D RAVINDER Vs. D RAMESH

JUDGEMENT

(1.) THE respondents 1 and 2 filed O. S. No. 35 of 2008 against the petitioners and respondents 3 and 4 in the Court of XI Junior Civil Judge, City Civil Court, secunderabad, for the relief of perpetual injunction, in respect of eastern portion of house, standing on plot Nos. 160 and 160/a, situated at Vasavinagar karkhana, Secunderabad. They based their claim on a Will, said to have been executed by late D. Rangaiah, the father of the 1st respondent and the 1st petitioner herein. They have also filed I. A. No. 62 of 2008, under Order 39 Rules 1 and 2 C. P. C. , for temporary injunction. The petitioners opposed the I. A. , by stating that the respondents are not in possession of any portion of the house, referred to above. It was alleged that the Will relied upon by the respondents 1 and 2 is fictitious and fabricated. After discussing the matter at length, the trial Court dismissed the I. A. , through order dated 09-09-2008. Aggrieved by the same, the respondents 1 and 2 filed C. M. A. No. 24 of 2008 in the Court of I additional Chief Judge, City Civil Court, Secunderabad. Through its order dated 11-02-2009, the lower Appellate Court granted temporary injunction in favour of respondents 1 and 2, as regards "western portion of the house". The petitioners challenge the said order.

(2.) SRI M. S. Ramchandra, learned counsel for the petitioners, submits that when the specific prayer in the suit as well as the I. A. was, in respect of the eastern portion of the house, there was absolutely no basis or justification for the lower Appellate Court in granting the relief as regards the western portion. He contends that even if the suit were to have been decreed, as prayed for, by it, the nature of the relief granted by the lower Appellate Court would not have been possible. He submits that when the respondents 1 and 2 have realized that they have no right over the house, they are not entitled for the relief claimed for, in the suit and I. A. , and have filed applications for amendment of the plaint and I. A. , the lower Appellate Court ought not to have proceeded as though the plaint and I. A were amended, and a prima facie case, as regards the amended schedule of the property; was made out.

(3.) SRI R. Chandrasekhar Reddy, learned counsel for the respondents 1 and 2, on the other hand submits that an accidental omission has taken place, as regards the description of the property, and that his clients have taken necessary steps for correction of the same. He contends that the lower Appellate Court was satisfied about the right of the respondents 1 and 2, vis--vis western portion of the house, and accordingly granted the relief. The suit was, for the relief of injunction-simplicitor. The property, as regards which, the relief sought, was, described in the schedule, i. e. eastern portion of the premises, standing on plot No. 160 also bearing No. 160/a, (total area of plot is 416. 67 sq. yards or 34. 37 sq. meters), situated at Vasavinagar, karkhana, Secunderabad Cantonment. This was the description in the prayer portion of the plaint, as well as the schedule. The boundaries were also mentioned. The relief of temporary injunction was claimed, with respect to the same property. In the written-statement to the suit, and counter to the I. A. , the petitioners flatly denied the assertion made by the respondents 1 and 2.