Andhra HC (Pre-Telangana)
C.Anitha @ Anitha And Two Others vs M/S.Narne Constructions Pvt. Ltd. And ... on 24 September, 2014
Bench: K.C.Bhanu, Anis
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL NO. 618 OF 2014
24-09-2014
C.Anitha @ Anitha and two others.Appellants
M/s.Narne Constructions Pvt. Ltd. and seven others. Respondents
Counsel for the Appellants : Sri B.Srinivasulu
Counsel for the Respondents: Sri K.R.Koteswara Rao for
respondent No.1
Sri K.Harish Kumar for
respondent No.6
<Gist :
>Head Note:
? Cases referred:
1.2002(6) ALD 415 (DB)
2.2012(1) ALD 92 (SC)
THE HONBLE SRI JUSTICE K.C.BHANU
AND
THE HONBLE SMT. JUSTICE ANIS
CIVIL MISCELLANEOUS APPEAL NO. 618 OF 2014
JUDGMENT:(Per the Honble Smt. Justice Anis)
1. 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 paid by the respondents 1 to 3/plaintiffs is not in accordance with law and if at all they wanted to file the suit, they have to pay Court Fee on 3/4th of the market value of the property, but not fixed Court Fee without any joint possession. Further, by virtue of amendment of Hindu Succession Act in the year 2005 and as per the proviso to amended Section 6 of the said Act, it is categorically stated that no female Hindu can raise her claim in respect of coparcenary properties in the event of alienation of the properties prior to 20.12.2004 and in the present case, all the shares have been sold way back in the year 1996 i.e. much prior to the said date, and therefore, the respondents 1 to 3/plaintiffs are not entitled for any relief of partition and separate possession of the suit schedule properties.
Moreover, taking advantage of the status quo order granted on 28.01.2014, the respondents 1 to 3/plaintiffs are hoping to create hurdles to the petitioner/8th defendant over the suit schedule properties and even causing an affect on the Sale deeds to be executed to other purchasers in pursuance of Agreement of Sales entered earlier, as a result the petitioner/8th defendant company and its members are facing serious hardship and inconvenience due to the ex parte order of status quo granted. Therefore, prayed the Court to vacate the interim order of status quo granted on 28.01.2014 in I.A.No.113 of 2014 in O.S.64 of 2014 forthwith pending finalization of the injunction application.
6. The brief averments made in the Counter filed by the respondents 1 to 3/plaintiffs before the trial Court are as follows:
The affidavit filed by the petitioner/8th defendant is not in accordance with law and they are not aware of the selling of property under registered Sale deeds in favour of M/s.Malini Co-operative Housing Society Limited and M/s.Wincon Housing Private Limited and in turn, in favour of petitioner/8th defendant by them. Further, the properties are originally belonged to their father Eshwaraiah and his brother Anjaiah and they have not partitioned the properties, and therefore, after the death of their father Eshwaraiah, they succeeded to his estate and filed the suit for partition. The petitioner/8th defendant has no right over the property and the petitioner/8th defendant has no physical possession of the property. Therefore, the interim order passed by the Court earlier in I.A.No.113 of 2014 is to be continued till further orders to protect the property. Further, the respondents 1 to 3/plaintiffs are the lawful owners of the property having joint possession along with the other respondents/defendants and the petitioner/8th defendant, who is claiming the property under the registered agreement of sale/GPA, cannot prosecute the suit. Therefore, prayed the Court to dismiss the vacate stay petition filed by the petitioner/8th defendant.
7. In order to substantiate their case, Exs.A.1 to A.8 are marked on behalf of the petitioner/8th defendant and Exs.B.1 to B.21 were marked on behalf of the respondents 1 to 3/plaintiffs before the trial Court.
8. Basing on the above pleadings, the Tribunal framed a point that whether the status quo order passed by this Court on 28.01.2014 in I.A.No.113/2014 against the defendant No.8 is liable to be vacated or modified?.
9. After considering the documentary evidence and upon hearing the learned counsel for petitioner/8th defendant and respondents 1 to 3/plaintiffs, the trial Court passed the following order:
In the result, the petition is allowed vacating the status quo order passed on 28-01-2014 in I.A.No.113/2014. Consequently, the petition in I.A.No.113/2014 dismissed against all the respondents therein. The parties have to bear their own costs.
