MOHD. ZAFAR Vs. MOHD. SAMIULLAH ANSARI

JUDGEMENT

(1.) The petitioner before this Court is a defendant in Suit No. 101 of 2015 Mohd. Samiullah Ansari vs. Mohd. Zafar and others. In the suit in question the plaintiff/respondent herein has sought a degree in relation to the property as described at the foot of the plaint, as to be lying in Khasra No. 663 Kha. The suit accompanied with it and application under Order 39 Rule 1 and 2 of C.P.C. as well as the plaint map where the property was described by figure a A, B, C, D showing it to be the part and parcel of the land lying in Khasra No. 663 Kha

(2.) The application filed under Order 39 Rule 1 and 2, by the plaintiff/respondent was opposed by the defendant/petitioner by filing an objection under order 39 Rule 4 of the C.P.C. and if the objection under Order 39 Rule 4 of C.P.C. is taken into consideration primarily, the fact as pleaded in para 6 of objection, only distinction which was carved out by the petitioner to question the identifiability of the propriety of the trial court for granting the injunction was with regards to the fact, that the property in dispute is located at a distance from the disputed property of the suit.

(3.) There is nothing on record to show that when at this stage when the application under order 39 Rule 1 and 2 of the C.P.C. was being considered, if there was a dispute with regards to the identifiability to the of the property in that eventuality the recourse available to the defendant would have been to file an appropriate application under Order 39 Rule 7 of the C.P.C. before an application under Order 39 Rule 1 and 2 of the C.P.C. is considered but however the same was not done.