JUDGMENT :

M.S.Ramachandra Rao, J.

This Civil Miscellaneous Appeal is preferred against the order dt.22.02.2021 passed by the VII Additional District Judge at Warangal in I.A.No.422 of 2018 in O.S.No.184 of 2018.

2. The appellant herein is defendant No.10 in the suit.

3. The 1st respondent herein/plaintiff filed the said suit for partition and separate possession of the suit schedule properties and for allotment of 1/3rd share to him and to declare that certain sale deeds and gift settlement deeds mentioned in the prayer in the plaint be treated as null and void and not binding on him.

4. The plaintiff, one Rajeshwar Rao, Hemalatha, Swamy and Sri Kishan are the children of Sri Laxman Rao @ Kakaji and his wife Smt. Laxmibai.

5. Kakaji had died in 1964 and his wife Laxmibai died on 25.09.2000 intestate.

6. Swamy died on 08.10.2010 unmarried and even Rajeshwar Rao died in 2016 unmarried. Defendant No.1, Smt. Sandhya, Dr. Ravinder, Smt. Udaya and Smt. Sudha are the children of Sri Kishan and his wife Laxmi Narsu Bai.

7. It is not in dispute that Sri Kakaji purchased the suit schedule properties in the name of his wife Laxmibai under a registered sale deed dated 1st Bahaman 1353 Fasli. After the death of Kakaji in 1964, O.S.No.24 of 1968 was filed for partition and separate possession before the Subordinate Judge at Warangal by the 1st respondent against his brothers and mother. Thereafter, the suit ended in a compromise on 24.04.1968 and a compromise decree Ex.P4 was passed.

8. Though respondents 2 and 3 contended that Laxmibai during her life time executed a Will dt.25.10.1990 and a Codicil dt.26.05.1994, the originals of the said Will and Codicil were not filed in the Court and the appellant herein filed photo copies of the said two documents. The Court below did not receive them as secondary evidence under Section 63 of the Evidence Act by passing a detailed order and the said order was not challenged by respondents 2, 3 and the appellant.

9. On the death of Laxmibai on 25.09.2000, under Section 16 of the Hindu Succession Act, the property would devolve on all her Class-I legal heirs.

10. However, it appears that Swamy, claiming that he owned the property had executed a gift settlement deed Ex.P3 dt.25.04.2003 gifting the plaint A schedule property in favour of the 1st defendant and her husband the 2nd defendant/respondents 2 and 3 as if it was owned by him exclusively as per the decree Ex.P4 passed in O.S.No.24 of 1968.

11. Subsequently, under Ex.P2 sale deed dt.26.06.2018, respondents 2 and 3 sold 1000 square yards in favour of the appellant/defendant no.10 in the plaint A schedule property. Thereafter, subsequent documents Ex.R9 to R13 and R18 to R21 also came to be executed.

12. The 1st respondent/plaintiff challenged in the suit the right of Swamy to execute the gift settlement deed Ex.P3 dt.25.04.2003 in favour of the 2nd respondent and her husband the 3rd respondent and contended that under Ex.P4 decree in O.S.No.24 of 1968, the said property did not fall to the share of Swamy and so he could not have executed the said document in favour of respondents 2 and 3 in regard to Item no. A of the suit schedule property.

13. We are not concerned with the other items of suit schedule properties in this CMA.

I.A.No.422 of 2018

14. Respondent No.1 filed I.A.No.422 of 2018 under Order XXXIX Rules 1 and 2 CPC to grant an ad interim injunction restraining respondents 2, 3 and the appellant from changing the physical features/existing features by converting the open site in any manner for construction/development by way of a commercial and residential complex in item No.A of the suit schedule property till the disposal of the suit on the basis of the above contentions.

The stand of 2nd respondent

15. The 2nd respondent/1st defendant filed a counter denying the plaint allegations and stating that Swamy had executed a registered gift settlement Ex.P3 dt.25.04.2003 under which the Item No. A of schedule property was gifted to her and her husband, the 3rd