10. Aggrieved by the order of the trial Court, the respondents 1 to 3/plaintiffs preferred the present Civil Miscellaneous Appeal.
11. After serving notice in the Civil Miscellaneous Appeal, respondents 6 and 7/defendants 5 and 6 filed Counter affidavit stating that C.Eshwaraiah along with his brother C.Anjaiah, purchased the property agricultural land of Ac.3.06 gts in Survey No.42, Ac.7.14 gts. in Survey No.43 and Ac.4.24 gts. in Survey No.44 total admeasuring Ac.15.04 gts. situated at Madinaguda Village, Serilingampally Mandal, Ranga Reddy District through a registered Sale deed vide Document No.320 of 1979, dated 18.10.1979. Since then, the said property was not partitioned in between the said C.Eshwaraiah and C.Anjaiah or in between their legal heirs and successors after their death. It is further stated that the appellants/plaintiffs and the respondents 2 to 8/defendants 1 to 7 are the legal heirs and successors of late C.Eshwaraiah and C.Anjaiah and that the suit properties are not partitioned by metes and bounds and they are in joint possession.
It is further stated that the appellants/plaintiffs filed a suit in O.S.No.64 of 2014 against the respondents 2 to 8/defendants 1 to 7 for partition and separate possession in respect of the suit schedule properties, viz., Ac.7.14 gts. in Survey No.43 (part) and Ac.4.24 gts. in Survey No.44 total admeasuring Ac.11.38 gts. These respondents came to know after filing of the said suit about the fraudulent documents created by the 1st respondent/8th defendant along with late C.Anjaiah through Sale deed vide Document No.9309 of 1996, dated 04.03.1996 in respect of Survey No.43 admeasuring Ac.7.14 gts. and another Sale deed vide Document No.9311 of 1996, dated 04.03.1996 admeasuring Ac.4.24 gts. and thereafter, the said late C.Anjaiah in active collusion with M/s.Narne Constructions Private Limited i.e. 1st respondent/8th defendant, applied for Layout Permit No.8078/MP2/H/95, dated 10.02.1998. These respondents have challenged the said layout permit in W.P.No.11693 of 2013 seeking cancellation of the same as it was obtained by suppressing the facts and the said Writ Petition is pending for adjudication. The 1st respondent/8th defendant under the guise of the said layout, are making efforts to change the physical features of the suit property and trying to alienate the suit property to some third parties and innocent purchasers with a sole malafide intention to defeat and deprive the legitimate share of these respondents.
It is further stated that the copies of the petition, affidavit along with documents filed in I.A.No.419 of 2014 are not served upon these respondents nor any opportunity was given by the trial Court to put their grievance in respect of their undivided shares etc. and even at the time of arguments, no opportunity was given to these respondents to ventilate their contentions for proper adjudication of the case. The trial Court, in a hurry manner, passed the order under appeal and the if the 1st respondent/8th defendant changed the nature of the suit property under the guise of the said order, it will directly affect the legitimate shares of these respondents besides the appellants/plaintiffs.
It is further stated that in order to avoid multiplicity of proceedings, these respondents have not preferred appeal against the impugned order. Therefore, prayed the Court set aside the impugned order in the interest of justice and equity.
12. The learned counsel for the appellants/plaintiffs argued that the appellants/plaintiffs are the daughters of late C.Eshwaraiah, whereas the respondents 2 to 7/defendants 1 to 6 are the sons; that late C.Eshwaraiah and his brother C.Anjaiah during their lifetime jointly purchased agriculture lands in Survey Nos.42, 43 and 44 admeasuring Ac.15.04 gts. under registered Document No.320 of 1979, dated 18.10.1979 and since then, they were in possession of the property and they had not partitioned the said property during their lifetime; that after the death of C.Eshwaraiah, the respondents 2 to 5/defendants 1 to 4, who were managing the properties, sold Ac.7.14 gts. in Survey No.43 and Ac.4.24 gts. in Survey No.44 total admeasuring Ac.11.38 gts. in favour of M/s.Malini Co-operative Housing Society Limited and M/s.Wincon Housing Private Limited respectively under two registered Sale deeds in the year 1996 without their knowledge and consent; that when they went to the suit schedule property, they came to know about the activities of defendant No.8 and when they demanded for partition, they came to know that the respondents 2 to 5/defendants 1 to 4 and C.Anjaiah sold the property to the above firms.
