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Jagat Ram v. Dashrath - WRIT - C No. 21617 of 2006 [2006] RD-AH 8790 (2 May 2006)


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Civil Misc.Writ Petition No. 21617 of 2006

Jagat Ram ......... Petitioner


Dashrath ......... Respondents.


Hon'ble Sabhajeet Yadav, J.

By this petition the petitioner has challenged the order dated 10.2.2006 passed by Addl. District and Sessions Judge, Allahabad contained in Annexure 8 to the writ petition and order dated 28.9.2004 passed by Civil Judge, Junior Division, Allahabad contained in Annexure 6 to the writ petition. Vide order dated 10.2.2006 the petitioner's Misc. Appeal arising out of order of ad interim injunction granted by Civil Judge, Junior Division vide order dated 28.9.2004 was dismissed by the court below.

The brief facts having material bearing to the question in controversy involved in the case are that the respondent has instituted a civil suit in the court of Civil Judge, Junior Division, Allahabad numbered as Suit No.1959 of 2004 claiming partition and permanent injunction against the petitioner who was defendant in the suit. The suit was filed with the allegations that Plot no.28/1 area 8 Biswa 10 Dhur of village in question is situated as Abadi plot, out of which half share belongs to Ram Dular etc. and ¼ share belongs to the plaintiff respondents and 1/8 share belongs to the defendant petitioner and 1/8 share belongs to brother of petitioner namely Shrawan Kumar alias Pandhari. It is alleged that in the aforesaid plots the co-tenure holders are living by constructing their dwelling houses, Madha, Charahi etc. and also planted trees thereon by mutual understandings, but the partition according to law has never taken place by meets and bounds. The petitioner has started construction over the plot in question and also started cutting the trees standing thereon by ousting other co-tenure holders from the land in dispute, thus necessity arose for instituting a suit for partition and permanent injunction. During the pendency of the suit the plaintiff respondent has also moved an application under Order 39 Rule 1 C.P.C. for granting ad interim injunction restraining the petitioner defendant from cutting down the trees standing over the plot in dispute and from making any construction thereon. The aforesaid application was supported by an affidavit wherein the allegations contained in the plaint have been reiterated by the plaintiff respondent. After exchange of affidavits between the parties and providing hearing to them the trial court vide judgment and order dated 28.9.2004 has directed the parties to maintain status quo over the plot in dispute. Feeling aggrieved against which the petitioner filed Misc. Appeal, which was numbered as Misc. appeal No. 242 of 2004 which too was dismissed by the Addl. District and Sessions Judge, Allahabad vide impugned judgment and order dated 10.2.2006, hence this petition.

I have heard Sri R.C.Singh and Sri S.P.Yadav, learned counsel for the petitioner and Sri A.M.Pandey for the respondents.

Challenging the order impugned in the writ petition learned counsel for the petitioner has submitted that it is not in dispute that the land in question belongs to several co-tenure holders as indicated in the plaint itself, but while instituting the suit only one co-tenure holder i.e. the petitioner alone has been impleaded as defendant in the suit and other co-tenure holders were not impleaded either as plaintiff or defendants, therefore the suit for partition and perpetual injunction is not maintainable on account of  mis-joinder and non-joinder of necessary parties, because of the simple reason that all co-tenure holders are necessary party to the suit. He further submitted that since the property belongs to several co-tenure holders jointly, therefore, the possession of one co-tenure holder is presumed to be possession of all co-tenure holders and suit for permanent injunction in principle by one co-tenure holder against other co-tenure holders is not maintainable. It is also submitted by the learned counsel for the petitioner that according to the plaint allegations itself the partition has already taken place amongst the co-tenure holders with mutual understanding which is as good as partition by the court and is binding between the parties, therefore for the same property in dispute another suit for partition between the same parties is misconceived and liable to fail. In view of the aforesaid facts and circumstances of the case, the learned counsel for the petitioner has further strenuously urged that since the suit itself is bad on aforestated grounds, thus  and there appears no hope of any success in the suit rather it is frivolous  and without sufficient factual foundation with the allegations that the petitioner defendant is ousting all other co-tenure holders including the plaintiff respondent from suit property therefore  the suit for perpetual injunction against the petitioner defendant is wholly misconceived and liable to fail. In such facts and circumstances of the case the trial court while granting ad interim injunction directing the parties to maintain status quo over the plot in question is wholly erroneous, misconceived and not sustainable in the eye of law and so also appellate court has failed to appreciate the issue in its correct perspective therefore for the same reasons the findings recorded by the lower appellate court is also erroneous and not sustainable in the eye of law, accordingly the judgment and order passed by both the courts below are liable to be set aside by this Court.

