THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 394 of 2009 Dated: 11.08.2009 Between Valdas Srinivas. .. Appellant (Petitioner-Plaintiff) And Valdas Pullaiah and others. .. Respondents (Respondents-Defendants) THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 394 of 2009 Judgment: (per Hon’ble Sri Justice A. Gopal Reddy) This appeal is filed by the plaintiff against the orders of the II Additional District Judge, Ranga Reddy District, passed in I.A. No. 10 of 2007 in O.S. No. 962 of 2006, dated 21.01.2009, whereby the petition filed under Order 39 Rules 1 and 2 CPC seeking temporary injunction restraining the respondents/defendants and their men from alienating the suit schedule property to third parties pending disposal of the suit has been dismissed dissolving the ex parte injunction granted in December 2006. This Court, by order dated 20.04.2009 in C.M.A.M.P. No.719 of 2009, granted interim injunction restraining the respondents from alienating or encumbering the suit schedule property. In fact, the injunction order is in force from December 2006 till this day, except for a brief period of three months i.e., from 21.01.2009 to 20.04.2009. When the vacate stay petition filed by the second respondent is taken up for hearing, both the advocates argued the main appeal, since the argument in the vacate stay petition and appeal are one and the same. We, accordingly, heard the appeal itself on merits. It is not in dispute that the appellant/plaintiff, who is the son of defendant No.1, filed the above suit for partition and separate possession of the suit schedule properties in Survey Nos.62/A and 76/A, totally admeasuring Ac.24-07 gts., situated at Toopra Khurd village, Maheshwaram Mandal, Ranga Reddy District. One V. Ramaiah, who was having five sons namely Jagan Mohan and defendants 1 to 4, was the Kartha of the joint family. Plaintiff is the son of defendant No.1. Jagan Mohan died and defendants 5 and 6 are the sons of Jagan Mohan. It is alleged that V. Ramaiah had acquired agricultural lands in different survey numbers. The said V. Ramaiah died on 29.12.1990 leaving behind his heirs and during his life time, V. Ramaiah had acquired the suit schedule property i.e., to an extent of Ac.10-16 gts., in Survey No.62-A and Ac.13-31 gts., in Survey No.76-A. After the death of V. Ramaiah, all the five sons of V. Ramaiah got 1/5th share each in the suit schedule property and the plaintiff is entitled to half of 1/5th share of his father defendant No.1 and that defendant No.1, who is not safeguarding the plaintiff’s interest, appeared before the Joint Collector in Case No.D5/2517/04, wherein the Joint Collector passed an order against defendants 2 to 6 under ROR proceedings, and defendant No.1 represented before the Joint Collector that he would work out his remedy before the Civil Court and got the proceedings, initiated by him, dismissed on 27.10.2005. The above proceedings will clinchingly establish that defendant No.1 colluded with defendants 2 to 6 with a view to deprive the rights of the plaintiff and the partition if any among the defendants is not a partition in the eye of law and it is created for the purpose of depriving the rights of the plaintiff over the suit schedule property and the same is not binding upon him. Pending the said suit, above I.A. No.10 of 2007, under Order 39 Rules 1 and 2 CPC, for grant of temporary injunction restraining the respondents from alienating the suit schedule property to third parties, and I.A. No. 410 of 2008, under Order 40 Rule 1 read with Section 151 CPC, for appointment of an Advocate/Receiver to conduct the auction of palm trees existing in the suit schedule property and to deposit the profits into Court, are filed. Except defendant No.2, all other defendants remained ex parte in I.A. No. 10 of 2007. Defendant No.2 filed counter admitting that V. Ramaiah died on 29.12.1990 leaving behind the parties to the suit as his legal heirs and stating that said Ramaiah was owned and possessed the suit schedule property apart from other lands. He also admitted that defendant No.1 filed O.S. No. 431 of 1994 on the file of the I Additional Senior Civil Judge, Rangareddy District and the same was dismissed for default on 02.09.1997, but denied that defendant No.1 got the said suit dismissed to help his brothers. It is further stated that during the lifetime of Ramaiah, all the properties, including the suit schedule properties, were divided into five equal shares among his sons under a family settlement deed dated 23.05.1987 marked as Ex.B11 and accordingly they were in possession and enjoyment of their respective allotted shares and therefore the petition is not maintainable. Though the lower Court initially granted ex parte injunction, but subsequently vacated the same by impugned order dated 21.01.2009 holding that in the prayer portion the