THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.M.A. No.1032 of 2011 JUDGMENT: (Per Hon’ble Sri Justice N.V. Ramana) This appeal is filed by the appellant-1st defendant against the order dated 21.7.2011 passed in I.A.No.689 of 2011 in O.S.No.126 of 2011 by the I Additional District Judge, Nellore. The 1st respondent herein is the plaintiff in the suit. He filed the suit against the appellant and respondents 2 to 5 for partition of the plaint schedule property to an extent of Ac.0.77 cents out of total extent of Ac.4.52 cents in S.No.262/2 of Venkatagiri revenue village and for separate possession of the same. In the said suit, the plaintiff filed I.A.No.689 of 2011 under Order 39 Rule 1 of CPC for the relief of temporary injunction restraining the defendants from alienating the plaint schedule property under house plots. The Court below having observed that the purchase of undivided extent of Ac.3.75 cents out of Ac.4.52 cents by the husband of the appellant-1st defendant is not in dispute and the dispute is with regard to undivided Ac.0.77 cents retained by the father of the plaintiff and that the recital of the sale deed obtained by the husband of the appellant-1st defendant shows that the land was joint and the defendants could not show when the land was divided between the husband of the 1st defendant and the father of the plaintiff and therefore, it is deemed that the land is still joint, allowed the application granting temporary injunction restraining the defendants from alienating any portion of Ac.4.52 cents. Hence, the present appeal. Aggrieved by the same, the 1st defendant filed the present CMA. The 1st respondent-plaintiff filed an affidavit admitting that his father and himself sold Ac.3.75 cents out of Ac.4.52 cents to the husband of the appellant-1st defendant and undivided Ac.0.77 cents remained with him, but however, the survey No.262/2 is not yet demarcated and it is not possible to identify the undivided Ac.0.77 cents, which he is claiming by way of partition. Further, it is stated in that in order to protect the interest of the 1st respondent, Ac.0.77 cents on the South East corner in Sy.No.262/2 may be set apart. The learned Counsel for the appellant-1st defendant contended that the Court below is not justified in granting temporary injunction in respect of the entire property. He filed a memo stating that the appellant-1st defendant is the owner of Ac.3.75 cents and the respondent is owner of Ac.0.77 cents and the appellant hereby undertakes that she shall not interfere or sell or create any third party interest on Ac.0.77 cents of land in Sy.No.262/2 on Southern side as per the counter-affidavit of the 1st respondent-plaintiff and further undertakes to file an affidavit before the Court below also to this effect, for which, the learned Counsel appearing for the 1st respondent- plaintiff reported no objection. From a perusal of the plaint and the relief sought by respondent No.1-plaintiff in the suit, it became crystal clear that the claim of the plaintiff is in respect of Ac.0.77 cents only. Therefore, we are of the considered opinion that the Court below was not justified in granting temporary injunction in respect of the entire extent viz., Ac.4.52 cents. In that view of the matter and having regard to the memo filed by the appellant-1st defendant, as noted above, we deem it appropriate to modify the order of temporary injunction passed by the Court below to the effect that the defendants are restrained from alienating Ac.0.77 cents out of Ac.4.52 cents in Sy.No.262/2 on Southern side. Accordingly, the appeal is partly allowed. No costs. __________________ Justice N.V. Ramana DATE: 12.10.2011 ____________________ Justice P. Durga Prasad nn THE HON'BLE SRI JUSTICE N.V. RAMANA & THE HON'BLE SRI JUSTICE P. DURGA PRASAD C.M.A.1032 OF 2011 (Judgment delivered by the Hon’ble Sri Justice N.V. Ramana) 12.10.2011 Nn