This

captioned

writ

petition

is

filed

by

the

unsuccessful plaintiff, who has questioned the concurrent

judgment and decree of the trial Court in declining to grant

perpetual injunction against the defendants.

2. For the sake of brevity, the parties are referred

as they are ranked before the trial Court.

3. The present plaintiff has instituted an injunction

suit simplicitor by alleging that the plaintiff was put in

4

possession of the suit schedule property in terms of the

sale

agreement

dated

09.06.1988

executed

by

1st defendant's husband who is none other than the father

of the plaintiff. Therefore, the plaintiff contended that she

is in possession of the suit schedule property and that she

is cultivating the suit schedule property on contract basis.

Therefore, based on agreement to sell dated 09.06.1988,

the present suit for injunction simplicitor came to be filed.

4. After receipt of summons, defendant No.1, who is

daughter-in-law of the alleged vendor, contested the

proceedings by filing written statement. Defendant No.1

specifically contended that she along with her daughter

have filed a comprehensive suit seeking relief of partition

in O.S.No.1491/1992. Therefore, contended that the

present suit for injunction is not maintainable. The

defendants also contended that the relief sought in the

present suit is squarely hit by the provisions under Section

41(h) of the Specific Relief Act. The defendants also

contended that partition suit is already decreed and

5

therefore, the present suit cannot be entertained and

adjudication on possession cannot be entertained in an

injunction suit when there is already decree for partition.

Learned Judge having examined oral and documentary

evidence lead in by both the parties has dismissed the suit

by recording a categorical finding that the present suit is

hit by the provisions of Section 41(h) of the Specific Relief

Act. The learned Judge was also of the view that the

present suit is hit by the principles of resjudicata. Feeling

aggrieved by the same, the plaintiff preferred an appeal

before the First Appellate Court. The First Appellate Court

having independently assessed the oral and documentary

evidence has dismissed the appeal.

5. Heard learned counsel appearing for the plaintiff

and learned counsel appearing for the defendants.

6. The present plaintiff is asserting that she is in

exclusive possession of the suit schedule property on the

basis of the agreement executed by the husband of

6

defendant No.1 as well as father of plaintiff by accepting

sum of Rs.80,000/-. The materials on record clearly

demonstrate that the suit schedule properties are joint

family ancestral properties. The rebuttal evidence lead in

by the defendant also reveals that defendant No.1 filed a

suit for partition and separate possession, which came to

be decreed granting half share in the suit schedule

properties. If plaintiff is a party to the partition suit and if

suit filed by the defendants seeking relief of partition is

decreed, then the suit has to fail on three counts. Firstly,

an injunction suit based on agreement to sell is not

maintainable as there is a bar under Section 41(h) of the

Specific Relief Act. Plaintiff as a joint family member

cannot assert exclusive possession and in a partition suit,

there is already finding of fact that the suit schedule

properties are joint family ancestral properties and the

plaintiff has suffered a decree in O.S.No.1491/1992.

Therefore,

the

present

suit

for

injunction

is

not

maintainable. Thirdly, if in a partition suit, the suit

schedule properties are held to be joint family ancestral

7

properties and if there is a finding that family members are

in joint possession of the suit schedule property, the

present plaintiff claiming to be a daughter of one Jakkappa

cannot assert exclusive possession over the suit schedule

property and such a relief in a joint family properties

cannot be granted. Therefore, on all three counts, the