THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE K.S. APPA RAO C.M.A.Nos.357, 360 and 361 of 2011 COMMON JUDGMENT: (Per K.S. Appa Rao, J) C.M.A.No. 357 of 2011 This C.M.A. is preferred against the orders in I.A.No.1535 of 2010 in O.S.No. 44 of 2010 dated 10.3.2011. I.A.No. 1535 of 2010 was filed under Order 39 Rule 1 C.P.C. to appoint an interim receiver to administer the petition schedule property to collect the rents and to deposit the said money into the Court pending disposal of the suit. Having aggrieved with the dismissal of the petition by the Court below, the present C.M.A. is filed by the petitioners-plaintiffs. C.M.A.No. 360 of 2011 This C.M.A. is preferred against the orders in I.A.No.1537 of 2010 in O.S.No. 44 of 2010 dated 10.3.2011. I.A.No. 1535 of 2010 was filed under Order 39 Rule 1 C.P.C. to grant temporary injunction restraining the respondents-Defendant Nos. 2 and 3 from creating encumbrances over the petition schedule mentioned properties in favour of the institutions, banks, individuals and corporations, pending disposal of the suit. Having aggrieved with the dismissal of the petition by the Court below, the present C.M.A. is filed by the petitioners-plaintiffs. C.M.A.No. 361 of 2011 This C.M.A. is preferred against the orders in I.A.No.1534 of 2010 in O.S.No. 44 of 2010 dated 10.3.2011. I.A.No. 1535 of 2010 was filed under Order 39 Rule 1 C.P.C. to grant temporary injunction restraining the respondents-Defendant Nos. 2 and 3 from alienating the petition mentioned schedule properties till disposal of the suit. Having aggrieved with the dismissal of the petition by the Court below, the present C.M.A. is filed by the petitioners-plaintiffs. As the subject mater and the parties in all the above C.M.As. are common, all the C.M.As. are being disposed of in this common judgment. For brevity and better understanding the nomenclature of the parties arrayed in the lower Court will be arrayed same in the present appeal also. Appellants herein are the petitioners-plaintiffs in O.S. No. 44 of 2010. They state that the petition schedule properties are joint family properties. That they are residing separately, but enjoying the petition schedule properties jointly and the income of the petition schedule properties is also being shared. The 2nd respondent-defendant No.3 is mentally imbalanced person and he is staying with the 1st respondent-defendant No.2. It is alleged that the 1st respondent-defendant No.2 without any right is trying to create document in favour of third parties and after coming to know about the sale, these petitioners demanded for partition and separate possession, but the respondents are not given any proper reply. Hence, filed the suit and for consequential reliefs. The 1st respondent-defendant No.2 filed his counter and the same was adopted by the 2nd respondent-defendant No.3. According to them, the suit schedule properties were already divided by Dr. V. Tirumala Rao as per Will dated 14.4.1994 and the same was accepted by his wife and children. Prima facie the Will dated 14.4.1994 shows that the properties noted as “A” to “E” were allotted to 1) V. Jaya Lakshmamma, 2) Dr. V. Satya Narayana Rao(father of petitioners 1 and 2 and husband of petitioner No.3), 3) V. Muralidhar Rao(defendant No.1), 4) V. Nataraja Rao(respondent No.1) and 5) V. Jagan Mohan Rao(respondent No.2). The division of properties under the will dated 14.4.1994 is acted upon. The father of petitioner Nos. 1 and 2 and husband of petitioner No.3 Dr. V. Satya Narayn Rao got item No.3 of the petition schedule properties and he sold the same to T. Pratap Kumar for Rs. 4,08,000/- and sold another part of the property to one Gajjala Sudarshana Rao under a registered sale deed for a sum of Rs. 2,55,600/- and retained the remaining property in item No.3 of the petition schedule properties. He constructed a house bearing No. 25/174A and executed a un-registered will dated 1.7.2005 in favour of his wife (Mutation was also effected in respect of the said property bearing H.No. 25/175) and in turn she executed a registered gift deed dated 27.4.2009 in favour of 1st petitioner and the 1st petitioner having accepted the said property availed loan from the bank by depositing the title deeds and constructed 1st floor on the house. V. Jaya Lakshmamma, wife of Dr. V. Thirumala Rao purchased item No.2 of the petition schedule properties under a registered sale deed and a house was constructed in the said property. The said property was allotted to her under a Will dated 14.4.1994 and the same was accepted by all the sons under agreement dated 25.5.1995. Smt. V. Jaya Lakshmamma bequeathed the said property in favour of her daughter-in-law Smt. V. Subba Laxmi under a registered Will dated 28.12.2008 and after the death of V. Jaya Lakshmamma, Smt. Subba Laxmi succeeded to the said property. Item No.1 of the petition schedule property was allotted to V. Muralidhar Rao under a Will dated 14.4.1994 and he sold the same to Patan Aslam Khan under a registered sale deed and he in turn sold the same to Mohammed Usman Basha under a registered sale deed and he is in possession and enjoyment of the same. Item No.4 of the petition schedule property was allotted to 2nd respondent under a Will dated 14.4.1994, 1st respondent was nominated as guardian to 2nd