THE HON’BLE SMT JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA CMA Nos. 353 &354 of 2010 COMMON ORDER: (per T.Meena Kumari, J.) 01. These two appeals arise out of a common order dated 27- 10-2009 passed in IA No. 729 and 730 of 2009 in OS No. 269 of 2009 on the file of I Additional District Judge, Ranga Reddy, wherein the prayer of the petitioner for grant of temporary injunction restraining the respondents and their men from alienating or creating any charge or encumbrances over the petition schedule properties, and also not to change the nature of the petition schedule property has been negatived. 02. The appellant herein is the petitioner and the respondents herein are the respondents. The appellant filed the above I.As Under Order 39 Rules 1 & 2 of CPC for grant of temporary injunction restraining the respondents and their men from alienating or creating any charge or encumbrances over the petition schedule properties, and also not to change the nature of the petition schedule property pending disposal of the suit. 03. The averments in the affidavit filed in support of the petitions are that the petitioner filed the suit for declaration, partition and separate possession of the suit schedule property and that the respondents 1 to 19 are the legal heirs and descendants of late Pendyala Pentaiah who is their common ancestor, that he was the occupant of inam land admeasuring Ac 5.29 guntas out of Ac. 11.19 guntas in survey No.178 and Ac 4.33 guntas out of Ac 9.25 guntas in survey No.179 situated at Kondapur village of Serilingampally mandal, that the legal heirs of late Rameswaram @ Velimala Sayanna were the occupants of the other half of the land in Survey Nos. 178 and 179 of Kondapur village and that the Inam Tribunal cum RDO, Chevella division granted occupancy rights in favour of late Pendyala Pentaiah to an extent of half of the land in survey Nos. 178 & 179 and the balance half extent in favour of the legal heirs of late Rameshwaram @ Sayanna under proceedings No. A1/94/75 dated 29-01-1979 under the provisions of AP(TA) Abolition of Inams Act 1955, pursuant to which, her father’s name Pendyala Pentaiah was incorporated in the record of rights as pattadar inrespect of the suit schedule lands. It is stated that her father died in the year 1994 leaving behind herself, two surviving sons namely Pendyala Mallaiah and Pendyala Swamy and legal heirs of pre-deceased son by name Pendyala Jangaiah i.e., respondents 1 to 6 as his legal heirs to succeed the suit schedule lands; thus she is entitled to 1/4th undivided share in the suit schedule land along with the above named surviving brothers and legal heirs of the deceased brother, therefore, her surviving brothers namely Pendyala Mallaiah and Pendyala Swamy succeeded to 1/4th undivided share each and while the respondents 1 to 6 who are the legal heirs of her deceased brother late Pendyala Jangaiah succeeded to 1/4th undivided share in suit schedule lands. It is stated that the suit schedule lands have been in joint possession and enjoyment of herself, her two brothers and respondents 1 to 6, and her brothers were managing the suit schedule properties on behalf of the four shareholders. Subsequently, out of two surviving brothers, Pendyala Mallaiah also expired leaving behind the respondents 7 to 14 to succeed his undivided 1/4th share in schedule properties. Respondents 16 to 19 are the sons and daughters of 15th respondent. The suit lands are not subjected to partition by metes and bounds among the shareholders. Therefore, she is entitled to 1/4th undivided share in the suit schedule lands. It is also stated by the petitioner that she is staying at her matrimonial house in Velimala village and during her visit to Kondapur village in February 2009, she found that a compound wall was being constructed on one side of the suit B-schedule land and another part of B Schedule was being leveled. Then she approached respondents 1 to 9 to find out the details as to why the compound wall was being constructed without partition but there was no answer from them. Having suspected respondents 1 to 9, she has made enquiries and surprised to learn that respondents 1 to 5 during the life time of her elder brother Mallaiah, in collusion with him and 15th respondent, filed a suit for partition of the suit A & B schedule properties among themselves; and without disclosing her existence, obtained a collusive preliminary decree for partition of the suit schedule lands into three equal shares under judgment dated 3.8.1999 in O.S.No. 82 of 1999 on the file of I Additional District Judge, Ranga Reddy District.. Pursuant to the said judgment, final decree proceedings were initiated in IA No.2432 of 1999 and commissioner was also appointed for partition of the suit schedule lands as per preliminary decree and got obtained a collusive report from commissioner, partitioning the suit schedule properties into three shares by showing allotment of one such share each to the plaintiffs and defendants 1 & 2 therein. Further, the respondents 1 to 5, 15th respondent and his family members, late Pendyala Mallaiah and his family members executed collusive and nominal sale deeds in respect of their alleged allotted share of lands in plaint B described property in survey No.179 in favour of respondents 20 to 22 under registered sale deeds. She could realize the conspiracy hatched among respondents 1 to 5 in collusion with 15th respondent and late P Mallaiah and the execution of sale deeds in favour of respondents 20 to 22 in the month of February 2009. She is not a party either to the preliminary decree or to the final decree in O.S.No. 82 of 1999 on the file of I Additional District Judge, Ranga Reddy District or