THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 977 of 2010 Judgment: This Civil Miscellaneous Appeal is directed against the order dated 19.10.2010, passed by the Judge, Family Court-cum-Additional District Judge, Khammam, in I.A. No. 423 o 2010 in O.S. No. 48 of 2010, vacating the order of interim injunction dated 14.07.2010. The appellant filed the main suit for partition and separate possession of his undivided 1/6th share in the schedule property. He contended that the schedule property originally belonged to their great grandfather by name Bhusani Bangariah, and that after his death, the same devolved upon their grand father by name, Bhusani Istariah, and that defendant No. 1 is his father and that he and defendant Nos. 2 to 5 being his sons, as coparceners, are entitled to equal shares in the schedule property. Along with the suit, he filed interlocutory application seeking interim injunction. The Court below passed interim injunction order on 14.07.2010 in the interlocutory application. The respondents contested the interlocutory application by filing counter. The Court below having considered the matter, by the impugned order, vacated the interim injunction order dated 14.07.2010. Questioning the said order, the appellant filed the present appeal. The learned counsel for the appellant submitted that since the suit filed by the appellant is one for partition of the schedule property, unless and until the rights and shares of the respective parties are crystallized, the respondents have no right whatsoever to change the character or nature of the property, and it is the bounden duty of the Court, to ensure that the suit schedule property neither alienated not its character and nature is changed, but is well protected till the disposal of the suit, else it would cause irreparable loss to the appellant. Hence, he contended that the Court below without considering these aspects of the matter, has committed a grave error in vacating the order of injunction granted on 14.07.2010. In support of his arguments, he placed reliance on the decisions of the apex Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass[1] and Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble[2]. He thus contended that the order under appeal be set aside, the interim injunction order, which is vacated be restored, and the C.M.A. be allowed. On the other hand, the learned counsel appearing on behalf of respondent Nos. 8 to 10 supported the order under appeal. He submitted that the Court below was justified in vacating the interim injunction granted earlier, taking into consideration the fact that Exs. A1 to A3-certified copies of pahanies, do not stand in the name of Bhusani Bangariah, their great grandfather; that Exs. B1 and B2 show that the property in question is the self-acquired property of Ishtariah, who is the pattedar thereof; that Isthariah executed Ex. B1-sale deed in favour of defendant No.6, to which the father of the appellant also attested; that Exs. B1 and B3 to B13 showed that respondent No.14 is in physical possession of the property; that the appellant has full knowledge of Ex. B1-sale transaction even by the year 2003. He further submitted that the Court below having found that the appellant failed to make out any prima facie case and balance of convenience, accordingly dismissed the injunction application filed by the appellant- plaintiff, and vacated the interim injunction granted, by reason of the impugned order, and no interference is called for therewith. He thus prayed that the appeal be dismissed. We have heard the learned counsel for the appellant-plaintiff and the learned counsel for respondent Nos. 8, 9 and 10-defendants and also perused the order under appeal. Though the appellant claimed that the suit schedule property is joint family property and belonged to their great grandfather Bhusani Bangariah, the fact remains, the Court below upon perusing the material filed by the appellant, namely Exs. A1 to A3-pahanies, found that they do no stand in the name of Bhusani Bangariah, and that the appellant failed to produce any material, which prima facie would go to show that the schedule property belonged to his great grandfather Bhusani Bangaraiah. And on the other hand, the Court below found that respondent Nos. 8 to 10 filed material, namely Exs. B1 and B2, to show that the suit schedule property is the self-acquired property of Bhusani Istariahd, who under Ex. B1 sold he same to respondent No.6 and had also put her in physical possession of the same. The Court below also found that respondent No.1, who is the father of the appellant, had attested Ex. B1-sale deed. The Court below held that when respondent No.1, who is the father of the appellant, did not dispute the status of the property being joint and, in fact, attested Ex. B1-sale deed, it was not open to the appellant to contend that the schedule property is joint family property. The Court below further found that Exs. B1 to B15, filed by respondent Nos. 8 to 10 and 14 prima facie indicated that Bhusani Istaraiah, was the pattedar of the schedule property and that it was his self-acquired property, and that their great grandfather, Bhussani Bangariah, had nothing to do with the schedule property. The Court below further found that the appellant failed to prove that he was in possession of the schedule property, and on the other hand, Exs. B1, B3 to B15, showed that respondent No.14 was in possession of the schedule property and that he was making construction therein, and that the appellant, who is not in possession of the schedule property, is not entitled to grant of injunction. The Court below also found that the appellant did not approach the Court with clear hands, in that, even though he was aware of the sale transaction under Ex. B1-sale deed, to which his father attested, yet suppressing the said fact, has filed the suit for injunction. That Exs. B15, which is copy of paint in O.S. No. 86 of 2003 on the file of the Senior Civil Judge, Khammam, and the copy of the order dated 27.10.2007 passed therein, which is marked therein as Ex. B14, clearly indicates that he appellant has full knowledge of Ex.B1-sale transaction even by the year 2003. That the appellant failed to make out any prima facie case and that balance of convenience lay in favour of the respondents, and accordingly vacated the interim injunction order granted earlier, particularly when it was of the view that since the suit was one for partition, in the even of the appellant succeeding in the suit, equities could be worked out. As seen from the prima facie findings recorded by the Court below, as noted above, the appellant failed to show that the schedule property belonged to his great grandfather Bhusani Bangaraiah, and on the other hand, the material filed by respondent Nos. 8 to 10 and 14 showed that the schedule property was purchased by them and they were also put in possession. Since the alienation of the schedule too place in favour of respondent Nos. 8 to 10 and 14, much before the appellant filed the present suit, and considering the fact that the alienation was also in the knowledge of the appellant, it was not open for him to contend that the Court below ought not to have vacated the interim injunction granted earlier. As alienation of he property took place much before the appellant filed the present suit for partition, reliance placed by the learned counsel for the appellant on the judgment of the apex Court in Maharwal Khewaji Trust (Regd.), Faridkot v. Baldev Dass, in support of his argument that unless a case of irreparable loss or damage was made out by a party to the suit, the Court should not permit nature of property being changed and the judgment of the apex Court in Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble, in support of his argument that unless the property is partitioned by metes and bounds, possession cannot be handed over to the vendee, would be of no assistance to the appellant. The order under appeal, having been passed by the Court below upon recording its prima facie satisfaction and considering the fact that balance of convenience lay in favour of the respondents, and that if in the event the appellant succeeds in the suit, equities could be worked out, we are of the considered opinion no interference is called for therewith by this Court in exercise of its appellate jurisdiction. The C.M.A. is devoid of merit, and the same is accordingly dismissed. No costs. ________________ N.V. RAMANA, J. _______________________ B. CHANDRA KUMAR, J. Dated: 8th December, 2010 KSR [1] 2004 (8) Supreme 199 [2] (2009) 10 SCC 654