THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.Nos.712 of 2011 and 820 of 2010 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeals are directed against the common Order passed in I.A.Nos.2122 of 2009 and 2123 of 2009 in O.S.No.332 of 2009 by the IV Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar. The appellants herein are the petitioners in the above said petitions. The I.A.No.2122 of 2009 was filed under Order 39 Rules 1 and 2 read with Section 151 CPC to restrain the respondents not to alienate the suit schedule property to any third party till the disposal of the suit. The I.A.No.2123 of 2009 was filed under Order 39 Rules 1 and 2 read with Section 151 CPC to restrain the respondents not to change the physical features of the suit schedule property till the disposal of the suit. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioners, the petitioners and respondents are joint owners and possessors of agricultural lands in Survey No.129 to an extent of Ac.4.16 guntas and Survey No.130 to an extent of Ac.6.11 guntas, totaling Ac.10.27 guntas, situated at Kismatpur Village, Rajendranagar Mandal, Ranga Reddy District. The suit schedule property originally belongs to late Shaik Fareed, grand father of petitioners herein. The said Shaik Fareed had three sons, namely Shaik Mahmood, Shaik Yaseen and Shaik Hussain and one daughter, Zaibunnissa Begum. The said Shaik Fareed died in the year 1978, Shaik Hussain died in the year 1975 i.e. prior to the death of late Shiak Fareed. Shaik Mahmood died on 19.05.2005 and Shaik Yaseen died on 18.11.2007. After the death of Shaik Fareed, mutation was effected in the names of Shaik Mahmood and Shaik Yaseen in the year 1979-80. During the life time of Shaik Fareed, Shaik Mahmood and Shaik Yaseen and his daughter Zaibunnissa Begum were alive and they are the legal heirs of Shaik Fareed. Shaik Hussain had no right in respect of property because he died prior to the death of Shaik Fareed. Shaik Mahmood is entitled to 2/5th share, Shaik Yaseen is entitled to 2/5th share and Zaibunnissa Begum is entitled to 1/5th Share in the suit schedule property. During the life time of Shaik Mahmood, Shiak Yaseen and Zaibunnissa Begum have executed a GPA in favour of Mohd.Osman Khan under registered GPA Document No.640 of 1987 dated 25.05.1987 to an extent of Ac.10.00 cents. The said Mohd.Osman Khan sold an extent of 1 acre and 6 ½ guntas under the document No.4605 of 1993 dated 29.05.1993 and 0.22 ¾ guntas sold under document No.4606 of 1993 dated 29.05.1993. He had also sold 4743 square yards by way of plots to different people. The said Mohd.Osman Khan died in the year 2005. The total extent sold by Mohd. Osman Khan is Ac.1.29 ¼ guntas of land and 4743 square yards by way of plots. Even if 30% of the area is left for internal roads there is open land of 20,757.75 square yards and 27 guntas in respect of Survey Nos.129 and 130. The said left over land of 20,757.75 square yards and 27 guntas, is the suit schedule property. The legal heirs of Shaik Mahmood filed an application before the Deputy Collector and Tahasildar, Rajendranagar mandal on 05.02.2007 for mutation to an extent of Ac.4.16 guntas in Survey No.129 and to an extent of Ac.6.11 guntas in Survey No.130 of Kismatpur village, Rajendranagar Mandal. They came to know that Shaik Mahmood, Shaik Yaseen, Zaibunnisa Begum and three others executed GPA registered document No.640 of 1987 dated 25.05.1987 and the GPA holder converted the land into non- agricultural land and sold some of the land and mutation was rejected. The petitioners came to know that the respondents are occupants and tried to sell the lands unauthorizedly. Therefore, they have filed the suit for partition and interim injunctions restraining them from alienating the property and to restrain them not to change the physical features of the suit schedule property. Respondent Nos.4, 5 and 7 have filed counter and others adopted the same. They admitted the ownership of Shaik Fareed in respect of Ac.10.27 guntas covered by Survey Nos.129 and 130. According to them, they was oral family settlement in the year 1971 in respect of Ac.10.27 guntas in between late Shaik Fareed, three sons and daughter. As per the settlement and partition Shaik Fareed relinquished his entire right in the property. Three sons are entitled to 40:40:10 and daughter would get 10%. Thereafter a lay out is made in 1971 in respect of entire land of Ac.10. 27 guntas. 40% of the land was left for internal roads. One of the sons of Shaik Fareed namely Shaik Hussain died. Thereafter Shaik Mahmood, Yaseen and daughter Zaibunnisa Begum and legal heirs of Shaik Hussain have decided to sell off the entire lands by keeping 27 guntas of land. Shaik Mahmood constructed house in open land of 400 square yards. Shaik Yaseen constructed house in open land of 230 square yards. Shaik Hussain constructed house in open land of 200 square yards and Zaibunnissa Begum also constructed house in open land of 300 square yards abutting to 50 feet wide road. One Gulam Rasool was also in possession to an extent of 400 square yards and he constructed his house and residing since more than 30 years and also one Naseer Ahmed also in possession of 500 square yards, constructed his house and mulgies. The GPA is to an extent of Ac.10.00 in favour of Mohd. Osman Khan and he sold away the entire land to different persons. The purchasers obtained electricity connection, water connection etc., and there is no land remained for partition on the spot. The respondents are not in possession of the suit schedule property except their residential houses, as such the question of changing the nature of the suit schedule property does not arise and the property was already sold, the question of further selling away any of the land does not arise and they prayed for dismissal of the petition. On behalf of the petitioners, Exs.P.1 to P.5 were marked. No documents were marked on behalf of the respondents. The lower Court by taking into consideration of the said documentary evidence has dismissed both the applications holding that no prima-facie case and balance convenience are in favour of the petitioners and the disputed property is not identifiable. Aggrieved by the said common Order, the present