Smt. G. Pentamma vs Buchanamoni Narayana
2021 Latest Caselaw 905 Tel

 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