K.S. Gupta, J.

1. This appeal by Ranbir Singh and Smt. Prem Wati, appellants- plaintiffs is directed against the order dated 30th January, 1996 of a learned Single Judge dismissing IA. No. 11278/95 and allowing I.A. No. 12426/95.

2. Suit for partition and separate possession of property bearing No. 1-114, Kirti Nagar etc. has been filed by the appellants, inter alia, on the allegations that Ch. Than Singh, father of the appellants, Attar Singh, Tej Singh and Smt. Phool Wati, respondents No. 1 to 3, died on 10th June, 1987 intestate. Their mother Smt. Chhanno Devi also expired intestate on 1st July, 1993. Ch. Than Singh left behind, amongst others, said two and a half storeyed house constructed on a plot of land admeasuring 353.4 sq. yards. Respondents No. 1 and 2 are residing in different portions of the above property. Some of the portions of the property are also in occupation of Praveen Kumar and Bhim Sain Dewan, tenants, respondents No. 5 and 6. Sohan Lal Kochhar was also a tenant in the said property in respect of one drawing-cum-dining, two bed rooms, two bath rooms and kitchen on the first floor in the rear portion on a monthly rent of Rs. 1700. He handed over its vacant possession to appellant No. 1 on 28th October, 1995 besides paying Rs. 32,300 being arrears of rent from April 1, 1994 to October 31, 1995 and since then appellant No. 1 is in actual possession thereof. That portion is shown by letters JKLM in the site plan annexed with the plaint. After the death of the parents appellants and respondents 1 to 3 have become entitled to 1/5 each in the said property by operation of law. It is alleged that respondents No. 1 and 2 have been collecting rent from respondents No. 5 and 6. They also collected rent from Sohan Lal Kochhar upto 30th March, 1994. But they have not given share of the rent received to any of the appellants. Respondents No. 1 and 2 are liable to partition said property No. I-114, Kirti Nagar and also to render accounts of the rents received by them from respondents No. 5 and 6 and also from Sohan Lal Kochhar.

3. In the suit I.A. No. 11278/95 under Order 39 Rules 1 and 2, CPC was also filed and vide order dated 6th November, 1995 ex parte ad interim injunction was issued against respondents No. 1 to 3 restraining them from disturbing the possession and enjoyment of the portion of the said property shown by letters JKLM in the plan filed along with the plaint.

4. Respondent No. 2 has contested the suit by filing written statement. It is admitted that Ch. Than Singh died on 10th June, 1987 while Smt. Chhanno Devi expired on 1st July, 1993 but it is denied that Ch. Than Singh died intestate, as alleged. It is stated that appellant No. 1 and respondent No. 3 filed Suit No. 201/88 - Smt. Phool Wati and Another v.Smt. Chhanno Devi and Ors. against respondents Nos. 1 & 2 and appellant No. 2 for permanent injunction on 7th May, 1988 in the Court of Sh. H.S. Sharma, Sub-Judge, Delhi and that suit was based on a Will allegedly executed by late Ch. Than Singh on 22nd April, 1987. Copy of that Will was never filed in the Court though it was shown to respondent No. 2. As per the said Will entire first floor. and the half portion on the ground floor of said property No. I-114, Kirti Nagar was bequeathed in favour of respondent No. 2. It is admitted that Sohan Lal Kochhar was a tenant in a portion of the said property. However, it is alleged that rent payable by Sohan Lal Kochhar was attached by the MCD w.e.f. 4th October, 1993. It is emphatically denied that Sohan Lal Kochhar vacated the accommodation in his tenancy and handed over vacant possession thereof to appellant No. 1 on 28th October, 1995 besides paying to him Rs. 32,300 being arrears of rent, as alleged. It is stated that the household articles of Sohan Lal Kochhar are still lying there and a part of the tenanted accommodation is lying locked. It is further pleaded that respondent No. 2 filed a suit being No. 565/95 for permanent injunction against Sohan Lal Kochhar on 14th September, 1995 for restraining him from parting with possession of the accommodation in his tenancy to anyone else which is still pending before Sh. Rajesh Aggarwal, Sub-Judge, Delhi. It is emphatically denied that appellants are entitled to any of the reliefs claimed in the suit.

5. I.A. No. 11278/95 was opposed by respondent No. 2 by filing a reply. He further moved I.A. No. 12426 /95 under Order 39, Rule 4 read with Section 151, CPC for vacating the ex parte ad interim injunction granted to the appellants on 6th November, 1995 on the pleas identical to those taken in the written statement.