to the above referred sale deeds executed by the respondents 1 to 19 and late Mallaiah in favour of the respondents 20 to 22 in respect of B schedule property and therefore they are not binding on her. It is also her case that suit A & B schedule properties were exclusive properties of her father late Pendyala Pentaiah and on his demise, they were jointly succeeded by her and her two surviving brothers and legal heirs of deceased brother, in equal share, and as such she has 1/4th undivided share in suit A & B schedule properties. But the respondents 1 to 9 have set-up respondents 20 to 22 by executing nominal and collusive sale deeds to deprive her legitimate 1/4th share in suit B schedule property. On 12-04-2009 she has demanded the respondents for partition of suit A schedule property into four equal shares and also B schedule properties into four equal shares by metes and bounds but the respondents refused for partition and allotment of her 1/4th share. Hence, she filed the suit and also the above petitions for grant of temporary injunctions. 04. From the order under appeal, the respondents 1 to 19 remained ex parte and failed to contest the proceedings. The 20th respondent filed counter on his behalf and on behalf of respondents 21 & 22 denying all the averments in the petition. The contesting respondents submitted that the claim for partition is invented only for the purpose of the suit as the petitioner does not have any right over the schedule land as it is evident from the circumstances that the present suit is filed after passing of decrees dated 3-12-2008 in two other suits in OS No. 784 and 789 of 2002 on the file of Principal Senior Civil Judge, Ranga Reddy District, where, the title of these respondents was declared and permanent injunction was granted against several parties. Since these respondents were given benefit under the said decree, the petitioner hatched the plan of filing the present suit with an ulterior motive. The respondents specifically denied the relationship (daughter) of petitioner with Pendayala Pentaiah who along with late Rameswaram was granted occupancy rights certificate on 20-3-1979 which is the title document for the suit land. The respondents reiterated that the petitioner is not the daughter of late Pendyala Pentaiah and she is taking such a claim for the first time for seeking partition of the schedule lands. Hence, the petitioner has to establish that she is the daughter of late Pendyala Pentaiah. The petitioner is making a false and fraudulent claim to the effect that she is the daughter of late Pendyala Pentaiah. It is evident that the petitioner is aged about 60 years as on the date of filing the suit and it is absurd and unable to digest that why she has kept quiet all these years if at all she has any right in the petition schedule lands. At any rate, by her conduct, she is precluded from claiming any relief of partition, after lapse of such a long time. The petitioner is not the sister of Pendyala Mallaiah, late Pendyala Jangaiah and Pendyala Swamy and hence she is not entitled for 1/4th share as claimed. The suit is a product of collusion between the respondents 1 to 19 who had lost the suits in OS No. 784 and 789 of 2002 on the file of principal Senior Civil Judge’s Court, Ranga Reddy District, wherein, the title and possession of these respondents was declared. The respondents denied all the averments in her affidavit, except the factum of compromise partition decree that was passed in O.S. No. 82 of 1999 on the file of I Additional District Judge, Ranga Reddy District and passing of final decree in IA No. 2432 of 1999. At any rate, the preliminary decree in the said suit was passed on 3.8.1999 and final decree was passed on 27-12-2000 and therefore, the petitioner cannot canvass the correctness or validity of the said proceedings since such a challenge is barred by law of limitation. Since the petitioner has not stated as to how and when she came to know about the said preliminary decree and final decree, the period of three years for the purpose of limitation is to be reckoned from the year 2000, in which case the suit claim is hopelessly barred by time. The petitioner is not the daughter of late Pendyala Pentaiah and she has now invented the relationship for the purpose of knocking away the valuable schedule property. The present suit is filed in order to extract money from these respondents, as the value of the suit land has increased multifold and as the suit land is situated in prime locality of the city. It is also the case of these respondents that late Pendyala Pentaiah and five sons of late Rameswaram, Sayanna were jointly granted occupancy rights certificate on 29-3-1979 in respect of land measuring Ac 21.04 guntas in survey Nos. 178 and 179 of Kondapur village and thus the said grant was exclusive to late Pendyala Pentaiah to an extent of half share. Late Pendyala Pentaiah had only three sons, namely Pendyala Mallaiah, Pendyala Jangaiah and P Swamy. Out of the said three brothers Pendyala Jangaiah had predeceased other two brothers and his widow Pendyala Narasamma has filed partition suit in OS No. 82 of 1999 on the file of I Additional District Judge’s Court, Ranga Reddy District, seeking partition and the said suit was decreed and final decree proceedings were also passed dividing the property into three shares. Having verified the flow of title, these respondents purchased total extent of Ac 4.32 guntas in survey No. 179 under four registered sale deeds from Pendyala Swamy, Pendyala Mallaiah andlegal heirs of Pendyala jangaiah. On the strength of registered sale deeds dated. 