JUDGMENT

Challenging common order dated 05.03.2024 passed by XXVIII Addl. City Civil Judge, Mayohall Unit, (CCH-29), Bengaluru, in O.S.no.25023/2020 on I.As.no.1/2020, 2/2020, 1/2024 and 5/2024 filed under Order XXXIX Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 ('CPC' for short) respectively, this appeal is filed.

2. Sri Aditya S Kumar, learned counsel for appellants submitted that appellants were plaintiffs in suit filed for partition and separate possession of their for 1/4th share and for permanent injunction etc. In said suit, plaintiffs had filed I.A.no.1/2020 for temporary injunction restraining defendants no.1 to 5 from alienating suit schedule properties during pendency of suit. Likewise, they had filed I.A.no.2/2020 to restrain defendants no.1 to 5 from constructing, altering or in any other manner changing nature of suit schedule properties. Yet another application - I.A.no.1/2024 was filed for restraining defendants from putting up construction and I.A.no.5/2024 was filed for restraining defendants no.3 and 4 from interfering with plaintiffs' peaceful possession and enjoyment over suit schedule properties. It was submitted, though plaintiffs had averred about suit schedule properties being joint family properties in which plaintiffs were also having share and substantiated prima facie case, under impugned order, trial Court clubbed all applications and rejected them on untenable grounds. Assailing same, plaintiffs were in appeal.

3. It was submitted suit was for partition, wherein plaintiffs were claiming 1/4th share in suit schedule properties. It was submitted, if defendants were claiming suit schedule properties to be self-acquired properties, burden would be on them to establish same and until then, presumption would be in favour of jointness of properties. Such being case, observation by trial Court that plaintiffs had failed to establish prima facie case would be untenable and calls for interference. It was also submitted, reason assigned by trial Court that plaintiffs had got O.S.no.4222/2012 filed for partition, dismissed as withdrawn unconditionally and preferring O.S.no.6314/2017 filed by another sister for partition, for not granting injunction would not be justified.

4. It was submitted since O.S.no.4222/2012 was dismissed as withdrawn unconditionally and no decree was passed, same would not come in way of plaintiffs prosecuting present suit. It was submitted, during pendency of present suit, defendants were proceeding with construction and were also destroying coconut trees and attempting to cut them. Therefore, balance of convenience, irreparable loss and injury were in favour of plaintiffs. On said grounds, sought for allowing appeal.

5. On other hand, Sri M.S. Varadarajan, learned counsel for respondents-defendants no.2 to 4 sought to oppose appeal. It was submitted, withdrawal of O.S.no.4222/2012 was by stating that subject matter was settled out of Court. Relief sought in said suit being for partition by plaintiffs, present suit for partition would be second suit, barred by provisions of Order II Rule 2 of CPC. It was submitted, another sister had filed O.S.no.6314/2017, in which relief of partition of very same suit schedule properties was sought and in said suit, plaintiff no.1 was defendant no.2. It was also submitted, withdrawal of O.S.no.4222/2012 was after rejection of prayer for temporary injunction. Under such circumstances, trial Court had dismissed application and same did not call for interference.

6. Heard learned counsel and perused impugned order.

7. From above, main ground of challenge against impugned order being untenability of conclusion, point that would arise for consideration is:

"Whether order impugned suffers from untenability and calls for interference?"

8. Perusal of impugned order, it is seen that filing of O.S.no.4222/2012 for partition by plaintiffs is not in dispute. It is also not in dispute that defendant no.5 had filed O.S.no.6314/2017, wherein plai