plaintiff sought for a preliminary decree for partition of the joint family property into five equal shares and allot half share out of 1/5th share of defendant No.1 out of total property and he never prayed the Court to allot any portion of the share in his favour and in the absence of any specific relief for allotment of any portion of share in favour of the plaintiff the suit is not maintainable. Further it was held that the earlier partition among the sons of V. Ramaiah under Exs.B1 to B22, particularly Ex.B11 the Photostat copy of the partition deed, reveals that on 12.06.1987 V. Ramaiah and his five sons agreed to partition and divided their properties in the presence of mediators, who also signed as attestors in the document and the revenue records filed by the respondents/defendants shows that the parties are enjoying their respective shares from the date of partition under Ex.B11. Exs.B1 and B2 are Photostat copies of Ryot passbook and title deed issued by the revenue authorities in the name of respondent No.2 in respect of land admeasuring Ac.2-03 gts., in Sy.No.62/A and Ac.2-31 gts., in Sy.No.76/A. Exs.B3 to B10 are the certified copies of No.3 adangal extracts, which go to show that the sons of Ramaiah i.e., respondent Nos.1 to 4 and father of respondent Nos.5 and 6 are in possession and enjoyment of the lands, including the suit schedule property for the period from 1992 to 1995,and as exclusive owners subsequent to the partition, and therefore, the plaintiff is not entitled to injunction and accordingly dismissed the I.A. No.10 of 2007. We have heard the learned counsel for the appellant and also learned counsel for the respondents. We have taken out through the respective pleadings and also the impugned order. No doubt, the plaint was not happily drafted by the counsel, but the fact remains defendants 1 to 4 and father of defendants 5 and 6 are entitled to 1/5th share each in the suit schedule property. According to the respondents/defendants the properties were already divided, whereas the plaint averments shows that the plaint schedule property was not divided among the brothers and the same is still joint family property. A reading of para 4 of the plaint do not disclose about the partition of the remaining properties among the brothers and the suit property was kept in joint, but only shows that the father of plaintiff i.e., defendant No.1 got the proceeding before the Joint Collector dismissed with a view to deprive the rights of the plaintiff in the suit schedule property. Under Ex.B11, which has been produced by the parties, the properties were, no doubt, divided among the five brothers, but under condition No.8 it was specifically mentioned that the usufructs out of the Palm trees i.e., Sendri trees, which are standing in the name of Ramaiah, has to be enjoyed by himself and his two wives i.e., mother of respondents 1 to 4 and grand mother of respondents 5 and 6, but the said properties were equally divided among five brothers and to the said effect V. Ramaiah should execute a Will Deed in their favour. But, no such Will Deed has been produced by either of the parties to show that the property was divided among the five brothers as agreed under Ex.B11. In the absence of the same, there is sufficient force in the contention of the learned counsel for the appellant that the above property is still treated as a joint family property and all the five brothers should have equal share in it including his father defendant No.1 and the plaintiff is entitled to half share out of 1/5th share, which is allotted to the share of his father defendant No.1. In view of the same, prima facie, the plaintiff is able to show that the suit schedule property is belonged to the joint family, which is not being allotted into five equal shares as agreed by the parties under Ex.B11. Therefore, no third party rights can be created by either of the parties pending disposal of the suit. The lower Court, without considering the above clause under partition deed Ex.B11, observed that all the properties were already divided among the brothers and they are in possession of their respective shares. In view of that, the impugned order passed by the lower Court is liable to be set aside. Accordingly, the impugned order dated 21.01.2009 passed by the lower Court in I.A. No. 10 of 2007 in O.S. No. 962 of 2006 is set aside and the ex parte injunction granted in December 2006 restraining the respondents from alienating the suit schedule property is allowed to continue till disposal of the suit. The lower Court shall make an endeavor to dispose of the suit uninfluenced by any of the observations made by this Court only for the purpose of disposing of this CMA. The C.M.A. is accordingly disposed of. No costs. _______________________ A. GOPAL REDDY, J. ___________________ B. CHANDRA KUMAR, J. Date: 11.08.2009 Nsr