27.7.2002, 31.7.2002, 31.7.2002 & 27.7.2002, in the name of respondent Nos. 20, 22 and 21 respectively, the respondents have filed two suits in OS No. 784 and 789 of 2002 and the said two suits were decreed, granting the relief of declaration of title and permanent injunction in favour of the respondents. Thus, the respondents are the absolute owners and possessors of the land admeasuring Ac 4,33 guntas i.e., suit B-schedule property. The respondents are no way concerned with the lands in survey No. 178 of Kondapur village. Thus, the suit is filed without any foundation and it is only a speculative suit. The petitioner is not entitled to any interim order pending suit. Hence, the petitions are liable to be dismissed with exemplary costs. 05. Before the court below, documents were marked in IA No. 729 of . 2009. On behalf of the petitioner, Exhibits P1 to P14 are marked. On behalf of the respondents, Exhibits R1 & R2 were got marked. 06. On appreciation of the material placed before it, the court below recorded a finding that the petitioner failed to establish all the three accepted principles of prima facie case, balance of convenience and irreparable loss for grant of temporary injunction and therefore dismissed the petitions. 07. Aggrieved against the said common order, the above two miscellaneous appeals have been preferred by the petitioner therein. 08. The counsel for appellant submitted that the appellant herein is the daughter of late Pendyala Pentaiah which fact was admitted by the legal heirs of other coparceners in the joint family property and they also admitted in their written statement. Learned counsel further submitted that though the appellant got filed some third party affidavits in support of her contention that she is the daughter of Pendyala Pentaiah, the court below ignored and overlooked such overwhelming and relevant material and erroneously observed that the appellant did not place any material before it showing her as daughter of Pendyala Pentaiah. Learned counsel further submitted that respondents 1 to 6 as legal heirs of appellant’s deceased brother late Pendyala Jangaiah in collusion with her two surviving brothers i.e., P Mallaiah and P Swamy got instituted a collusive partition suit among themselves in OS No. 82 of 1999 for partition of the suit properties without disclosing the existence of appellant and without arraying her as a party and obtained a collusive preliminary decree for partition from the lower court and obtained collusive report from the advocate commissioner in the final decree proceedings and therefore it is not binding on the appellant. Learned counsel submitted that the amendment of 2005 to Section 6 of Hindu Succession Act has placed the daughter on par with sons and she is a coparcener to the suit properties and entitled to seek partition of her 1/4th share in the suit properties and the collusive preliminary decree does not in any way effect her legal right and her legitimate entitlement to 1/4th share in the suit properties. Learned counsel also submitted that the contesting respondents 20 to 22, who are the purchasers of suit property from the other legal heirs of the coparceners of the appellant, they cannot claim any right over and above the rights of respondents 1 to 19 and that at best they are successors-in-interest of 3/4th share in the suit property. The joint possession of the appellant is presumed by law and her suit for partition is sustainable. Learned counsel further submitted that impugned order, which was passed without looking into all the above facts, needs interference by this court and the same is liable to be set aside and the petitioner is entitled for grant of temporary injunction etc., pending suit. 09. On the other hand, learned counsel appearing for respondents Nos. 20 to 22 submitted that having verified the flow of title, these respondents purchased total extent of Ac 4.32 guntas in survey No.179 under four registered sale deeds from Pendyala Swamy, Pendyala Mallaiah and legal heirs of Pendyala Jangaiah and on the strength of registered sale deeds, they have filed two suits in OS No. 784 and 789 of 2002 and the said two suits were decreed granting the relief of declaration of title and permanent injunction in their favour and therefore they are the absolute owners and possessors of the land measuring Ac 4,32 guntas i.e., suit B schedule property and as such the petitioner is not entitled for any interim order against them and the suit itself is a speculative one. Learned counsel in toto supported the impugned order passed by the court below. Learned counsel also submitted that mere filing of third party affidavits, without adducing any evidence to prove that the appellant is the daughter of late Pendyala Pentaiah and she is entitled to a share along with the sons of Pentaiah does not help the petitioner in any way. It is also contended that the respondents being the true-owners, injunctions cannot be granted. 10. Heard both the learned counsel and perused the material available on record. 