THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA C.M.A.No.1198 of 2009 JUDGMENT: (Hon’ble Sri Justice B.N.Rao Nalla) This Civil Miscellaneous Appeal is filed against the order dated 03.9.2009 in I.A.No.1549 of 2009 in O.S. No. 269 of 2009 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the application filed by the appellants herein under Order XXXIX Rule 1 and 2 of Code of Civil Procedure (CPC) for temporary injunction restraining the respondents from alienating the application schedule properties, was dismissed. 2. For the sake of convenience, the parties hereinafter be referred to as the appellants and the respondents as arrayed in this C.M.A. 3. The appellants are the petitioners-plaintiffs, who filed the suit O.S.No.269 of 2009 for partition of the suit schedule properties. They also filed the present interlocutory application seeking temporary injunction restraining the respondents from alienating the application schedule properties. The appellants and the respondents are belonging to same family. The appellant No.1 is the daughter-in-law of respondents 1 and 2. Appellant No.2 is son of the appellant No.1. Respondents 3 and 4 are brothers-in-law of first appellant. 4. The claim of the appellants before the court below was that the first appellant’s husband died on 18.02.2009. He used to do real estate business, and he was in U.S.A. for a period of 6 to 7 years. The appellants and the respondents are the joint owners of the application schedule properties. Originally some of the application schedule properties belong to respondent No.1, who is father-in-law of the first appellant, and the same were acquired from the funds raised by selling ancestral properties in which her husband was a co-owner. The first appellant’s husband used to send money to the joint family and with his funds respondents 1 and 2 purchased other properties. After the death of her husband, she demanded partition of the application schedule properties. As the respondents refused to partition the application schedule properties, she filed the suit for partition along with this application for temporary injunction. 5. On the other hand, the respondents filed their counter stating that if the properties are jointly owned, the co-owner is not entitled to seek injunction against another co-owner. The appellants earlier filed O.S.No.216 of 2009 on the file of the Chief Judge, City Civil Court, Hyderabad for declaration claiming ownership of certain properties, which are not included in O.S.No.269 of 2009. The marriage of the first appellant was performed on 09.3.2008. The appellants left the house after the death of the husband of the first appellant. The application schedule properties belong to the respondents 1 and 2, who purchased the same with their own funds and they never sold any ancestral properties and there are no joint family properties available for partition. The petitioners are not joint family members along with the respondents. 6. On the basis of pleadings of both sides, the following point was framed for consideration: Whether the petitioners (appellants herein) are entitled for any temporary injunction as prayed for? 7. During the course of enquiry, on behalf of the appellants Exs.P.1 to P.33 were marked and on behalf of the respondents Exs.R.1 to R.19 were marked. 8. The court below after taking into consideration the documentary evidence brought on record by both parties and also after hearing the rival contentions of their respective counsel, came to the conclusion that the appellants are not entitled for interim injunction as they could not establish prima facie case and balance of convenience in their favour. Aggrieved by the same, the appellants filed this C.M.A. 9. Learned counsel for the appellants contended that the court below erred in observing that unless the appellants establish the application schedule properties are joint family properties, the respondents cannot be restrained from alienating the application schedule properties, though there is documentary evidence; that the court below ought to have taken into consideration the documents filed by the respondents along with their written statement, which clearly go to show that the respondents acquired the properties by withdrawing the cash or transfer Demand Drafts from the account of the husband of the first appellant, and that the court below at least ought to have granted status quo till disposal of the suit. 10. Per contra, the learned counsel for the respondents submitted that the court below has given cogent and convincing reasons for dismissing the interlocutory application for temporary injunction filed by the appellants, and as such, the impugned order does not warrant interference from this court. 11. Heard the learned counsel for the appellants and the learned counsel for the respondents and perused the record. 12. There is no dispute with regard to relationship between the appellants and the respondents. It is seen that the husband of the first appellant died on 18.02.2009. Thereafter, the disputes arose between the parties with regard to properties owned by the family. The first appellant is claiming the application schedule properties owned by the family as joint family properties, and whereas respondents 1 and 2’s claim is that they have purchased the application schedule properties with their own funds and there was no nucleus income or joint family properties available for partition. The first appellant earlier filed the suit O.S.No.216 of 2009 for declaration claiming ownership of certain properties, which are not included in O.S.No.269 of 2009. We have perused the documents marked on behalf of both sides and prima facie at this stage, it cannot be said that the properties are joint family properties. As such, as pointed out by the court below, unless and until, the trial in the suit is completed, the relief sought for by the appellants cannot be granted. Further, during the pendency of the suit, if the respondents tried to alienate the application schedule properties, the doctrine of lis pendence under Section 52 of the Transfer of Property Act will come to the rescue of the appellants. 13. Be that as it may, having regard to the relationship between the parties, and since the respondents filed written statement in the suit, we deem it appropriate to direct the court below to dispose of the main suit itself, uninfluenced by the observations made in this order, by affording opportunity to both the parties, as expeditiously as possible preferably, within a period of one year from the date of receipt of a copy of this order. 14. With the above direction, the C.M.A. is dismissed. There shall no order as to costs. _​_____________ V.V.S. RAO,J _______________ B.N. RAO NALLA, J 28-01-2010 Stp