MARTIN D SILVA Vs. HAKIM MARTIN D SILVA

JUDGEMENT

(1.) THIS Misc. Civil Appeal is directed against the order dated 1. 09. 1989, passed by the learned Additional District Judge, No. 6 Jaipur City, Jaipur, in Civil Misc. Application No. 90/1989.

(2.) BRIEF facts of the case are that the plaintiff and his brothers are having the chequered history of litigation and various cases are pending in the courts. Plaintiff filed a suit for partition against his brothers and is pending in the trial court. He has filed this suit and prayed that the property marked as MNSPOVW in the map and plain may be declared as a joint property and permanent injunction may be issued restraining the defendant to alienate the property. A further prayer had also been made that the injunction may be issued restraining the defendant to raise construction on any part of the property which is in dispute.

(3.) IN this suit, the plaintiff has also come with a case that he has a right in the property and the property cannot be alienated. He has also filed a suit for partition. IN such circumstances, it is also necessary to safe-guard the interest of the party whose application for the grant of temporary injunction has been rejected. There may be a contingency that the defendant may alienate the property and in that case, the plaintiff may not be able to execute the decree easily for one reason or the other and there may be number of difficulties in the matter of execution of decree even if it is executable. The other contingency which may arise is about the construction on the. property. IN fact, in this suit the plaintiff has said that it is a common property owned by all of them and the defendant has no right or interest in his individual capacity and he cannot be allowed to raise construction. Plaintiff wants the partition of the property. The application for grant of temporary injunction has been rejected by the trial court on one of the ground that the defendant is having huge immovable property and even if the plaintiff succeeds he can get his share out of the property and there will be no difficulty in getting the share.