The learned counsel for the petitioner has also placed reliance upon reported decisions in the case of Kanakarathanammal Vs. V.S.Leganatha Mudaliar and another, AIR 1965 SC 271 (V 52 C 48), (Smt.) Kusum Gupta and others Vs. (Smt.) Sarla Devi and others 1988 R.D. 321, Syed Mohd. Mohsin Rizvi and others Vs. State of U.P. and others AIR 1979 ALLAHABAD 234 (Lucknow Bench), K.P.M.Aboobucker Vs. K.Kunhamoo and others AIR 1958 MADRAS 287 (V 45 C 89), union of India Vs. Bakhshi Amrik Singh AIR 1963 PUNJAB 104 (V 50 C 28. The submissions of the learned counsel for the petitioner appear to be misconceived and misplaced, therefore has to be rejected for the reasons stated hereinafter.

So far as the question of mis-joinder and non-joinder of parties in the suit is concerned, it is to be pointed out that the suit is still pending and if it is found necessary the parties in the proceedings can take steps to cure the aforesaid infirmities of the suit by impleading the necessary parties therefore the aforesaid issue in case of ad interim injunction during the pendency of the suit have hardly any relevance and any impact on the merits of relief claimed for ad interim injunction. So far as the question with regard to the non-maintainability of suit by one co-tenure holder against other co-tenure holder is concern, it is to be pointed out that it is true that one tenure holder cannot seek injunction against other co-tenure holder in joint enjoyment of the property which may be subject matter of the suit but at the same time one co-tenure holder cannot be permitted to oust other co-tenure holder from joint enjoyment and possession of the property and if  one co-tenure holder attempts to oust others, the aggrieved tenure holder can approach the court against such wrongful action by seeking prohibitory injunction therefor, which is dependent upon the facts and circumstances of the case, and could be decided while trying the suit, therefore, suit and application for ad interim injunction during the pendency of suit cannot be thrown out at very threshold on this ground also. Besides this, so far as mutual partition between the parties is concerned lower appellate court has recorded a finding to the effect that no material has been placed by the parties as to whether the partition has  already taken place amongst the parties themselves by mutual understanding and the courts below has also  recorded findings in this regard that this issue can be decided after taking evidence of the parties in the proceedings. However, the title of plaintiff-respondent over the land in dispute has not been disputed therefore there appears no scope for doubt regarding the prima facie case of the plaintiff in suit. So far as the balance of convenience is concerned the lower appellate court has recorded categorical findings to the effect that  grant of ad interim injunction in favour of plaintiff respondents, would not cause any inconvenience to the petitioner defendant as the petitioner has also constructed his dwelling house over the land in dispute and there appears no emergent need for disputed construction over the plot in dispute, thus by evaluating the comparative hardship of the parties the court below has recorded categorical findings that balance of convenience lies in favour of the plaintiff respondents. Besides this in my considered opinion, in case the defendant petitioner is permitted to construct the disputed construction over the disputed plot the plaintiff respondent would suffer irreparable loss and the subject matter of suit would also be destroyed rendering the suit as infructuous and object of filing suit would be defeated ultimately thereby, thus to protect the subject matter of suit the trial court has rightly directed the parties to maintain status quo on spot till the disposal of suit and the court below in appeal has also rightly affirmed the findings of the court below with plausible reasons therefor while dismissing the appeal of the petitioner.

In view of the aforesaid discussions and observations in given facts and circumstances of the case I do not find any error apparent on face of record so as to call for any interference by this Court under Article 226/227 of the Constitution of India. All the above decisions relied upon by the learned counsel for the petitioner are quite distinguishable and do not lend any support to the case of petitioner. Being without merit the writ petition fails and is dismissed.

There will be no order as to costs.




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