KOMMIREDDY LINGA REDDY Vs. PALGIRI ANJI REDDY

JUDGEMENT

(1.) THE petitioners herein filed O.S.No.232 of 2009 in the Court of Junior Civil Judge, Darsi, against respondents 2 to 4, their brothers for the relief of partition and separate possession of the suit schedule property. THE 1st respondent herein got himself impleaded as defendant No.4 in the suit claiming interest in the property. He filed I.A.No.610 of 2010 with a prayer to permit him to make a counter claim for the relief of perpetual injunction. It was pleaded that he filed O.S.No.195 of 2001 in the same Court on earlier occasion against respondents 2 to 4 for the relief of perpetual injunction in respect of the same property and that a decree has been passed therein. He pleaded that the present suit was filed by the petitioners only with a view to overcome the decree passed against their brothers. Mention was also made to the attempts made by the petitioners to claim title and possession over the property.

(2.) THE application was opposed by the petitioners. THEy state that the application is not maintainable in law and that the 1st respondent has already filed a written statement in collusion with respondents 2 to 4 to defeat their interests. THE trial Court allowed the I.A. through order, dated 08.11.2010. THE same is challenged in this revision.

(3.) THE relief claimed in O.S.No.232 of 2009 is the one for partition and separate possession and it is among the brothers. THE 1st respondent got himself impleaded claiming rights over the suit schedule property. As and when the Court takes up matter, the 1st respondent can put forward his contention. In case, his plea that he is the owner of the said property, is accepted by the Court, the suit itself deserves to be dismissed, since the property will not be available for partition, whatever be the relationship between the parties. It is almost uncommon that the counter claim for the relief of perpetual injunction is made in a suit for partition simplicitor. By and large, the parties to such a suit would be either coparceners or co-owners and even if non-coparceners or non-co-owners are added as parties, it would be in their capacity as persons claiming through the co-owners etc. Even where an individual claims absolute right in the property, in opposition to the claim for partition, the question needs to be dealt with, at the hearing of the suit. As long as the suit retains the character of one for partition, the grant of injunction would almost be an extraordinary phenomenon.