SUNDARLAL VITHALTIWARI Vs. PRABHAVATI VITHAL TIWARI

JUDGEMENT

(1.) The petitioners are the plaintiffs and the respondents are the defendants in a suit being Regular Civil Suit No. 252 of 1979, pending in tjie court of the Civil Judge, Junior Division, at Beed which has been filed for perpetual injunction restraining defendants Nos. 2 and 3 from interfering with the plaintiffs' possession of certain properties mentioned in the plaint and also for a declaration that the sale effected by defendant No. 1 in favour of defendants Nos. 2 and 3 in respect of these properties in null and void. Defendant No. 1 is the mother of the plaintiffs who are minors. The properties having been alienated by defendant No. 1 in favour of defendants Nos. 2 and 3, the grand-mother of the plaintiffs, namely the mother of the plaintiffs, filed the suit as a next friend for the reliefs mentioned above.

(2.) In the said suit, an application, being Exhibit 9, was made for a temporary injunction, pending the disposal of the suit. Adinterim injunction which was granted on the said application was confirmed by the learned trial Judge by his judgment and order dated 2 nd August 1979, though in the said order, it has been wrongly mentioned that ad-interim injunction is to be issued whereas in law it was temporary injunction confirming the ad-interim injunction which had already been granted.

(3.) This order of temporary injunction was challenged by defendants Nos. 2 to 5. It should be mentioned at this stage that defendants Nos. 4 and 6 are alleged to be the friends of defendants Nos. 2 and 3 and they are said to be instigating defendants Nos. 2 and 3 in relation to this litigation. However, no reference need be made to them at this stage. The learned Extra Assistant Judge of Beed by his judgment and order dated 10th December 1979 allowed the appeal and vacated the temporary injunction granted in favour of the plaintiffs by the court of first instance. It is this order of the learned Appellate Judge that is the subject- matter of challenge in this petition under section 115 of the Code of Civil Procedure. While allowing the appeal, the learned Extra Assistant Judge has mentioned that the suit itself was not maintainable because it was not instituted by the natural guardian of the minor plaintiffs who was was defendant No. 1 in the suit. He has also mentioned that the sale which has been effected by defendant No. 1 was voidable by the plaintiffs after they attained majority and, therefore as at persent they have no cause of action. On the question of the posesssion of the property, the learned Assistant Judge has not given a clear-cut finding at all. He has only mentioned, especially in relation to lands, that the record of rights could not support the defendants because the relevant records could not have been prepared at the time of the suit.