Dismissed

Kunduru Rakesh Reddy v. Kunduru Narasimha Reddy

Telangana HC3 Nov 2009CMA/1020/2009

Case brief

AI extract

What is this about?

This court dismissed an appeal against an order allowing respondents to alienate suit properties under a temporary injunction, imposing conditions to protect the plaintiff's potential share. The court found no flaw in the trial court's exercise of powers.

What did the court decide?

The civil miscellaneous appeal was dismissed; the trial court was directed to dispose of the suit within three months.

Kunduru Rakesh Reddy Vs Kunduru Narasimha Reddy — Partition | Telangana HC (2009)

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IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND NINE

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PRESENT:

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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CIVIL MISCELLANEOUS APPEAL No.1020 of 2009

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BETWEEN:

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Kunduru Rakesh Reddy, S/o.Matta reddy aged 25 years, Occ:Pvt.Employee R/o.Plot No.20, Sri Sai Teja Lokeshwari Apartments, Habsiguda, Hyderabad

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…Appellant/Plaintiff

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AND

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Kunduru Narasimha Reddy, S/o.Matta Reddy, aged 80 years Occ:Agriculture R/o. Vidyanagar Locality, Miryalguda Town, Nalgonda Dist. And another.

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…Respondents/Defendants

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THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

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CIVILMISCELLANEOUS APPEAL No.1020 of 2009

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ORDER:

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This Civil Miscellaneous Appeal is directed against the order dated 18.09.2009 passed in I.A.No.664 of 2009 in O.S.No.173 of 2009 on the file of the Court of the Senior Civil Judge at Miryalaguda, Nalgonda District, whereby and whereunder, the learned Senior Civil Judge partly allowed the application filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of Civil Procedure Code, 1908 (CPC). The facts of the case in brief, leading to file the Civil Miscellaneous Appeal by the plaintiff in O.S.No.173 of 2009 are:-

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The appellant filed a suit against respondents 1 and 2 for partition and separate possession of his share in the suit schedule property, which comprises of three items. He also moved I.A.No.664 of 2009 under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code (CPC) seeking temporary injunction restraining the respondents/defendants from alienating the suit schedule properties. The first defendant filed counter affidavit resisting the application of the respondents/defendants contending that the properties are his selfacquired properties, and that neither the plaintiff nor the first defendant has any right over the said properties. Neither party adduced either ocular or documentary evidence in support of their respective contentions.

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Learned Senior Civil Judge at Miryalaguda, Nalgonda District, on hearing learned counsel appearing for the parties and on considering the material brought on record, proceeded to allow the petition partly by the

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order dated 18.09.2009. The relevant portion of the order reads as under.

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…In the result, this petition is partly allowed. The respondents No.1 and 2 are permitted to alienate the petition schedule properties. But they shall incorporate in the documents of alienation about the pendency of the suit O.S.No.173/2009 in this Court and appraise the alienees that the alienation is subject to the result of this suit O.S.No.173 of 2009. In the event of O.S.No.173 of 2009 for partition is decreed in favour of the petitioner, the alienees shall deliver the possession of the petition schedule properties to the extent of the share of the petitioner, which is allotted to him by this Court in O.S.No.173 of 2009. Subject to the condition, the respondents are permitted to alienate the petition schedule properties. Each party shall bear their own costs.

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Dissatisfied by the relief granted in the Interlocutory Application No.664 of 2009, the plaintiff has filed this Civil Miscellaneous Appeal.

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An interim order came to be passed on 17.10.2009 by C.M.A.M.P.No.1854 of 2009 by this Court. The first respondent entered appearance and filed C.M.A.M.P.No.2014 of 2009 with a prayer to vacate the interim order dated 07.10.2009 passed in C.M.A.M.P.No.1854 of 2009. When the vacate stay petition came up for consideration, with the consent of the learned counsel appearing for both the parties, the Civil Miscellaneous Appeal itself is taken up for final disposal.

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Heard learned counsel appearing for the appellant and learned counsel appearing for the first respondent. Learned counsel appearing for the appellant submits that if the first respondent is not restrained from alienating the suit properties, there is every possibility of the first respondent alienating the entire suit properties and in which case, even if the petitioner/plaintiff succeeds in this suit, he may not be in possession to realise the fruits of the decree.

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A further submission has been made that the suit schedule properties are the ancestral properties and therefore, the petitioner/plaintiff has half share therein. Per contra, learned counsel appearing for the respondent submits that the petitioner has been set up

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for second respondent, who is none other than his father to deprive the first respondent to enjoy his properties. A further submission has been made that the suit schedule properties are his self-acquired properties and therefore, neither the petitioner/plaintiff nor the second respondent/second defendant has any right over the same. Though the petitioner/plaintiff contended that the suit schedule properties are the acquisitions out of the sale of the joint family properties, no evidence has been placed on record to substantiate the same. Indeed, the trial Court noted this and observed as hereunder.

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…Though the petitioner contends that the properties are purchased in the name of the respondent No.1 out of the sale proceeds of their joint coparcenery properties, absolutely there is no iota of documentary evidence in support of it.

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The observation made by the trial Court in the given facts and circumstances is justified and does not warrant any interference by this Court in exercise of powers under Order 43 Rule 1 of Civil Procedure Code. The trial Court has taken sufficient care in protecting the interest of the petitioner in passing the impugned order. I do not see any flaw in the order passed by the trial Court.

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In the result, the Civil Miscellaneous Appeal is accordingly dismissed. However, the trial Court is directed to dispose of the suit as expeditiously as possible, preferably within a period of three (03) months from the date of receipt of a copy of this order. There shall be no order as to costs.

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___________________________ (JUSTICE B.SESHASAYANA REDDY)

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November 03, 2009 Bvv

Kunduru Rakesh Reddy v. Kunduru Narasimha Reddy

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Kunduru Rakesh Reddy v. Kunduru Narasimha Reddy

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