1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21.06.2011 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI C.M.A(MD)No.754 of 2011 and M.P.(MD)No.1 of 2011 1. Muthusamy 2. Perumal 3. Arumugam 4. Murugan ... Appellants/Plaintiffs .Vs. 1. Meenakshisundaram 2. Valliammal 3. S.Arumugam ... Respondents/Respondents PRAYER: Civil Miscellaneous Appeal filed under Order 43, Rule 1(R) r/w Section 104 of Civil Procedure Code, against the order dated 30.04.2010, made in I.A.No.62 of 2010 in O.S.No.17 of 2010, on the file of the Principal District Judge, Thoothukudi. For Appellants : M/s.G.Prabhu Rajadurai JUDGMENT The appellants herein are the petitioners/plaintiffs in I.A.No.62 of 2010 in O.S.No.17 of 2010. The appellants as plaintiffs filed the suit for partition and for separate possession of the suit properties on the basis that the properties are joint family properties of the petitioners and the first respondent and pending suit, come forward with I.A.No.62 of 2010 in O.S.No.17 of 2010 under Order 39 Rule 1 of Civil Procedure Code for restraining the respondents from alienating or encumbering the suit properties till the disposal of the suit. 2. The suit as well as I.A is seriously contested by the respondents by denying the joint family nature of the suit properties. According to the respondents, the suit properties are self-acquired properties of one Subbiah Pillai and after his death in the year 1977, the suit properties were transferred to the share of the first respondent in the oral partition effected between the legal representatives of Subbiah Pillai and the parties have been since the date of oral partition in possession and enjoyment and possession of the suit properties and other parties have no right or claim over the share allotted to other sharers. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The trial court has after due contest, dismissed the petition on the ground that the petitioners failed to prove their case regarding their right to claim share and their joint possession and enjoyment of the same. Aggrieved against the same, the appellants have preferred the present Civil Miscellaneous Appeal before this Court. 4. Though the learned counsel for the appellants have seriously questioned the dismissal of I.A by contending that the failure to grant injunction against the respondents is likely to result in intervention of third party, right and the same is likely to prejudice the right of the petitioners in the main suit. However, this Court is inclined to sustain the order of the lower court mainly on the settled principle that as the suit is one for partition and any alienation or encumbrance during the pendency of the suit by any of the parties is subject to lis pendens and subject to the result of the suit and in the event of the plaintiffs succeeding in their claim in the suit, any sale effected during the pendency of the suit is not binding on them. That being the factual and legal position, the question of granting any order of injunction at the initial stage of the proceedings does not at all arise herein and that the said I.A is rightly rejected by the trial court and the order of the trial court deserves no interference. 5. In the result, the Civil Miscellaneous Appeal is dismissed at the admission stage itself. However, considering the nature and right of properties involved in the suit, the trial court is directed to dispose of the suit on merits and in accordance with law, as expeditiously as possible. Consequently, connected miscellaneous petition is dismissed. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To The Principal District Judge, Thoothukudi. C.M.A(MD)NO.754 of 2011 21.06.2011 vsn NSV/9.8.11/2P/2C https://hcservices.ecourts.gov.in/hcservices/