It is further argued that the appellants/plaintiffs are having 1/18th share each in the suit schedule property and the suit schedule property was not partitioned after the death of their father Eshwaraiah in the year 1994. It is further argued that the suit schedule property is a joint family property and the appellants/plaintiffs along with respondents 2 to 8/defendants 1 to 7 are in joint possession of the suit schedule property and the 1st respondent/defendant No.8 without any manner of right, is making efforts to change the nature of the property and finally prayed the Court to allow the appeal by setting aside the impugned order.
13. On the other hand, the learned counsel for the respondent No.1/defendant No.8 argued that after considering the documentary evidence on record, the trial Court rightly vacated the status quo order.
It is further argued that in the year 1996, the respondents 2 to 5/defendants 1 to 4 and their paternal uncle by name C.Anjaiah together executed the Sale deed under Ex.A.1 in respect of Ac.7.14 gts. in Survey No.43 of Madinaguda village in favour of M/s.Malini Co-operative Housing Society Limited and further on the same day, they have sold an extent of Ac.4.24 gts. in Survey No.44 of Madinaguda village under Ex.A.2 in favour of M/s.Wincon Housing Private Limited and since then, they were in possession of the said property; that the respondent No.1/defendant No.8 obtained agreement of sale-cum-GPA on 19.09.2003 and 16.09.2003 under Exs.A.3 and A.4 respectively from the aforesaid vendors; that since the date of purchase, the respondent No.1/defendant No.8 is in possession of the property; that the respondent No.1/defendant No.8 divided the property into house site plots and mutated his name in the pahanies for the years 2007-08, 2008-09, 2009-10, 2011-12 and 2012-13 under Ex.A.8; that as per Ex.A.8, the names of appellants/plaintiffs and respondents 2 to 8/defendants 1 to 7 are not shown and division of plots were mentioned in the pahanies, and therefore, the contention of the appellants/plaintiffs that the suit schedule property is an agriculture land, does not arise.
Further, it is vehemently argued that the suit is barred by limitation and the appellants/plaintiffs are not in joint possession, therefore they have to pay the Court Fee under Section 35 of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956, but not under Section 34(2) of the said Act.
The learned counsel finally prayed the Court to dismiss the C.M.A. by confirming the order passed in I.A.No.419 of 2014.
14. After hearing both sides, the point that arises for consideration is:
Whether the appellants/plaintiffs have made out any case to set aside the order dated 01.05.2014, passed by the trial Court in I.A.No.419 of 2014, as prayed for?
15. POINT:
As per the pleadings and the documentary evidence, it is an admitted fact that one C.Eshwaraiah and C.Anjaiah purchased the land admeasuring Ac.15.04 gts. in Survey Nos.42,43 and 44 of Madinaguda Village, Serilingampally Mandal under a registered Sale deed vide Document No.320/79, dated 18.10.1979. It is also an admitted fact that C.Eshwaraiah was having six sons and three daughters, whereas C.Anjaiah was having one son. Admittedly, C.Eshwaraiah died intestate in the year 1994 and suit schedule properties were not partitioned after his death. As per Exs.A.1 and A.2, it is evident that in the year 1996, the defendants 1 to 4 and C.Anjaiah sold the land admeasuring Ac.7.14 gts. in Survey No.43 in favour of M/s.Malini Co-operative Housing Society Limited and another land admeasuring Ac.4.24 gts. in Survey No.44 in favour of M/s.Wincon Housing Private Limited. But, plaintiffs and defendants 5 and 6 are not parties to Exs.A.1 and A.2. Further, C.Eshwaraiah and C.Anjaiah were having equal shares in the total extent admeasuring Ac.15.04 gts. Therefore, the three daughters of C.Eshwaraiah filed the present suit against their brothers i.e. defendants 1 to 6 and also against the son of C.Anjaiah i.e. defendant No.7 for partition and separate possession of the suit schedule property.
16. The learned counsel for the appellants/plaintiffs argued that the plaintiffs are the coparceners having share in the suit schedule property and their brothers i.e. defendants 1 to 4 never informed about the alienation of land admeasuring Ac.11.38 gts. in Survey Nos.43 and 44 to M/s.Malini Co-operative Housing Society Limited and M/s.Wincon Housing Private Limited under Exs.A.1 and A.2 respectively. Further, the plaintiffs are also not aware about the subsequent purchase made by the defendant No.8 under agreement-cum-GPA and they came to know the said fact only when the defendant No.8 was making plots in the suit schedule property. On the other hand, the learned counsel for the respondent No.1/defendant No.8 argued that the sons of C.Eshwaraiah i.e. defendants 1 to 4 along with their paternal uncle i.e. C.Anjaiah sold the land admeasuring Ac.11.38 gts. in Survey Nos.43 and 44 to the vendors of the defendant No.8 and after purchase from his vendors, the defendant No.8 is the owner of the said land having possession over it and the plaintiffs were never in possession of the suit schedule property at any point of time.
