YADAV, J. - (1.) SINCE both appeals are arising out of the same order passed by the learned Additional District Judge No. 2, Jodhpur, therefore, these two appeals are being disposed of by a composite judgment. The appeal No. 602/94 would be treated as a leading appeal.
(2.) THE plaintiff-appellant No. l to 3, Arun Kumar, Santosh Kumar and Shanta Devi filed a civil suit for partition and for accounting with a prayer for permanent injunction against Mohan Lal, Lata, Man Kanwar, Kaushalya and Ichhalal. According to the plaintiff-appellants the disputed property consists of six shops and one residential house alongwith some open space. According to the plaint allegations property in question is in joint possession of the plaintiffs and the defendants. According to the plaint allegations, since the defendant No. l Icchalal was not prepared to partition and he wanted to enjoy the fruits of entire property which has necessitated to file the instant suit for partition to get their share partitioned by metes and bounds. The plaintiffs however alleged that since the rent was being received by the defendant No. l Ichhalal, therefore, he may be directed to submit a detailed account and as per account whatever share is found due that may be given to the plaintiff-appellants. The plaintiff-appellants also filed an application for temporary injunction alongwith the aforesaid civil suit under 0. 39 r. l and 2 CPC with a prayer that the defendant No. l may be restrained from alienating the disputed property and he may be further restrained from dispossessing the plaintiff-appellants from the disputed property and also from interfering in their peaceful enjoyment of the joint property in question till decision of the suit. The defendant No. l, Ichhalal, filed a reply to the application for temporary injunction filed by the plaintiff appellants denying the joint ownership of the disputed property, although it was clearly admitted that the name of Pushkar Narayan and Mohanlal were mentioned in the sale deed out of love and affection. Thus according to the defendant-respondent No. l, Ichhalal, Pushkar Narayan and Mohanlal have no right, title or interest over the dispute property. Oral family settlement is also" alleged in Samvat 2030. . After hearing the arguments of the learned counsel appearing on behalf of the plaintiff-appellants as well as on behalf of the contesting respondent No. l, Ichhalal, the application of injunction of the plaintiff-appellants was allowed on 17. 11. 1994 and it was ordered that both the parties to maintain status quo till the decision of the suit but it was further ordered by the learned trial court that the injunction order passed by him has nothing to do with the recovery of the rent. It is pertinent to mention that the learned trial court vide his order dated 17. 11. 94 also restrained the defendant No. l, Ichhalal, from raising any construction over the land in dispute and he was also restrained from alienating the property in question.
(3.) THE aforesaid injunction order which was passed by the trial court on the application moved by the plaintiff appellants under 0. ,39 r. 1 and 2 CPC was attained finality between the parties inasmuch as no appeal has been filed against this order. However, in the present appeal a controversy centre-around an application moved by the defendant No. l, Ichhalal, under 0. 39 r. l and 2 CPC read with Section 151 CPC making a prayer that the plaintiff- appellants and the defendants No. 2 to 5 be restrained from recovering the rent from the tenants of the disputed property. The plaintiffs and defendants No. 2 to 5 filed their reply to the above application and alleged that the rent was being recovered as per oral agreement between the parties and the tenants have also started making payment from 1. 4. 94. In reply it was also alleged that the defendant No. l was not entitled for temporary injunction as an application filed by him is not maintainable. After hearing learned counsel for the plaintiff-appellants as well as learned counsel appearing on behalf of contesting respondent No. l, Ichhalal, the learned trial court allowed the injunction application of the defendant No. l, Ichhalal, on 17. 11. 94 restraining the plaintiff-appellants and defendants No. 2 to 5 from interfering with the recovery of rent of six disputed shops by defendant No. l Ichhalal. ;