SYED MUBASHERUDDIN AHMED Vs. SYEDA NUZHT MURTUZA

JUDGEMENT

(1.) This Civil Miscellaneous Appeal filed under Order 43 Rule 1 of C.P.C. is directed against the order dated 6-4-2005 in I.A.No.2168 of 2004 in O.S.No.319 of 2004 on the file of the Court of the Ill-Addl. Chief Judge, City Civil Court, Hyderabad granting temporary injunction restraining the appellants herein from making further demolition of the part of the suit schedule property and also from taking up any construction thereon pending disposal of the suit.

(2.) When the Miscellaneous Petition seeking suspension of the impugned order has come up for consideration, at the request of the learned Counsel for both the parties the main Appeal itself is heard and decided by this order.

(3.) The respondent herein is the plaintiff who filed O.S.No.319 of 2004 seeking partition of the suit schedule properties claiming that the same belong to late Syeda Faqur Noorjahan her paternal aunt, who died issueless. She claims 2/3rd share in the plaint schedule property. The appellants 1 and 2 herein (defendants 1 and 2 in the suit) are the son and husband respectively of one Syeda Aktar Jahan, younger sister of Syeda Faqur Noorjahan. The said Syeda Aktar Jahan pre-deceased Syeda Faqur Noorjahan. It was alleged by the plaintiff that the 2nd defendant denied her right for a share in the property of late Syeda Faqur Noorjahan claiming title under a Will, dated 15-7-1998 alleged to have been executed by Syeda Faqur Noorjahan in favour of the 1st defendant. The plaintiff disputed the said Will and claims that she is the only legal heir of late Noorjahan and though her father with his family members migrated to Pakistan, she came to India long back and she has been staying in India and Indian Citizenship was also issued to her on 5-7-2004. It was alleged that the 1st defendant entered into an Agreement of Sale-cum-General Power of Attorney with the third defendant for demolition of the house existing on the suit schedule property and to develop the same into a residential complex and on the said plea she sought for a temporary injunction restraining the defendants from proceeding with the said activities till the disposal of the suit. After hearing both the parties, the said application being I.A.No.2168 of 2004 filed under Order 39 Rules 1 and 2 of C.P.C. was allowed by order dated 7-1-2005 and temporary injunction was granted restraining the defendants/appellants herein from making furtherdemolition of the suit schedule property and taking up any construction thereon pending disposal of the suit. Aggrieved by the same, the appellants herein filed C.M.A.No.92 of 2005 in this Court.