0RDER 39 RULE 1 & 2 - PARTITION SUIT - NOT TO ALIENATE PENDING SUIT = Defendants 1, 4 and 5 who are the appellants herein filed counter, wherein they stated that pursuant to the settlement deed dated 12.09.1994, they executed a number of 6 documents and entered into various transactions. It is not in dispute that the appellant herein did not get the settlement deed dated 12.09.1994 marked. In fact, all the documents, on which the appellants herein sought to rely upon, are the documents emanated on the basis of the alleged settlement deed dated 12.09.1994. In fact, the 1st respondent herein is strongly disputing the genuineness of the said settlement deed. The learned District Judge, only after taking into consideration all the contentions advanced by both the parties and taking into consideration the non-marking of the settlement deed dated 12.09.1994 and in order to avoid further complications in the matter, granted the order of injunction in favour of the 1st respondent herein. It is a settled proposition of law that the relief of injunction is a discretionary and equitable relief. A perusal of the order passed by the trial Court shows that the learned I Additional District Judge has assigned cogent and convincing reasons in the impugned order. 9. Having regard to the apprehension expressed by the learned senior counsel, Sri P.Veera Reddy, that the 1st respondent-plaintiff is taking steps to get the revenue records mutated taking advantage of the injunction orders, this Court is inclined to modify the injunction order as an order of status quo in all respects with regard to the subject property.

AP HIGH COURT

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

 Shamshunnisa Begum

-VS-

Khamrunnisa Begum,

JUDGMENT: (per AVSS,J)

Defendants 1, 4 and 5 in O.S. No.20 of 2019 on the file of

the Court of I Additional District Judge, Kurnool, are the

appellants in the present Civil Miscellaneous Appeal, preferred

under Order XLIII Rule 1 of the Code of Civil Procedure, 1908

(C.P.C.). This appeal challenges the order dated 03.11.2020

passed by the said Court in I.A. No.166 of 2019 in O.S. No.20 of

2019. The 1st respondent herein instituted the said suit against

the appellants and respondents 2 and 3 herein for partition of

the plaint schedule property and for allotment of 1/8th share to

her and for mesne profits. Along with the suit, the 1st

respondent herein filed I.A. No.166 of 2019 under the provisions

of Order XXXIX Rules 1 and 2 C.P.C., praying the trial Court to

grant ad interim injunction to restrain the defendants or

anybody, claiming through them from creating third party

interest, like sale, mortgage, gift, relinquishment and such other

transactions in respect of petition schedule property.

Respondents 1, 4 and 5 in the interlocutory application, who are

the appellants herein resisted the said application by filing a

counter. The learned I Additional District Judge, Kurnool, by 

 2

way of an order dated 03.11.2020, allowed the injunction

application, granting ad interim injunction, restraining the

defendants from alienating the petition schedule property

pending disposal of the suit. This appeal calls in question the

said order passed by the learned I Additional District Judge,

granting ad interim injunction in favour of the 1st respondent

herein.

 2. Heard Sri P.Veera Reddy, learned senior counsel

representing Sri M.Chinnappa Reddy, learned counsel for the

appellants and Sri G.Sravan Kumar, learned counsel for the 1st

respondent, apart from perusing the material available on

record.

 3. Learned senior counsel maintains that the questioned

order is highly erroneous, contrary to law and opposed to the

very spirit and object of the provisions of Order XXXIX Rules 1

and 2 C.P.C. It is further contended that in the absence of

necessary ingredients of Order XXXIX Rules 1 and 2 C.P.C., the

leaned I Additional District Judge grossly erred in granting

equitable relief of injunction. It is further submitted that in view

of the family arrangement dated 11.09.1994 entered into among

the family members, the very suit instituted by the 1st

respondent herein is not maintainable. It is further contended

by the learned counsel that though the respondents-defendants 

 3

produced voluminous evidence, in support of their possession

and the transactions entered into subsequent to the family

settlement, the learned I Additional District Judge failed to take

the same into consideration. It is further contended that the

main suit is barred by limitation and the interest of the 1st

respondent, if any, is well protected by Section 52 of the

Transfer of Property Act, 1882. Learned senior counsel further

submits that taking advantage of the injunction granted by the

learned trial Court, the 1st respondent-plaintiff is actively

contemplating to approach the revenue authorities to get the

entries changed in the revenue records and if the same is

permitted, the appellants herein and their successors will have

to suffer irreparable loss and hardship. It is also submitted by

the learned senior counsel that for having slept over the matter

from 1994, the 1st respondent herein instituted the suit in the

year 2019 and there are no bona fides on the part of the

plaintiff.