respondent. Thus, the property in possession of the 1st respondent is of the guardian of 2nd respondent. It is further averred that the petition schedule properties are not joint family properties and the respective owners are in possession and enjoyment of their respective properties and hence, the subsequent purchasers T. Prathap Kumar, Gajjala Sudarshana Rao, Mohammed Usman Basha, V. Subba Laxmi are necessary parties and the petition is bad for non-joinder of necessary parties. The appellants-plaintiffs in all the above I.As. filed the present C.M.As. contending that the suit schedule properties are joint family properties, but the Court below erred in observing that the properties are already partitioned and that the parties are in possession of their respective shares, and that they have failed to make out any prima facie case and there is no balance of convenience in their favour. He further contended that the trial Court erred in going into the fact as to whether the properties are joint family properties or not at the interlocutory stage and has arrived at a wrong conclusion and the trial Court failed to appreciate the facts in a proper perspective and came to a wrong conclusion. The learned counsel for the respondent supported the Order of the trial Court. Now the point for consideration is whether the orders of the trial Court are sustainable. The appellants-plaintiffs contend that the suit schedule properties are joint family properties. They claim to have share in the same. And until the suit schedule properties are partitioned and suit is disposed of finally, the suit schedule properties should be protected from alienation by the respondents-defendant Nos. 2 and 3. Therefore, pending disposal of the suit, by way of the present applications, the appellants prayed for grant of temporary injunction restraining the respondents-defendant Nos. 2 and 3 from alienating the suit schedule properties, appoint a Receiver to administer the suit schedule properties, collect the rents and deposit the same in the Court, and restrain respondents- defendant Nos. 2 and 3 from creating any encumbrances over the suit schedule properties in favour of institutions, banks, individuals and corporations. The suit is one for partition of the suit schedule properties. Though the appellants-plaintiffs claim that the suit schedule properties are joint family properties, they have not filed any documents to show that that the suit schedule properties still continue to be joint family properties, except xerox copy of unregistered sale deed dated 24.03.1955. The questions, namely whether the suit schedule properties are joint family properties or not, and whether they were partitioned as contended by the respondents-defendant Nos. 2 and 3 are questions which have to be decided after full-fledged trial. However, the question is whether the appellants have made out any prima facie case for grant of temporary injunction, whether balance of convenience is in their favour for grant of temporary injunction and whether irreparable loss would be caused if no injunction is granted has to be seen. The appellants-plaintiffs, as noted above, in support of their claim that the properties are joint family properties, relied on xerox copy of unregistered sale deed dated 24.03.1955. While the respondents-defendant Nos. 2 and 3 in support of their case that the suit schedule properties are not joint family properties and that they were already divided, filed Exs. B1 to B29. It is the case of the respondents-defendant Nos. 2 and 3 their father, namely V. Tirumala Rao gave property under unregistered will dated 14.04.1994 to the father of appellant Nos. 1 and 2 and husband of appellant No.3, and that he sold the same to one T. Pratap Kumar and Gajjala Sudarshana Rao, and that he executed an unregistered will in favour of one Shakuntalamma on 14.07.2005, who subsequently executed gift deed dated 22.04.2009 in favour of appellant No.1 under Ex. B13. The Court below considering the documents filed by the respondents-defendant Nos. 2 and 3 and having regard to the recitals in Exs. B12 and B13, came to the prima facie conclusion that the parties are enjoying their respective share as per the unregistered will dated 14.04.1994, and that subsequent thereto, the properties were also alienated in favour of third parties. Having coming to such conclusion, the Court below held that appellants-plaintiffs failed to make out any prima facie case for grant of temporary injunction, that balance of convenience was not in their favour and that no irreparable loss would be caused if temporary injunction is not granted. Holding so, the Court below refused to grant any reliefs as prayed for by the appellants- defendant Nos. 1 and 2, and having regard to the facts and circumstances of the case, we find no reason whatsoever to interfere therewith. Hence, the C.M.As. are dismissed. However, neither the order of the Court below nor this order of this Court shall be treated to have expressed any opinion on the merits of the partition suit. The Court below shall dispose of the partition suit expeditiously on its own merits, uninfluenced by the observations made the Court below or by this Court in this order. No costs. __________________ N.V. RAMANA, J ___________________ K.S. APPA RAO, J 17.6.2011 CHV/KSR