appeals are filed. Now, the point that arises for consideration in these two appeals is: Whether the petitioners are entitled for the ad-interim injunction as prayed for? P O I N T: The appellants’ counsel has pleaded that Mohd. Osman Khan as GPA has only sold Ac.1.29 ¼ guntas and 4,743 square yards by way of plots and even if the 30% of the area is left for internal roads, there is still open land of 20,757.75 square yards and 27 guntas in respect of Survey Nos.129 and 130, which is the suit schedule property. Since the petitioners and respondents are the shareholders, they are entitled for partition of the suit schedule property and as the respondents are trying to alienate the said property and trying to make constructions over the said property, they are entitled for the injunction as prayed for. The respondents’ counsel on the other hand, has pleaded that the partition of the suit schedule property was already taken in the year 1971 itself during the lifetime of their grand father Shaik Fareed, between himself and his three sons and daughter and residential houses were constructed by the parties and the remaining Ac.10.00 of land was handed over to Mohd.Osman Khan under G.P.A. and he has made the said land into plots and sold away the entire land and there is no left over land as alleged by the petitioners, as such the lower Court has rightly dismissed the petition. There is no dispute that the suit schedule property originally belongs to Shaik Fareed and he had three sons viz., Shaik Mahmood, Shaik Yaseen and Shaik Hussain and one daughter Zaibunnissa Begum. According to the petitioners, Shaik Hussain died in the year 1975 i.e. prior to the death of Shaik Fareed, as such the living heirs of Shaik Fareed i.e. Shaik Mahmood, Shaik Yaseen and daughter Zaibunnissa Begum are only entitled for the said property. Shaik Mahmood is entitled to 2/5 share, Shaik Yaseen is entitled for 2/5th share and Zaibunnissa Begum is entitled to 1/5th share in the suit schedule property. According to the respondents, during the lifetime of Shaik Fareed a family partition was entered into in the year 1971 in respect of Ac.10.27 guntas, as per the settlement and partition Shaik Fareed relinquished his entire right over the property. Three sons are partitioned the property into 40:40:10 and daughter get 10% and the said land was laid out in the year 1971 and Shaik Mahmood, Yaseen and daughter Zaibunnissa Begum are the legal heirs of the Shaik Hussain have decided to sell away the entire land by keeping 27 guntas of land. Accordingly, they executed GPA to Mohd.Osman Khan in respect of Ac.10.00 of land and said Mohd.Osman Khan has sold away the entire land to different persons and there is no land available for partition. The lower Court has observed that since the land claimed by both the parties have laid into plots, the petitioners ought to have filed the layout to establish the remaining extent of land available after GPA selling certain plots. Further observed that the Phani filed by the petitioners shows only plots, as such the entire land was laid out into plots and there may not any open land to extent of 20,757.75 square yards and also 27 guntas. The Petitioners have filed certified copies of Pahanis from 1958-59 to 2004-05 and certified copy of Adangal, Family members certificate issued by Deputy Collector and Mandal Revenue Officer, Certified copy of GPA executed in favour of late Mr.Mohd Osman Khan and proceeds of the Deputy Collector and Tahasildar, Rajendra Nagar Mandal, Ranga Reddy District. As admitted by both parties, GPA was executed in favour of Mohd.Osman Khan and it is also an admitted fact that the said Mohd.Osman Khan has made the said land into plots and sold the plots. According to the petitioners, after selling away the plots by Mohd.Osman Khan, there remains an extent of 20,757.75 square yards and 27 guntas, and the same is liable to be partitioned among them. Admittedly, the said Mohd Osman Khan died in the year 2005. When the land was already laid out by the said GPA; as rightly observed by the lower Court that the petitioners ought to have filed the layout plan to show the entire extent of land laid into plots and left over plots after the sales made by the GPA. The certified copy of the pahani filed by the petitioners for the years 2003-2004, 2005-2006, 2006-2007 and 2007-2008 shows that the suit schedule land was made into plots. Admittedly, the entire land belongs to Shaik Fareed. According to the respondents, in 27 guntas of land, Shaik Mahmood, father of the petitioners, Shaik Hussain, father of respondent Nos.2 to 5 and 1st respondent have constructed their own houses and the remaining Ac.10.00 of land was already sold away by Mohd.Osman Khan in favour of 3rd parties. As the petitioners are claiming an extent of 20,757.75 square yards left over after selling away the plots by Mohd.Osman Khan and 27 guntas in Survey Nos.129 and 130, they have to produce the necessary documents to establish the existence of the said land more particularly when the respondents are denying about the existence of the same. Therefore, the petitioners have failed to establish the existence of the suit schedule land. In “NAHAR SINGH V. HARNAK SINGH AND OTHERS[1]” the Apex Court held that in a suit for specific performance, unless the property in question is identifiable, no decree can be granted in respect of the same. In ‘SHREEPAT V. RANJENDRA PRASAD AND OTHERS[2]” the Apex Court held in a suit for declaration of title, the relief cannot be granted when there is a dispute with regard to identity of the property. Therefore, unless the property is identifiable, the petitioners are not entitled for the reliefs as prayed for. Even if the disputed land is in existence, since both the parties are co-owners, one co- owner is not entitled for injunction against the other co-owner. Thus, the petitioners have failed to establish the prima-facie case and balance of convenience in their favour. Hence, they are not entitled for the injunctions as prayed for. In the result, the Civil Miscellaneous Appeal Nos.712 of 2011 and 820 of 2010 are dismissed, but in the circumstances without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:16-09 -2011 Ksp [1] 1996 (8) Supreme 17 [2] 2000 (6) Supreme 389