VASANTHI D/O LATE VASUDEVA PANGANNAYA AND UDAYA PANGANNAYA S/O VASUDEVA PANGANNAYA Vs. USHA D/O LATE VASUDEVA PANGANNAYA AND OTHERS

JUDGEMENT

(1.) THIS appeal is filed by defendants 2 and 8 in O.S.No. 7/2011, assailing the order dated 29.9.2011, passed on I.A.No. II which is an application filed under Order XXXIX Rules 1 and 2 of C.P.C. By the said order, the appellants herein viz., defendants 2 and 8 were restrained by injunction from putting up any construction in the Darkasth property granted in favour of defendants 2 and 8, pending disposal of the suit.

(2.) THE relevant facts for the disposal of this appeal are that the. 1st respondent -plaintiff has filed a suit seeking partition and possession in respect of 'B' schedule properties. After service of notice and summons in the said suit, defendant No. 4 appeared and filed written statement. Defendant No. 4 also filed an application under Order XXXIX Rules 1 and 2 read with Section 151 C.P.C. seeking injunction against plaintiff and defendant Nos. 1, 2, 3 and 8. The said application came to be allowed against only defendant Nos. 2 and 8, who have filed this appeal assailing the said order.

(3.) HAVING heard the learned counsel for the petitioners and the learned counsel for the respondents/caveators, it is to be noticed that the 1st respondent -plaintiff has sought the relief of partition and separate possession in respect of her 1/5th share in so far as 'B' schedule properties are concerned. The schedule properties mentioned in the application filed under Order XXXIX Rules 1 and 2 of C.P.C. are not arrayed as suit schedule items. Defendant No. 4 therefore could not have sought an injunction against the plaintiff and other defendants in so far as the properties mentioned in the said application are concerned when the same are not the subject matter of the suit. The trial Court was therefore not correct in granting an order of temporary injunction in respect of those properties which are not the subject matter of the suit, On that short ground alone the order has to be quashed.