11. The appellant herein who is the petitioner before the court below filed the suit for partition and separate possession claiming 1/4th share in the suit schedule properties against her alleged brothers and other legal heirs of her coparceners. Pending the said suit, she filed the above petitions under Order 39 Rules 1 & 2 CPC for grant of temporary injunction against the respondents therein i.e., the legal heirs of her coparceners and also the subsequent purchasers contesting respondents) to restrain them from alienating or creating any charge or encumbrance over the petition schedule properties pending disposal of the suit. The appellant is claiming a right in the properties of her alleged father late Pendyala Pentaiah by relying on the provisions of Section 6 of Hindu Succession (Amendment)Act, 2005, where under the daughter of a coparcener is recognized as a coparcener in her own right in the same manner as the son. Section 6 of Hindu Succession Act, reads as follows: “6. Devolution of interest of coparcenary property;- (1) On and from the commencement of the Hindu Succession (Amendment)Act, 2005 ina Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, - (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; © be subject to the same liabilities in respect of the said coparcenary property as that of a son, And any reference to a Hindu mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener; Provided that, nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2)xxxxxxx (3)xxxxxxx (4)xxxxxxxx (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December 2004. Explanation: For the purpose of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a Court.)” 12. In the case on hand, though the appellant is claiming a share along with other coparceners, as the contesting respondents are questioning her status as the daughter of Pendyala Pentaiah, unless and until she proves that she is the daughter of late Pendyala Pentaiah, her rights in the suit schedule properties cannot be decided, which exercise has to be made in the main suit only but not at the interlocutory stage. Even the petitioner has not established prima facie in the interlocutory applications that she is the daughter of late Pentaiah, except filing some third party affidavits. She has not filed any documents to show that she is the daughter of late Pentaiah in the I.As. The present appeals have been preferred against the order of injunction. What has to be seen in these appeals is as to whether the petitioner is able to prove prima-facie case, balance of convenience and irreparable loss for grant of interim injunction as prayed for. This court called for the entire record from trial court, which discloses the existence of only third party affidavits. But those third party affidavits were not considered by the trial court, while passing the impugned order. Now it has to be seen whether non consideration of third party affidavits would entail the remand of the matter to the trial court. It may be a fact that third party affidavits might not have been considered, but an over all reading of the impugned order and also the material on record clearly disclose that the brothers of the appellant filed a partition suit in OS No. 82 of 1999 on the file of Principal Senior Civil Judge, Ranga Reddy and the same was decreed on 3-8-1999 partitioning the properties of late Pentaiah among the three brothers of the appellant. The silence on the part of the appellant for a period of a decade without questioning the validity of the judgment in the above suit would create a doubt as to whether she has any right over the said property and whether she is the daughter of late Pentaiah. In view of the above, the observations of the lower court that due to lapse of time, there are also reasons to believe that the appellant has relinquished her share in the suit schedule property because of her conduct in not claiming the suit schedule property for a period of 15 years cannot be found fault with. Further, though the petitioner claims that she is in joint possession and enjoyment of the plaint B schedule property, as rightly observed by the court below that the documentary evidence in exhibits P7 to P10 and exhibit P14 falsified the said fact and therefore the appellant failed to establish her possession over the suit schedule property on the date of the suit and it is hard to believe that prima facie she is entitled for an injunction. It is also to be noticed that no document relating to the status of the appellant showing that she is the daughter of late Pentaiah was brought on record except mere filing of some third party affidavits. Under the above circumstances, this court is of opinion that non-consideration of third party affidavits, which were allegedly filed in the trial court, is not a ground to set aside the impugned order. Further more, this court is of the opinion that those affidavits would at best be helpful to the case of the appellant during the trial in the suit. Further, mere filing of third party affidavits will not be of any avail particularly when the documents disclose that the respondents 20 to 22 are in possession of suit schedule property as on the date of the suit, since the date of purchase, which finding in the opinion of this court is based on material on record. All the contentions have to be tested after the entire evidence is recorded in the trial court and therefore at the interlocutory stage, it is not desirable to hold that the appellant/petitioner is entitled to injunction and therefore it cannot be said that there is a balance of convenience in favour of the appellant. Since the right of the appellant in the suit schedule property is not established and if at all she would succeed in the suit, as rightly observed by the court below, she can claim monetary value of her 1/4th share and therefore no irreparable loss in the event of refusal to grant temporary injunction. As per the amendment to Section 6 of Hindu Succession Act also, as the partition had already took place by virtue of a court decree dated. 27.12.2000, the question remains whether she is entitled for a share, even if her status as a daughter is proved. The said question has to be decided in the main suit. For the all the above reasons, we are of the opinion that the order of the court below needs no interference and is perfectly valid. 13. Accordingly, these two civil miscellaneous appeals are dismissed. However, the court below is directed to dispose of