17. Admittedly, C.Eshwaraiah died intestate and the plaintiffs are having a right to succeed the property left by their father. Further, the plaintiffs are not executed Exs.A.1 and A.2 after the death of C.Eshwaraiah. It is also an admitted fact that the defendants 5 and 6 are also the sons of C.Eshwaraiah and they are also not parties to Exs.A.1 and A.2 executed in favour of M/s.Malini Co-operative Housing Society Limited and M/s.Wincon Housing Private Limited.
18. The learned counsel for the respondent No.1/defendant No.8 argued that after executing Exs.A.1 and A.2 in the year 1996 and after lapse of 18 years, the plaintiffs have come forward and claiming the property though they were never in possession of the schedule property. But, the fact remains that C.Eshwaraiah died intestate leaving behind plaintiffs and defendants 1 to 6, and the suit schedule property is a joint family property of the plaintiffs and the defendants 1 to 7, in which the plaintiffs are having 1/18th share.
19. The learned counsel for the respondent No.1/defendant No.8 further argued that as per the proviso to Section 6(1) of the Hindu Succession (Amendment) Act, 2005, any disposition or alienation made before the 20th day of December, 2004 shall not affect and as in this case, since the vendors of the defendant No.8 purchased the property in the year 1996, the plaintiffs are not entitled for partition and separate possession.
20. Section 6 of the Hindu Succession (Amendment) Act, 2005 reads thus:
6. Devolution of interest in coparcenary property:-
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
..
..
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
That means, any disposition or alienation including any partition made before the 20th day of December, 2004 shall not affect. But, the fact remains that before commencement of Central (Amendment) Act in the year 2005, Chapter IIA has been inserted by the Hindu Succession (Andhra Pradesh Amendment) Act, 1986 w.e.f. 05.09.1985.
Section 29-A of Chapter IIA reads thus:
29A. Equal rights to daughter in coparcenary property. - Notwithstanding anything contained in Section 6 of this Act -
(i) in a Joint Hindu Family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son;
inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter as the case may be;
(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of Clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(iv) nothing in Clause (ii) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.
21. Under Section 29A added by the Amendment, the daughter shall by birth become a coparcener in her own right in a joint Hindu family governed by Mitakshara law, and shall have the same rights and be subject to the same liabilities as if she would have been a son. In the event of partition, she shall be allotted the same share as that of the son, and if she is dead at the time of partition, her children will be allotted her share. Even the Honble Apex Court in a case of S.Sai Reddy Vs. S.Narayan Reddy [(1991)3 SCC 647] upheld the Andhra Pradesh State amendment.
22. This Court also in a case of Dodla Chinnabbai Reddy Vs. Dodla Kumara Swami Reddy and others , held in Paras 52 and 53 as follows:
52. The legislative background of this enactment is that while male coparceners are entitled for a share in the ancestral property by virtue of birth up to four generations, such a privilege was not extended to the female children professing Hindu religion. For the first time an inroad was made into this Hindu Law and the female children of a person were given a share in the property of that person if he dies intestate, but not otherwise. As far as State of Andhra Pradesh is concerned, for the first time, the Legislature conferred the benefits of coparcenary rights on the female children also by introducing Section 29-A of the Act, which was inserted by amendment Act 13 of 1986 with effect from 5.9.1985. As per the amended section, coparcenary rights were conferred only on the female children who are not married prior to 5.9.1985. On the other hand Section 6 of the Act remained in fact and an exception was made by using non-obstante clause by which coparcenary rights were conferred on the female children who are not married prior to 5.9.1985. Hence, we are of the firm view that the rights of the daughters who are married prior to 5.9.1985 are identified and protected under Section 6 of the Act, barring coparcenary rights more so in the absence of an indication in the State amendment that the rights accrued to them will be taken away. Further the State amendment is prospective in nature and it is nobody's case that the father of the parties died after the State amendment came into force.