 4. On the contrary, it is contended by Sri G.Sravan

Kumar, learned counsel for the 1st respondent that there is

absolutely no infirmity nor there exists any error in the order

passed by the learned District Judge and in the absence of the

same, the discretionary relief granted by the learned Judge is

not amenable for any interference under Order XLIII Rule 1 

 4

C.P.C. It is further contended by the learned counsel that since

all the issues raised by the appellants herein were thoroughly

answered by the learned District Judge in the impugned order,

the present appeal is liable to be dismissed. It is further

submitted by the learned counsel that in order to avoid

multiplicity of litigation, learned District Judge granted

discretionary relief of injunction, as such, the same does not

warrant any interference of this Court.

 5. In the above background, now the issue that falls for

consideration of this Court in the present Civil Miscellaneous

Appeal is “Whether the order passed by the learned District

Judge is sustainable and tenable and whether the same

warrants any interference of this Court?”

 6. Appellants and the respondents herein are the

children of late Sri Mohammad Ghouse and late Smt. S.Ghousia

Bee of Kurnool town, appellant No.1 and respondents 1 to 3 are

their daughters and appellants 2 and 3 are the sons of Sri

Mohammad Ghouse and Smt. S.Ghousia Bee.

 7. The information available on record discloses, in clear

and vivid terms, that there is absolutely no controversy with

regard to the reality that Smt. Ghousia Bee owned the subject

property. Smt. Ghousia Bee died intestate on 26.01.1990, 

 5

leaving behind her husband and the parties to the present

litigation. Sri Mohammad Ghouse also passed away on

06.06.1996. According to the learned counsel for the 1st

respondent-plaintiff, appellants 2 and 3 used to apportion total

income derived from all the properties to all the shares including

the plaintiff upto the end of 2017 and they dodged to give her

share of income at the end of 2018 and when she insisted for a

share in the income, the defendants 4 and 5 who are the

appellants 2 and 3 herein postponed the same on some pretext

or the other. The plaintiff also pleaded that in the last week of

March, 2019, appellants 2 and 3 herein approached her for her

signature on some papers to apply for family members certificate

in favour of their mother to sell the property and for such course

of action, the plaintiff refused and demanded her 1/8th share in

the property. It is her further case that since the appellants 2

and 3 refused to partition the property, she instituted the

instant suit. As stated supra, along with the main suit, the 1st

respondent herein filed the instant application under Order

XXXIX Rules 1 and 2 C.P.C. to restrain the defendants from

alienating the properties.

 8. Defendants 1, 4 and 5 who are the appellants herein

filed counter, wherein they stated that pursuant to the

settlement deed dated 12.09.1994, they executed a number of 

 6

documents and entered into various transactions. It is not in

dispute that the appellant herein did not get the settlement deed

dated 12.09.1994 marked. In fact, all the documents, on which

the appellants herein sought to rely upon, are the documents

emanated on the basis of the alleged settlement deed dated

12.09.1994. In fact, the 1st respondent herein is strongly

disputing the genuineness of the said settlement deed. The

learned District Judge, only after taking into consideration all

the contentions advanced by both the parties and taking into

consideration the non-marking of the settlement deed dated

12.09.1994 and in order to avoid further complications in the

matter, granted the order of injunction in favour of the 1st

respondent herein. It is a settled proposition of law that the

relief of injunction is a discretionary and equitable relief. A

perusal of the order passed by the trial Court shows that the

learned I Additional District Judge has assigned cogent and

convincing reasons in the impugned order.

 9. Having regard to the apprehension expressed by the

learned senior counsel, Sri P.Veera Reddy, that the 1st

respondent-plaintiff is taking steps to get the revenue records

mutated taking advantage of the injunction orders, this Court is

inclined to modify the injunction order as an order of status quo

in all respects with regard to the subject property. It is also 

 7

made clear that the Original Suit shall be disposed of without

being influenced by any of the observations made by the learned

I Additional District Judge in the impugned order or by this

Court in the present order.

 10. With the above modification, this appeal is disposed

of. There shall no order as to costs of this appeal.

Miscellaneous Petitions pending, if any, in this case shall

stand closed.

 __________________________

 JUSTICE A.V.SESHA SAI

 ________________________

 JUSTICE J. UMA DEVI

25.03.2021

siva 

 8

THE HON’BLE SRI JUSTICE A.V.SESHA SAI

AND

THE HON’BLE MS. JUSTICE J.UMA DEVI

CIVIL MISCELLANEOUS APPEAL No.235 OF 2020

Date: 25.03.2021

siva