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2011 DIGILAW 4739 (MAD)

First v. Second

2011-12-08

VINOD K.SHARMA

body2011
Judgment : VINOD K. SHARMA, J. 1. The plaintiffs/applicants have filed this application, under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, for restraining the defendants/respondents from putting up any construction over the property bearing Door No.9, New No.10/6, Apavoo Gramani 2nd Street, Robertsonpet, Mandaveli, Chennai. 2. The plaintiffs/applicants filed a suit, by pleading that the plaintiffs are entitled to their share in the suit property measuring 2400 sq. ft. The plaintiffs claim that they are entitled to inherit 1200 sq. ft. which fell to the share of their father in the family partition. 3. The suit property was purchased by the grandfather of the plaintiffs/applicants and the defendants on 21.02.1934, and the property was thereafter partitioned between the sons. 4. The case of the plaintiffs/applicants is, that the defendants are illegally or wrongly claiming to be the owners of the entire property in exclusion to the plaintiffs, on the ground that the father of the plaintiffs/applicants, was adopted by their paternal aunt. Therefore, he left the family of his grandfather, which disentitles him of any inheritance in the property. 5. The defendants/non-applicant also filed a suit for injunction restraining the plaintiffs/applicants from interfering in the peaceful possession of the defendants/non-applicant, in that suit, this Court, on appreciation of the facts had granted injunction in favour of the defendants/non-applicant. 6. Now, this application has been moved for restraining the defendants from raising any construction over the suit property pending this suit. In order to claim injunction against the co-owner, the plaintiffs are required to prove the prima facie case, the balance of convenience and irreparable loss and injury. It is not disputed that the plaintiffs/applicants have inherited the property of adoptive mother through their father. 7. It is proved on record that the plaintiffs/applicants are not in possession of the property, which is in exclusive possession of the defendants/non-applicant. 8. The document has been placed on record, showing the admission by the father of the plaintiffs/applicants claiming to be adopted son of his paternal aunt. 9. In view of the admitted facts, it cannot be said that the plaintiffs/applicants, have prima facie case in their favour. Furthermore, any change in the suit property will be subject to lis pendens. 8. The document has been placed on record, showing the admission by the father of the plaintiffs/applicants claiming to be adopted son of his paternal aunt. 9. In view of the admitted facts, it cannot be said that the plaintiffs/applicants, have prima facie case in their favour. Furthermore, any change in the suit property will be subject to lis pendens. The plaintiffs/applicants thus have failed to make out any prima facie case, therefore, no ground is made out to grant injunction as prayed for as the balance of convenience is also not in favour of plaintiffs/applicants. No merit. Dismissed.