Allowed

Pulipati Narasimha Rao v. Pulipati Prasad

Telangana HC11 Jun 2014CMA/343/2014

Case brief

AI extract

What is this about?

The Court allowed the Civil Miscellaneous Appeal, setting aside the dismissal of an injunction prayer in a partition suit. A direction was granted restraining the first respondent from alienating specific schedule properties (excluding items 10-12, 22, 23, 25, 26) to protect the third-party interest of the petitioners, while preserving the right to lease the commercial complex. No order as to cost

What did the court decide?

The impugned order was set aside. A direction was passed restraining the first respondent from alienating schedule properties except items 10 to 12, 22, 23, 25 and 26, while allowing leasing of the co

Pulipati Narasimha Rao Vs Pulipati Prasad — Partition | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C. BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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CIVIL MISCELLANEOUS APPEAL No.343 of 2014

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ORDER:- (per Hon’ble Sri Justice K.C. Bhanu)

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This Civil Miscellaneous Appeal is filed against the order dated 25-11-2013 passed in I.A.No.79 of 2013 in O.S.No.70 of 2013 on the file of the Special Sessions Judge for trial of cases under SCs and STs (PoA) Act, 1989-cum-Additional District Judge at Khammam.

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2. The petitioners herein filed I.A.No.79 of 2013 with a prayer to grant ad interim injunction restraining the respondents herein from alienating the property, pending disposal of the suit. The said I.A. was dismissed. Challenging the same, the present Civil Miscellaneous Appeal is filed.

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3. The suit is filed for partition and separate possession of the property mentioned in the schedule. Father and his two daughters filed the suit against son and daughter-in-law. According to the petitioners, they have got 1/4^th share in the schedule properties mentioned in the plaint. The trial Court after considering the material on record came to the conclusion that the properties appear to be joint family properties and they have not been divided between the father and son and it is also observed that some of the properties were purchased with the joint funds and some of the

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properties have been purchased individually. It is also observed that there was no document to show that there was a partition took place between the father and son at any point of time.

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4. Grant or refusal of injunction is guided by three wellestablished principles 1) prima facie case, 2) balance of convenience and 3) irreparable loss that would be caused if the injunction is not granted.

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5. Considering the question of prima facie, the learned Judge came to the conclusion that some of the properties are joint family properties and there was no prior partition. Such is the case, prima facie, the petitioners are entitled for share in the joint family properties. Coming to the balance of convenience, it is specifically pleaded that for the purpose of consideration for item Nos.1 and 2, the first respondent borrowed certain amounts from the A.P. State Finance Corporation and at present there is an outstanding amount of Rs.1,10,19,092/- payable to the corporation. If there is any direction not to alienate the schedule items Nos.10 to 12, he would not be in a position to repay the loan. If he is unable to pay the loan the corporation may invoke Section 29 of the State Finance Corporation Act. It is also stated that item Nos.22, 23, 25 and 26 stand in the name of the second respondent who is no other than the wife of the first respondent. Therefore, there is no need to pass any order not to alienate in respect of item Nos.22, 23, 25 and 26.

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6. The suit is valued at Rs.23,73,62,548/-. The petitioners are claiming 3/4^th share. If the order of not to alienate certain schedule properties is not granted, there is every likelihood of alienation,

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thereby the third party interest would be created. In order to avoid multiplicity of proceedings and if the order of not to alienate is granted it would not cause any hardship or inconvenience to the respondents, it is a fit case where the interim order as prayed can be granted in respect of suit schedule properties except item Nos.10 to 12, 22, 23, 25 and 26.

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7. Therefore, in view of the above the impugned order is set aside with a direction to the first respondent not to alienate the any of the schedule mentioned properties except item Nos.10 to 12, 22, 23, 25 and 26. However, this order will not preclude the first respondent in leasing out the commercial complex in item Nos.1 and 2.

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8. Accordingly, the Civil Miscellaneous Appeal is allowed to the extent indicated above. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Civil Miscellaneous Appeal shall stand closed.

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______________________ JUSTICE K.C. BHANU

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_______________ JUSTICE ANIS

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June 11, 2014

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THE HON'BLE SRI JUSTICE K.C. BHANU

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AND

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THE HON’BLE MRS JUSTICE ANIS

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CIVIL MISCELLANEOUS APPEAL No.343 of 2014

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June 11, 2014

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Pulipati Narasimha Rao v. Pulipati Prasad

Case brief

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Pulipati Narasimha Rao v. Pulipati Prasad

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