It is also well settled that the rights of parties cannot be taken away by an amendment, unless the same is given retrospective effect expressly. On this ground also the view taken by the learned single Judge cannot be sustained.
53. Non-obstante clause used in Section 29-A of the Act is intended to carve out an exception in favour of the daughters who remained unmarried till 5.9.1985, by conferring coparcenary rights on them. Hence in the present set of facts and the view taken by the learned single Judge while dealing with the question of non- impleadment of the necessary parties that after introduction of the State amendment, the rights of the daughters who were married prior to 5.9.1985 remains extinguished is erroneous and cannot be sustained in law, since the intention of the Legislature is not to abrogate the rights that were already conferred under Section 6 of the Act, but intended to confer additional benefits by keeping the benefits under the parent Act in tact. If any other interpretation is given, it runs counter to the aims and objects of the parent Act. Accordingly we answer this point in favour of the 1st defendant- appellant.
23. In view of the above, it is clear that in Andhra Pradesh, there is a State amendment under Chapter IIA to the Hindu Succession Act, 1956 and it came into force w.e.f. 05.09.1985 after the State Legislation has received the approval of the President. Therefore, the argument of the learned counsel for the defendant No.8 that as per the proviso to sub-section(1) of Section 6 of the Hindu Succession (Amendment) Act, 2005, the disposition or alienation including any partition made before the 20th day of December, 2004 shall not affect, has to be negatived in view of the fact that no partition has taken place even till now and all the coparceners are not made parties to Exs.A.1 and A.2.
24. Admittedly, after the death of C.Eshwaraiah, the plaintiffs have got equal right as that of defendants 1 to 6. Further, defendants 5 and 6 being sons of C.Eshwaraiah also not executed Exs.A.1 and A.2. The contention of the plaintiffs and defendants 5 and 6 is concerned, Exs.A.1 and A.2 were executed behind their back and the defendants 1 to 4 and C.Anjaiah had no right to alienate Ac.11.38 gts. in the suit schedule property to the vendors of the defendant No.8. However, the validity of agreement of sale-cum-GPA in favour of defendant No.8 by his vendors and the effect of decision in a case of Suraj Lamp & Industries Private Limited Vs. State of Haryana and another , are not the aspects to be considered here since it is upto the trial Court to decide on those aspects after full-fledged trial along with the issues of limitation and Court fee.
25. Prima facie, after the death of C.Eshwaraiah and Anjaiah, the properties were not partitioned by fixing the metes and bounds among the coparcerners including the plaintiffs. Therefore, the plaintiffs are entitled for their share prima facie in the suit schedule properties which were devolved on them after the death of C.Eshwaraiah. Further, the defendants 1 to 4 without the consent and knowledge of the plaintiffs and defendants 5 and 6, sold Ac.11.38 gts. in favour of third parties. Therefore, the appellants/plaintiffs got prima facie case that they have got 1/18th share each in the suit schedule property and balance of convenience also in their favour and if the order of status quo is not restored, certainly defendant No.8, who is a agreement of sale-cum- GPA holder, will alienate Ac.11.38 gts. and also change the nature of the property and if it is allowed to happen, the interest of the plaintiffs and defendants 5 and 6 as well the innocent purchasers will be in jeopardize. Therefore, order of the trial Court to vacate the status quo order, dated 28.01.2014, passed in I.A.No.113 of 2014, is to be set aside. Further, in view of the fact that notices are not served on some of the respondents/defendants in I.A.No.113 of 2014, the trial Court is directed to dispose of the I.A.No.113 of 2014 afresh after giving opportunity to all the parties.
26. In the result, the Civil Miscellaneous Appeal is allowed, setting aside the order dated 01.05.2014, passed by the II Additional District Judge, Ranga Reddy District at L.B.Nagar, in I.A.No.419 of 2014 and ex parte order of status quo granted on 28.01.2014 in I.A.No.113 of 2014, is restored. Consequently, the trial Court is directed to dispose of the I.A.No.113 of 2014 afresh, after giving opportunity to all the parties, by taking into consideration of the counters of defendants 5 and 6 and after serving notices to the remaining defendants. No order as to costs.
27. Miscellaneous Petitions, if any, pending in the Civil Miscellaneous Appeal shall stand closed.
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(K.C. BHANU, J)
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(ANIS, J) 24.09.2014