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ANDHRA PRADESH HIGH COURT
K.C. Bhanu and Zmrs. Anis, JJ.
C. Anitha @ Anitha and Ors. —Appellants
versus
M/s. Narne Constructions Pvt. Ltd.
and Ors. —Respondents
C.M.A. No. 618 of 2014
Decided on 24-09-2014
Facts of the case
Where partition suit filed along with application under order 39 Rules 1 and 2 and the trial court granted Status quo by ex parte order-The Defendants filed application under rule 4 on which the exparte order was set aside against which appeal was filed by the plaintiff. The plaintiff, alleged that they had 1/18 share each in the joint family property according to section 29A of AP Amendment Act 1986 and that alienation of part of the property by some of the coparceners was not binding on their right. It was however contended by the defendants/respondents that as per proviso to Section 6 (1) of 2005 Act, any alienation made prior to 20th December 2004 shall not affect and since the property was sold in the year 1996, the plaintiff had no right to seek partition of the said property.
Finding of the Court
Under Section 29A added by Andhra Pradesh legislature in 1986, the daughters shall by birth become a coparcener in joint Hindu Family governed by Mitakshara Law and in the event of partition, she shall be allotted the same share as that of son. Therefore, the plea of the respondents on the basis of proviso to Section 6(1) of 2005 Act, rejected and held that in view of Section 29A, the plaintiff had 1/18 share each in the joint family property and balance of convenience was also in their favour. Therefore, the status quo order earlier granted by the trial court restored and the court directed to dispose of the same afresh.
Result: Appeal allowed.
Smt. Justice Anis, J.—This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short C.P.C.), is directed against the order, dated 01.05.2014 passed in I.A.No.419 of 2014 in I.A.No.113 of 2014 in O.S.No.64 of 2014 on the file of the II Additional District Judge, Ranga Reddy District at L.B. Nagar.
2. Appellants were arrayed as the respondents 1 to 3, while the respondent No.1 as the petitioner and respondents 2 to 8 as the respondents 4 to 10 in I.A.No.419 of 2014 before the trial Court.
3. For the sake of convenience, the parties are referred to as arrayed in I.A.No.419 of 2014 before the trial Court.
4. The petitioner filed the petition under Order XXXIX Rule 4 C.P.C. to vacate the interim order of status quo granted on 28.01.2014 in I.A.No.113 of 2014 in O.S.No.64 of 2014 pending finalization of the injunction application.
5. The brief averments made in the petition filed before the trial Court are as follows:
The petitioner/defendant No.8 is the Director of 8th defendant company. The respondents 1 to 3/plaintiffs have no right to file the suit and they have no joint possession over the plaint schedule properties. The claim made by the respondents 1 to 3/plaintiffs for partition is barred by limitation and therefore, the suit as well I.A.No.113 of 2014 filed by them, are to be dismissed.
It is further stated that one Eshwaraiah and Anjaiah are brothers. The sons of the said Eshwaraiah and Anjaiah being joint owners of the properties, executed two registered Sale deeds in favour of M/s.Malini Co-operative Housing Society Limited vide Document No.9309 of 1996, dated 04.03.1996 for an extent of Ac.7.14 guntas in Survey No.43 and another Sale deed in favour of M/s. Wincon Housing Private Limited represented by K. Madhava Reddy vide Document No.9311 of 1996, dated 04.03.1996 for an extent of Ac.4.24 guntas in Survey No.44 of Madinaguda village and since then, those two vendors were in possession and enjoyment of the property total admeasuring Ac.11.38 guntas and in turn, the above said purchasers sold the property to M/s. Narne Constructions Private Limited represented by the petitioner/8th defendant under an agreement of sale-cum- GPA, dated 19.09.2003 and 16.09.2003 respectively and delivered possession of the property and ever since, they are in possession and enjoyment of the property. the vendors of the petitioner/8th defendant are in possession of the schedule property from 1996 onwards and filing of the suit by respondents 1 to 3/plaintiffs after expiry of 18 years is hopelessly barred by limitation and the plaintiffs by suppressing the alienation of the property in favour of the petitioner/8th defendant by the vendors of the respondents 4 to 10/defendants 1 to 7, filed the suit with false allegations and after purchase of the property, they got registered the same by keeping the documents for pending registration and subsequently, stamp duty was paid and registration was effected.
It is further stated that the respondents 1 to 3/plaintiffs or respondents 4 to 10/defendants 1 to 7 had no possession over the plaint schedule property from 1996 onwards and therefore, the petitioner/8th defendant after purchasing the property, divided the land into plots, applied for permission for layout and part of the property was sold for house sites, as such the question of altering the physical features of the property does not arise. Further, the petitioner/8th defendant has obtained two electrical connections for the bore wells dug in the property, electrical charges are also being paid, the roads were black topped long back and also executed gift settlement deed in favour of Municipality for the common site, which is occupied by roads, and therefore, the respondents 1 to 3/plaintiffs though not having any right over the property, simply filed the suit for partition and the application of temporary injunction so as to harass the petitioner/ 8th defendant. Further, the Court fee
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