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Judgment
R.K. Deshpande, J.—Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.
The Trial Court allowed the application filed by defendant No.2 for injunction restraining the plaintiffs and other defendants from disturbing the possession of defendant No.2, who is the purchaser of the portion in the suit property. Against the said order, Misc. Civil Appeal No.44 of 2010 came to be filed and the same has been dismissed by the learned District Judge 1, Wardha. Both these orders are subject matter of challenge in this petition by the plaintiffs. The other defendants have not challenged the orders passed by the Courts below. The defendant No.2 is before this Court and it is not necessary to issue fresh notices to the defendants, who have not appeared before this Court.
The contention of Shri Bramhe, the learned counsel appearing for the petitioners/plaintiffs, is that such application is not maintainable under Order 39, Rule 1(a) of the Civil Procedure Code. According to him, the said provision entitles the defendant to file an application and claim the relief only if the property in dispute is in danger of being wasted, damages or alienated or wrongfully sold in execution of the decree. He submits that the application for grant of injunction filed by defendant No.2 restraining the petitioners/plaintiffs and other defendants from disturbing his possession was not covered by Rule 1(a) of Order 39 of the CPC and hence such application at the instance of the defendant was not maintainable. There is no other contention raised.
According to the petitioners/plaintiffs, the defendant No.2 has purchased the suit property, which is an ancestral property. Therefore, even assuming that this position is correct, the defendant No.2 would be entering into the shoes of the coparceners from whom he has purchased the suit property and in that capacity he would be the defendant in the suit for partition and separate possession. In a suit for partition and separate possession, all the defendants are the plaintiffs and hence the provision of Order 39, Rule 1(a) of the CPC is not at all attracted and the application for grant of temporary injunction at the instance of the defendant No.2 was maintainable. Hence, no fault can be found with the orders passed by both the Courts below.
The petition is, therefore, dismissed. Rule stands discharged. No order as to costs. The Trial Court is expedited the suit.