6. Ex parte ad interim injunction order dated 6th November, 1995 was vacated in terms of the impugned order dated 30th January, 1996 on two grounds(i) Appellants have falsely alleged that Ch. Than Singh died intestate. As per own averment made by appellant No. 1 particularly in para 5 of the plaint of Suit No. 201/88, he left behind a Will dated 22nd April, 1987 by which he bequeathed business of Chaudhary Motors along with tenancy rights of premises No. L-II/1, Connaught Circus, New Delhi to appellant No. 1 and respondent No. 3 in equal shares; (ii) Appellants being joint owners along with respondents 1 to 3 of property No. I-114, Kirti Nagar cannot seek injunction against respondents 1 to 3 for restraining them from taking possession of the joint property vacated by Sohan Lal Kochhar, tenant.

7. Respondent No. 2 has filed certified copy of the plaint of said Suit No. 201/88. As is evident from the averments made therein that suit was filed for restraining respondents 1, 2 and 4, appellant No. 2 and Smt. Chhanno Devi from interfering with the possession of appellant No. 1 and respondent No. 3 in respect of shop No. L-II/1, Connaught Circus and also the business of Chaudhary Motors being carried out in that shop. Said shop No. L-II/1 was in the tenancy of Ch. Than Singh who was running business therein in the name of Chaudhary Motors. Inheritance of tenancy etc. in respect of the above shop was claimed on the basis of a Will alleged to have been executed on 22nd April, 1987 by Ch. Than Singh in favour of appellant No. 1 and respondent No. 3. Said Suit No. 201/88 is stated to have been got dismissed in default by appellant No. 1 and respondent No. 3 implying thereby that the claim made therein based on the said Will was abandoned by them. That being so, execution of the alleged Will dated 22nd April, 1987 could not have been made as one of the grounds for dismissing I.A. No. 11278/95.

8. Coming to the second ground referred to above, appellants have filed two writings and also copies of the plaint and the written statement of Suit No. 565/95. One of the writings dated 28th October, 1995 under the signature of Sohan Lal Kochhar shows that Sohan Lal Kochhar handed over possession of the accommodation in his tenancy in property No. I-114, Kirti Nagar on 28th October, 1995 to appellant No. 1 besides paying Rs. 32,300 to him as arrears of rent for 19 months. In token of having received the vacant possession and also Rs. 32,300 from Sohan Lal Kochhar, another writing dated 28th October, 1995 seems to have been executed by appellant No. 1. It may be noticed that there is mention in the written statement filed by respondent No. 2 in this case that he filed Suit No. 565/95 against Sohan Lal Kochhar restraining him from parting with possession of the accommodation in his tenancy forming part of said property No. I-114, Kirti Nagar. By way of preliminary objection No. 1 in the written statement filed in said Suit No. 565/95 Sohan Lal Kochhar has pleaded that he handed over vacant possession of the tenanted accommodation to appellant No. 1 on 28th October, 1995. Although in the written statement respondent No. 2 has denied of Sohan Lal Kochhars having delivered possession of the accommodation in his tenancy to appellant No. 1 but both the above writings dated 28th October, 1995 and also the plea taken in the written statement by Sohan Lal Kochhar in Suit No. 565/95 prima facie establish that Sohan Lal Kochhar did hand over possession on 28th October, 1995 of the tenanted accommodation to appellant No. 1 who continues to be in possession thereof till date. If any co-sharer is in exclusive possession of a joint property he can preserve his possession by seeking protection of the Court till partition of the joint property. Therefore, the circumstance of appellant No.1being joint owner of the suit property along with the respondents 1 to 3 ought not to have been considered against him while passing the impugned order. Appellant No. 1 has successfully made out a case for grant of the ad interim injunction prayed for. Impugned order is, therefore, liable to be set aside.

9. As property No. 1-114, Kirti Nagar is joint, interest of respondents 1 to3 also needs to be safeguarded by placing restriction on sale etc. thereof by the appellants.

10. Appeal is allowed and the order dated 30th January, 1996 is set aside. I.A, No. 11278/95 is allowed and I.A. No. 12426/95 is dismissed. Pending suit respondents 1 to 3 are restrained from disturbing appellant No. 1s possession and enjoyment of the portion of the said property covered by letters JKLM as shown in the plan annexed with the plaint. However, appellants are also restrained during pendency of the suit from transferring, encumbering or parting with possession thereof in any manner whatsoever.