IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTH DAY OF TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.269 OF 2010 Between: B. Lingoji Rao ..... Appellant AND Smt. Lingu Bai & 11 others ..... Respondents The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.269 OF 2010 JUDGMENT: The Civil Miscellaneous Appeal, under Order XLIII Rule 1 (r) of the Code of Civil Procedure, 1908 (for short ‘CPC’), is directed against the order, dated 30.12.2009, in I.A.No.638 of 2008 in O.S.No.28 of 2008, on the file of the Senior Civil Judge, Narayanapet, Mahabubnagar District, whereunder and whereby, the petition filed by the appellant/petitioner, under Order XXXIX Rules 1 and 2 read with Section 151 CPC, seeking temporary injunction restraining the respondents from alienating, creating any charge or mortgage over the plaint schedule properties, etc., was dismissed. 2. Heard the learned counsel for the appellant. None appeared for the respondents in spite of service and the learned counsel for the 7th respondent is also did not argue the case. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The appellant is the brother of respondents 1 and 2 and the 3rd respondent is the wife of the late elder brother of the appellant by name Vasanth Rao. Respondents 4 to 6 are the children of the 3rd respondent and Late Vasantha Rao. Respondents 7 and 8 are the younger brothers of the appellant. The 8th respondent is the wife of the 7th respondent. The 10th respondent is the wife of the 9th respondent. Respondents 11 and 12 are the strangers and they are not related to the family of the appellant and respondents. The appellant and respondents 1 to 10, being the legal heirs of late B. Narayan Rao, inherited the properties as bequeathed by him. Prior to his death, the said Narayana Rao performed marriage of respondents 1 and 2 by giving their monetary share, and as such respondents 1 and 2 had no share in the house property which is left over by their father. They are living jointly by doing different businesses, acquired the properties out of the joint family funds which are H.Nos.2-13, 7-101, renumbered as 1- 3-30, 1-3-31 and 1-3-31/A, formed in a single block, and H.Nos.1- 205, 1-206 and 1-207 formed in single block, all the properties situated at Makthal village of Makthal Mandal and the joint family acquired plots bearing Nos.1 and 2, formed part in the land bearing Sy.No.81, situated at Makthal Shivar of Makthal Mandal and plots bearing Nos.117 and 118, formed part in the land bearing Sy.No.28/P, Makthal Village Shivar of Makthal Mandal. Out of the above said properties, plot bearing No.1, forms part in the land bearing Sy.No.81, situated at Makthal Village of Makthal Mandal, was acquired by paying installments out of the joint family funds in the name of the 10th respondent and the plot bearing No.2, forms part in the land bearing Sy.No.81, situated at Makthal Village of Makthal Mandal, was acquired in the same Vattem Shekaraiah Plots Scheme, Makthal by paying installments in the name of the 8th respondent. The plot bearing No.117, forms part in the land bearing Sy.No.28/P, situated at Makthal Village of Makthal Mandal, has been acquired in the Shuraksha Plots Scheme, Makthal by paying the amount from the joint family funds in the name of the 7th respondent and the plot bearing No.118, forms part in the land bearing Sy.No.28/P, situated at Makthal Village of Makthal Mandal has been acquired in the Shuraksha Plots Scheme, Makthal by paying the amount from the joint family funds in the name of the 9th respondent and also the house bearing H.No.7-101, renumbered as 1-3-30, 1-3-31, situated at Makthal village of Makthal Mandal was purchased in the name of the appellant, his wife and the 9th respondent jointly through registered Sale Deed. There was a family settlement and to that effect, a formal document was also got executed and according to that document, the above said four plots fell to the share of the appellant and the rest of the properties fell to the share of the rest of the respondents. However, the settlement was not acted upon in between the appellant and respondents as they did not bind by the conditions stipulated in the document. The respondents never came forward to execute the document in order to get name of the appellant mutated in respect of above said properties as stipulated in the settlement inspite of requests. Hence, the said settlement is not binding on the appellant and was not given effect to. The appellant and respondents 3 to 10 are still in joint possession over the suit properties and in order to resolve the disputes in between the appellant and respondents 3 to 10, the appellant made several efforts by conducting panchayaths in the village by the elders, but none of the respondents came forward to get the properties divided as per the terms of the document or in any other manner. The appellant is the innocent person whereas respondents 7 and 8 have got all types of influence. As the days are passing, respondents 3 to 10 have started claiming that they have sold some of the properties to respondents 11 and 12. However, the said properties are still in joint possession of the appellant and respondents 3 to 10. The alienation made by the respondents are not binding on the appellant as he is having a share in the plaint schedule properties. Since the appellant and respondents 3 to 10 were living jointly by enjoying all the plaint schedule properties, jointly acquired the suit properties out of the joint family funds. The appellant filed suit in O.S.No.28 of 2008, on the file of the Senior Civil Judge, Narayanpet seeking for partition of the suit schedule properties and allot 1/4th share of the same to him. Along with the suit, the appellant also filed an application in I.A.No.638 of 2008 for grant of temporary injunction pending disposal of the suit restraining the respondents from alienating the suit schedule properties by way of sale, mortgage creating charge or in any other manner to any third parties. Hence, the petition. 4. Learned counsel for the appellant contended that the suit is filed for partition and if the properties are sold and the third party interest is created, the purpose of filing the suit would be defeated and to avoid multiplicity of proceedings in addition, a temporary injunction may be given restraining the respondents from alienating the suit schedule properties. 5. Specific case of the appellant is that some of the properties were purchased in the individual capacities of respondents/defendants 2 to 10 from out of the nucleus of the joint family properties and that issue has to be decided in the suit itself. The interest of appellant has to be safeguarded till his right is determined. If the relief sought for is granted to appellant, no irreparable injury would be caused to respondents. Balance of convenience is in favour of appellant. If the properties are alienated, there would be a multiplicity of proceedings which can be avoided by giving a direction to the respondents not to alienate the petition schedule properties so that the right of the appellant/petitioner can be determined in the preliminary decree that may be passed in his favour. Therefore, the respondents are restrained from alienating the petition schedule properties or creating the third party interest in the schedule properties till disposal of the suit. 6. The Civil Miscellaneous Appeal is, accordingly, allowed without costs with the above direction. _______________ (K.C. BHANU, J) Date: 7th March, 2011 KL THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No.269 OF 2010 Date: 7th March, 2011 KL