THE HONOURABLE SRI JUSTICE D.S.R.VARMA AND THE HONOURABLE SRI B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL No.142 of 2010 JUDGMENT: (Per the Hon’ble Sri Justice B.Chandra Kumar) This appeal is directed against the order, dated 24.10.2009, in I.A.No.1924 of 2009 in O.S.No.442 of 2009 passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad. The brief facts of the case are as follows: - The appellant herein filed the suit for partition and separate possession of the suit schedule property in O.S.No.442 of 2009 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, against the sole respondent herein. Pending disposal of the suit, he filed I.A.No.1924 of 2009 seeking ad-interim injunction restraining the respondent from alienating the suit schedule property to third parties. The specific case of the appellant is that his father- B.Rajaiah purchased Plot No.10 admeasuring 200 square yards from Gangaputra Housing Co-Operative Society in the year 1981 and constructed a house consisting of six rooms and two shops i.e., the plaint schedule house with his own earnings and that his father died leaving behind him, the appellant and the respondent as his legal heirs. The further case of the appellant is that after the death of his father, he demanded for partition of the suit schedule property into two equal shares and the respondent has been postponing the same with ulterior motive. It is further alleged that the respondent has been collecting rents to a tune of Rs.6,000/- per month from the tenants for the suit schedule house since December 2007, but depriving the appellant of his share from the said rental income. Alleging that the respondent has been trying to alienate the property, he filed the suit for partition and sought ad-interim injunction as referred above. The respondent filed counter-affidavit, inter alia, contending that the suit schedule plot was purchased by his father from Gangaputra Housing Co-Operative Society and thereafter, he gave financial assistance to his father and got the suit schedule house constructed. It is also averred that when the appellant was harassing their father, in the year 1984 their father filed a suit in O.S.No.2859 of 1998 on the file of the II Junior Civil Judge, City Civil Court, Hyderabad, for perpetual injunction against the appellant and another and that the said suit was decreed, on contest, on 09.07.2001, with costs. The further case of the respondent is that though the appellant challenged the said judgment in A.S.No.389 of 2001, the said appeal was dismissed on 21.10.2002. The further case of the respondent is that his father bequeathed the suit schedule house in his favour by virtue of a registered will deed, dated 02.09.1992. The learned II Additional Chief Judge, City Civil Court, Hyderabad, having considered the averments of the appellant and the respondent and the documents filed in support of the appellant’s case, came to the conclusion that the appellant is guilty of suppression of facts and therefore, he is not entitled for the relief of ad-interim injunction and that no irreparable loss would be caused to him even if the injunction order is not granted and that in view of the principle of lis pendence, even if any alienations are made by the respondent, they will be subject to the result of the suit. It is also observed that there is a prima facie case in favour of the respondent. Learned counsel for the appellant-Sri T.K.Raghunath, submitted that the observations of the Court below that under the registered will deed, dated 02.09.1992, after the death of the father of the appellant and the respondent, the respondent became absolute owner and possessor of the suit schedule property and that he is in possession of the property would cause prejudice to the appellant. It is also submitted that in case, if the respondent alienates the suit schedule property, the very purpose of filing of the suit for partition would be defeated. Learned counsel for the respondent supported the impugned order and submits that the appellant is guilty of suppression of the facts. The points that arise for consideration are - (1) Whether the appellant is entitled for ad-interim injunction order restraining the respondent from alienating the suit schedule property to third parties till the disposal of the suit and (2) Whether the appellant is guilty of suppression of material facts and therefore, he is not entitled for the ad-interim injunction order as prayed for. We have gone through the record and the impugned order. It is not in dispute that the father of the appellant had purchased the suit schedule plot from Gangaputra Housing Co- Operative Society in the year 1981 and subsequently, constructed the suit schedule house. Whether the said house was constructed with his own earnings or with the financial assistance of the respondent cannot be decided in this order. However, the contention of the respondent that his father filed O.S.No.2859 of 1998 on the file of the II Junior Civil Judge, City Civil Court, Hyderabad, for perpetual injunction against the appellant and that the said suit had been decreed, on contest, on 09.07.2001, with costs and that the appeal preferred by the appellant against the said judgment in A.S.No.389 of 2001 has been dismissed on 21.10.2002, has not been disputed by the appellant. Admittedly, the appellant did not whisper about the suit filed by his father in O.S.No.2859 of 1998 and the appeal that arose out of the judgment of the said suit in his pleadings in these proceedings and therefore, the finding of the Court below that the appellant is guilty of suppression of facts appears to be based on record. Since it appears that the appellant is guilty of suppression of facts as referred above, we are of the view that the findings of the Court below need not be disturbed. As far as the observations made by the Court below on certain aspects excepting with regard to the will said to have been registered by the father of the appellant and respondent, are concerned, the said observations being prima facie observations made while disposing of interlocutory application cannot have any bearing on the final disposal of the suit. Therefore, there is no need to discuss about the observations said to have been made by the Court below. More over, the interest of the appellant seems to have been protected by the orders passed by this Court on 29.03.2010 in C.M.A.M.P.No.370 of 2010, which is as follows: - “Needless to mention that the apprehension of the appellant-appellant that if the suit schedule property is alienated to third parties, great hardship would be caused to him is unfounded, inasmuch as any such alienation would be hit by the principle of “lis pendence.” In view of the above discussion, we are of the view that the appeal is devoid of merits and is liable to be dismissed. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ______________________ JUSTICE D.S.R.VARMA ____________________________ JUSTICE B.CHANDRA KUMAR 12th April 2010 dr