IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.859 of 2011 Dated:14-09-2011 Between: Smt.Gadipelli Niranjani Devi. ….Appellant. And Smt.Hari Sarojini Devi and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A.No.859 of 2011 ORDER: (per the Hon’ble Sri Justice N.V.Ramana) This appeal is directed against the Orders passed in I.A.No.73 of 2011 in O.S.No.8 of 2010 by the VIII Additional District Judge (Fast Track Court) Warangal on 30.04.2011. The appellant herein has filed the above said petition under Order 39 Rules 1 and 2 CPC restraining the respondents, their family members, servants etc., from alienating or transferring the suit schedule property pending 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 petitioner, herself, respondent Nos.1 to 9 are the brothers and sisters and children of late J.Venkatramaiah and late J.Suguna Devi. On the death of their parents, they were owning and possessing 4 house properties, which are shown in plaint ‘A’ schedule besides agricultural lands at various places and movables including cash, gold, silver and other valuable articles, which are shown in plaint ‘B’ schedule. The petitioner, her brother and sisters i.e. respondent Nos.2 to 8 enjoyed all the properties jointly and after demise of their parents, respondent Nos.2 to 8 are managing the properties without partitioning and allotting 1/10th share to the petitioner. Item No.1 of plaint schedule property admeasuring about 1700 square yards and the petitioners came to know that respondent Nos.1 to 9 trying to alienate or enter into sale agreement or development agreement with respondent Nos.10 to 14 in order to defraud her valuable right. Therefore, she has filed the suit for partition of the suit schedule properties and filed the present application for grant of injunction against the respondents restraining from alienating or transferring the suit schedule property. The respondent No.4 has filed the counter on behalf of respondent Nos.2, 3, 5 to 8 opposing the said application stating that Item No.1 of plaint – A schedule was an old house and was demolished in December, 2009 and he along with his brothers entered into development agreement with respondent No.10 and he also excavated the land and laid pillars and making constructions and they are at the final stage. They further stated that the petitioner was excluded from share in the properties of their parents with her express consent as she was present at the time of family partition of item No.1 of plaint ‘A’ schedule between their mother and respondent Nos.2 to 8 after the death of their father in 1982 with respect of item Nos.2, 3 and 4 of plaint ‘A’ schedule property. They stated that the said property was already alienated in favour of respondent Nos.10 to 14. They further pleaded that they never in joint possession of suit schedule property. The petitioner refused to claim any share in the sale proceeds when respondent No.14 purchased item No.4 of plaint ‘A’ schedule property. They further pleaded that if the petitioner succeeds in her claim, she can get a share from out of their 50% in item No.1 of plaint ‘A’ schedule, which is under development as commercial complex and prayed for dismissal of the petition. Respondent Nos.10 to 14 have filed their separate counters stating about the purchase of property from respondents Nos. 2 to 8 and on their enquiry it was revealed that the petitioner and her sisters have relinquished their rights over the properties of their father. As such, she is not entitled for the relief as prayed for. On behalf of the petitioner, Exs.A.1 to A.46 were marked. On behalf of the respondents, Exs.R.1 to R.6 were marked. The learned Additional District Judge after going through the said documents and pleadings of the respective parties held that the petitioner is not entitled for any relief and thereby dismissed the petition. Aggrieved by the said Order, the petitioner therein has filed the present appeal. Learned counsel for the appellant has pleaded that the petitioner being one of the legal heirs along with respondent Nos.1 to 9 of their deceased parents, she is entitled for her share in the suit schedule properties and as the respondent Nos. 2 to 8 have entered into development agreement with respondent No.10 and respondent No.10 has already alienated his share in the item No.1 of plaint ‘A’ schedule property and respondent Nos.2 to 8 are having remaining 50% share and they are also trying to alienate their share and if they are permitted to alienate entire property, she would be put to irreparable loss and her claim for 1/10th share in the suit schedule property would be frustrated. Learned counsel for 2nd respondent, on the other hand, has pleaded that the petitioner has not claimed any share in the sale proceeds of item No.4 which was sold in favour of respondent No.14. She also relinquished her share in the entire property at the time of family partition between themselves and their mother. Therefore, she is not entitled for any share in the suit schedule property. The appellant herein also filed C.M.A.M.P.No.1577 of 2011 for grant of ad-interim injunction restraining all respondents from alienating the suit schedule property, pending disposal of the appeal. Respondent Nos.3 and 10 have filed their counters in the said C.M.A.M.P. opposing the said petition. When the said C.M.A.M.P. is coming up for hearing, both parties agreed for the disposal of the main C.M.A. itself. The main contention of the appellant’s counsel is that if the respondents have disposed of the property, it is difficult to get her share even if she succeeds in the main suit. The respondents have denied about petitioner’s share in the suit schedule property in view of relinquishing her right. Respondent No.3 has filed counter in the C.M.A.M.P.No.1577 of 2011, wherein he has stated that there is no question of alienation of 50% share of respondent Nos.2 to 8 in item No.1 of the plaint schedule property, as it is only livelihood for them. During the course of hearing, Sri Y.Hema Chander, the counsel appearing for respondent No.3, has submitted that he is also appearing for respondent Nos.2 and 4 to 8 and stated that respondent Nos.2 to 8 will not alienate their 50% share in item No.1 of the plaint schedule property during pendency of the suit. In view of the statement made in the counter-affidavit and the statement made by the counsel for respondent Nos.2 to 8 across the bar, the interest of the appellant is sufficiently protected. In the circumstances, placing on record the statement made by the counsel appearing for respondent Nos. 2 to 8 that respondent Nos.2 to 8 will not alienate their 50% share in item No.1 of the plaint schedule property, we dispose of the civil miscellaneous appeal, directing the Court below to dispose of the suit as expeditiously as possible. No Order as to costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:14-09-2011 Ksp