PREM CHAND JAIN Vs. SUGAN CHAND

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -defendant No. 2 under Order XLIII Rule 1(r) of CPC challenging the order dated 15.10.12 passed by the Addl. District Judge, Gangapur City (hereinafter referred to as 'the trial court') in Civil Misc. Application No. 49/12, whereby the trial court has dismissed the application filed by the appellant under Order XXXIX Rule 1 and 2 read with Section 151 of CPC. In the instant case, it appears that the appellant as well as the respondents are the brothers. The respondent No. 3 Lal Chand has filed the suit before the trial court seeking partition of the moveable and immovable properties belonging to his father Phool Chand. In the said suit, the appellant who is the defendant No. 2, had filed the application seeking injunction against the respondent No. 1 -defendant No. 1 for restraining him from getting the lease deed registered in respect of the disputed shop being No. A -4, Alanpur, Sawai Madhopur. The said application has been dismissed by the trial court by the impugned order, against which the present appeal has been filed.

(2.) IT has been sought to be submitted by the learned counsel Mr. Poonam Chand Bhandari for the appellant that the disputed shop was allotted by the Krishi Upaj Mandi Samiti to the firm belonging to the father of the appellant and, therefore, the said property was also required to be partitioned amongst the brothers who are the parties to the suit. He has submitted that the impugned order passed by the trial court is perverse and deserves to be set aside.

(3.) HAVING regard to the submissions made by the learned counsels for the parties and to the impugned order passed by the trial court it appears that the respondent No. 2 has filed a suit for partition against the present appellant and the respondent No. 1 in respect of the properties mentioned in the plaint, however, the said properties do not include the disputed Shop No. A -4. The trial court has rightly observed that whether the properties belong to the father of the appellant or the firm would be decided in the suit, however the disputed shop being not the part of the subject matter of the suit, no relief as prayed for could be granted. The court does not find any illegality or infirmity in the impugned order passed by the trial court which would require interference. In that view of the matter, the appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.