ELIZABETH Vs. MARIYAMMA

JUDGEMENT

(1.) The appellant-plaintiff has filed the present Miscellaneous First appeal against the order dtd. 20/9/2016 passed on I.A.No.3 in R.A.No.83/2016 on the file of the VIII Addl. District & Sessions Judge, Bengaluru Rural District, Bengaluru, under Order XXXIX Rule 1 and 2, dismissing the application filed by the plaintiff-appellant restraining the respondent No.8/defendant No.8 by changing the nature of the suit property by developing or putting up any construction on item No.1 of the schedule property.

(2.) The present appellant, who is the plaintiff before the trial court earlier had filed O.S.No.52/2004 for partition and separate possession. After contest, the suit came to be dismissed on 13/12/2007 on the ground that the suit was not maintainable for partial partition. The same was challenged in R.A.No.19/2008 before the lower Appellate Court. The appeal came to be dismissed on 31/11/2008. Being aggrieved by the concurrent finding of facts, the appellant filed RSA No.466/2009 before this Court. In the said appeal the appellant/plaintiff filed an application under Order 6 Rule 17 of CPC for amendment i.e., for inclusion of all the properties of the joint family. Further the plaintiff filed another application under Order 41 Rule 27 of Code of Civil Procedure for production additional documents. This Court dismissed the RSA 466/2009 on 23/1/2013. Thereafter, the present suit O.S. No.841/2014 was filed for partition and separate possession by contending that the suit schedule properties are the joint family properties of the plaintiff and defendants and plaintiff is entitled for a share.

(3.) Except defendant No.8, other defendants have not filed any written statement. The 8th defendant in his written statement denied the plaint averments and contested the suit by stating that the 2nd suit filed by the plaintiff is not at all maintainable in view of the dismissal of the earlier suit which was confirmed by the judgment of this Court in RSA No.466/2009, therefore sought for dismissal of the suit. The plaintiff has also filed an application for temporary injunction before the trial court restraining the defendant No.8 from putting up any construction. The trial court by the order dtd. 17/6/2014 granted temporary injunction and directed the parties to maintain status quo. Thereafter the 8th defendant filed an application under order 7 Rule 11 of Code of Civil Procedure for rejection of the plaint.