Decided on December 17,2003

Kamta Bai Appellant
Inderchand Parekh Respondents


FAKHRUDDIN, J. - (1.)Defendant Nos. 1, 2 and 4/Appellants have preferred this appeal under Order 43 Rule l(r) of the Code of Civil Procedure against the Order dated 09-05-2003 passed by the 5th Additional District Judge, Raipur in Civil Suit No. 136-A of 2002
(2.)Briefly stated facts of the case are that the Appellant No. 1 is a Sister-in-law of Plaintiff Respondent No. 1, Appellant No. 2 and Appellant No. 3 are Nephew and Niece of Plaintiff Respondent No. 1 respectively. Plaintiff Respondent No. 1 is an old man. He is also said to be handicapped. The Respondent No. 1 Plaintiff filed suit for partition and permanent injunction against the present Appellants and present Respondents No. 2 to 7. It is stated that one Dharam Chand Parekh was the ancestor of the property in question. He had three sons namely, Deepchand, Sheetalchand and Inderchand. Deepchand and Sheetalchand died. The Appellants are the legal representatives of late Deepchand. Inderchand filed the suit in question. Alongwith the suit, an application (Annexure P/3) under Order 39 Rule 1 and 2 Code of Civil Procedure was also filed. Suit map was also filed along with the plaint.
(3.)The contention of the Plaintiff is that there was a common passage marked by red ink in the plaint map, which was utilized by all the co-owners. There existed a temporary partition but Defendants No. 1, 2 and 4, who are the Appellants, have removed the said temporary partition and have put shutters, there by permanently closing the common passage. The Defendants however denied this. It was contended by the Defendants that partition by metes and bounds has taken place between the parties and the Plaintiff has no right or title over this property. By filing application under Order 39 Rule 1 and 2 Code of Civil Procedure right to use passage to and fro was claimed. The Defendants filed reply to the application under Order 39 Rule 1 and 2 Code of Civil Procedure The Defendants No. 1 to 4 opposed the prayer for grant of temporary injunction whereas Defendants No. 5 to 9 supported the Plaintiff's case. Prima facie, the learned trial Court for the purposes of grant of temporary injunction considered the matter and passed the impugned order whereby it has allowed the application filed by the Plaintiff under Order 39 Rule 1 and 2 Code of Civil Procedure and directed that the Defendants No. 1 and 2 shall not interfere in the usage over the common passage shown in red ink and the door which exists there shall not be closed.

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