suit is for partition of the Plaint Schedule Properties. The

appeals are filed against the order passed under Order 39

Rule 1 of Civil Procedure Code by the trial Court, the scope

of this appeal is limited. Application as to article 59 of

(2005) 6 SCC 614

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Limitation Act or article 110 of Limitation Act is desirable to

be considered in the given facts and circumstances of the

present case, after parties have entered upon the trial and

when the trial Court takes a final decision in the matter.

22. The counsel for respondents 5 and 6/ appellants relied

on the decisions in B.R.Patil Vs. Tulsa Y.Sawkar and

others4, Jupudi Venkata Vijayabhaskar Vs. Jupudi

Keshava Rao5, Sri Narayan Bal and others Vs. Sridhar

Sutar and others6, Kehar Singh (died) through L.Rs. Vs.

Nachittar Kour7 and D.S.Lakshmaiah and another Vs.

L.Bala Subrahmanyam8. The facts in the cited decisions

shows that after disposal of the main suit, the appeals were

filed. Here the subject matter of the appeal is Temporary

Injunction order passed by the trial Court during the

pendency of the main suit. Therefore, the facts and

circumstances in the cited decisions are not applicable to the

instant case. The learned counsel for appellants further

2022 SCC online SC 240

AIR 1994 (AP) 134

(1996) 8 SCC 54

(2018) 14 SCC 445

(2003) 10 SCC 310

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

relied on a decision in Kishore Samrite Vs. State of U.P9.

The facts in the cited decision relates to the Habeas Corpus

writ petition. The learned counsel for appellants further relied

on a decision in Kenchegowda Vs. Siddegowda10. The

facts in the said decision relates to the suit for partial

partition. The learned counsel for appellants further relied

on a decision in Madan Lal Vs. Controller of Estate Duty,

Delhi and Rajasthan11. The subject matter of the decision

relied on by the learned counsel for the appellants is

reference by the Central Board of Revenue under Section 64

(1) of Estate Duty Act 1953. The learned counsel for

appellants further relied on a decision in State of Orissa Vs.

Dhaniram Luhar12. In the said decision, it was held that:

"The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High

(2013) 2 SCC 398

(1994) 4 SCC 294

1969 (74) ITR 84

(2004) 5 SCC 568

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial".

The facts and circumstances in the cited decision are

different to the instant case. The learned counsel for the

respondents 5 and 6/ appellants further relied on a decision

in P.Ravichandran Vs. State of Tamil Nadu13. The facts in

the cited decision relates to Writ of Mandamus filed under

article 226 of Constitution of India.

23. As stated supra, the contention of the respondents 5

and 6/ appellants is that they purchased the item Nos.19 to

21 of the Plaint Schedule Properties under registered sale

deeds in the year 2011 and the said properties are self-

acquired properties of their vendors. The contention of the

petitioner/ plaintiff/ respondent No.1 is that the defendants 1

to 3 purchased the item Nos.19 to 21 of Plaint Schedule

(2001) SCC Online Mad 750

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Properties from out of the ancestral nucleus and the

defendant No.2 is the son of defendant No.1 and defendant

No.3 is the son of defendant No.2 and the plaintiff is the

daughter of defendant No.1. The crucial aspect to be

decided is whether defendants 1 to 3 purchased the item

Nos.19 to 21 of Plaint Schedule Properties with their own

money or from out of the ancestral nucleus. It has to be

decided in the main suit after completion of trial in the suit in

final adjudication, but not in Interlocutory Application. On the

basis of self-statement of vendors of defendants 5 and 6, it is

not safe to come to conclusion that the subject matter of item

Nos.19 to 21 of Suit Schedule Properties are self-acquired

property of defendant No.1. The trial Court rightly came to

conclusion that it has to be decided after full fledged trial in

the main suit only.

24. The defendants 5 and 6/ appellants would contend that

there is no progress in the trial, the suit is filed about 6 years

ago i.e., in the year 2017 and the trial is not yet commenced

by the trial Court, therefore, if Temporary Injunction passed

by the trial Court is not vacated, their rights will be defeated.

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

The order passed by the trial Court pertains to restraining the

respondents from alienating the Plaint Schedule Properties

until the disposal of the main suit. The contention of the

respondents 5 and 6 i.e., appellants herein is that they are in

possession of item Nos.19 to 21 of the Plaint Schedule

Properties. By virtue of the order passed by the trial Court,

which is now under challenge, the rights of the parties as

well as possession of the parties were not yet affected and

the respondents 5 and 6/ appellants are in a possession of

subject matter of the item Nos.19 to 21 of Suit Schedule

Properties. Therefore, we are of the considered view that it

is proper, just and necessary to give direction to the trial

Court to dispose of the main suit within six months from the

date of this common judgment. In view of the foregoing

discussion, the common order passed by the trial Court is

perfectly sustainable under law and it warrants no

interference in these appeals.

25. Resultantly, both the appeals are dismissed. The trial

Court is directed to dispose of the main suit i.e., O.S.No.16

of 2017 on the file of V Additional District and Sessions

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

Judge, East Godavari District, Rajamahendravaram, within

six months from the date of this common judgment and

submit the compliance report to this Court.

Registry is hereby instructed to send the copy of this

judgment to the trial Court forthwith. No order as to costs in

both the appeals.

As a sequel, miscellaneous petitions, if any, pending in

the appeals shall stand closed.

________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY

_______________________________ JUSTICE V.GOPALA KRISHNA RAO 16th June, 2023 sj

CMR, J & VGKR, J CMA Nos.70 and 71 of 2022

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY AND THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

C.M.A.Nos.70 and 71 of 2022

16th June, 2023 sj