In a partition suit, a limited temporary injunction to prevent alienation or waste is permissible to preserve the subject matter, even if a prior decree restricts the applicant's entry, provided the relief sought does not conflict with the terms of that prior decree.

AGAINST THE ORDER DATED 01.07.2026 IN IA 3/2025 IN OS NO.135 OF 2025 OF SUB COURT, CHAVAKKAD

THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 08.10.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 08th day of October , 2026

The appellant is the plaintiff in O.S.No.135/2025 on the file of the Court of the Subordinate Judge, Chavakkad (‘Trial Court’, for short), filed against the respondents/defendants for a decree of partition, separate possession and other consequential reliefs.

It is the appellant’s case that the 1st respondent is her brother and respondents 2 and 3 are the son and wife, respectively, of the 1st respondent. The plaint ‘A’ and ‘B’ schedule properties belonged to the appellant and the 1st respondent’s late father, Lazer, who died intestate on 29.03.2006. The appellant was residing in the plaint ‘A’ schedule property until 22.11.2023. She renovated the dilapidated house situated in the property. According to the appellant, the respondents forcibly ousted her and her daughter from the house with the assistance of the police. Although an ex parte injunction decree was passed against the appellant in a suit filed by the 1st respondent, the appellant has filed an application to set aside the ex parte decree, which is pending consideration. In the above situation, the appellant has instituted the present suit. Along with the suit, she filed an application for temporary injunction to restrain the respondents from alienating, encumbering or leasing out the petition ‘A’ schedule property, or committing any waste therein, until the disposal of the suit. By the impugned order, the Trial Court has dismissed the application. The appellant contends that the impugned order is ex facie erroneous. Hence, the appeal.

I have heard the learned counsel for the appellant and the learned counsel for the respondents.

The learned counsel for the appellant reiterates the contentions raised in the memorandum of appeal. He submits that the appellant filed the application to preserve the subject-matter property, as she apprehends that the respondents may commit waste in the property. He submits that the appellant has satisfied the trinity parameters governing the grant of a temporary injunction; nevertheless, the Trial Court dismissed the application principally on the ground that the appellant suppressed the fact of the ex parte decree passed in O.S.No.104/2015. He further submits that the appellant had entrusted the matter to a counsel, who failed to inform her about the ex parte decree. In any event, the appellant’s application to set aside the ex parte decree is pending consideration. The other contentions raised by the respondents, particularly the alleged Will executed by the appellant’s father in favour of the 1st respondent, are disputed questions of fact, which are to be adjudicated in the suit. He submits that, unless this Court passes an order of temporary injunction, the respondents may commit waste of the property, thereby diminishing its value.

The learned counsel for the respondents vehemently opposes the appeal. He submits that the civil court had already injuncted the appellant from entering the petition schedule property and that the said finding operates as res judicata against her. According to him, the appellant has suppressed the said material fact and instituted the present suit. He submits that there is no error or illegality in the impugned order and prays that the appeal be dismissed.

The appellant and the 1st respondent are the children of late Lazer. According to the appellant, Lazer died intestate; whereas, according to the 1st respondent, his father had executed a Will in his favour. The validity and effect of the alleged Will is an issue to be adjudicated in the suit. The principal contention of the respondents is that, since an ex parte decree is passed against the appellant in O.S.No.104/2015, restraining her from entering the plaint schedule property, she is not