Krishna Murari, Pratyush Kumar, J. - (1.) HEARD Shri V. Sahai, learned Counsel for the appellant and Shri Diwakar Rai Sharma, Advocate appearing for respondents. By way of this First Appeal From Order, the defendant/appellant (hereafter referred to as 'appellant') has challenged the legality of order dated 8.4.2013 passed by the Additional Civil Judge (Sr. Div.), Court No. 2, Aligarh in Original Suit No. 131 of 2013, Smt. Sudha Rani and another v. Smt. Ruchi Gupta, whereby the plaintiffs/respondents (hereinafter referred to as the respondents application under Order XXXIX Rules 1, 2 and 3, C.P.C. has been allowed and appellant has been restrained during the pendency of the suit not to sell more than her share or any specific portion of the property in dispute. She has been further restrained, during the pendency of the suit, not to interfere illegally in the use, occupation, possession and from carrying on business in the property in dispute.
(2.) LEARNED Counsel for the appellant has argued that the appellant is natural guardian of respondent No. 2, respondent No. 1 could not have filed the suit on behalf of respondent No. 2 as next friend. He further submits that the appellant has pleaded before the Court below that she did not intend to alienate the property, therefore, there was no occasion for granting any injunction. He further submits that respondent No. 1 does not reside in the suit property, this fact has not been noticed in the impugned order. According to the learned Counsel for the appellant, in the impugned order, no finding has been recorded on the point of prima facie case, balance of convenience and irreparable loss in favour of the respondents, therefore the impugned order is illegal and deserves to be set aside. In order to appreciate the aforesaid arguments, we would like to place on record the facts of the case in brief. According to the plaint averments respondent No. 1 is the mother -in -law of the appellant and respondent No. 2 is the grandson of the respondent No. 1 and son of the appellant. Piyush Gupta son of respondent No. 1 died on 23.7.2012. Appellant is his widow, all the parties of the suit being heirs of late Piyush Gupta have 1/3rd share in the property of the deceased. Details whereof has been given at the foot of the plaint. The appellant since 2nd September, 2012 is creating all sorts of problems by interfering in the respondents' joint use, occupation and enjoyment of dwelling house. On 5.1.2013 she alongwith her relatives tried forcibly to dispossess respondent No. 1 but with the intervention of the neighbors, they did not succeed, thereupon the appellant threatened to sell the entire suit property. The respondents have 2/3rd share in the suit property. The appellant is not willing for amicable partition. As a last resort, a suit for partition and prohibitory injunction has been filed. Since respondent No. 2 is minor, being grandmother, respondent No. 1, as next friend also arrayed him as co -plaintiff in the plaint. Along with the plaint, application under Order XXXIX, Rules 1 and 2 and section 151 of C.P.C. for interim injunction supported with affidavit has also been filed.
(3.) THE appellant has filed her written statement, wherein relationship of the parties has been admitted. Rest of the averments made in the plaint have been denied. In the additional pleas, it has been stated inter -alia that she being mother, is the natural guardian of the respondent No. 2, the respondent No. 1 out of greed wants to usurp the property in suit, the appellant has never misbehaved with her. Partnership has been dissolved. Suit is bad for not including all the properties of the deceased, respondent No. 2 lives with her mother. The respondent No. 1 does not live in the said dwelling house mentioned as serial No. 1 at the foot of the plaint. The application for temporary injunction deserves to be rejected.;