Allahabad High Court
Virendra Kumar vs Additional District Judge ... on 23 May, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 08.05.2013)
(Judgment delivered on 23.05.2013)
Court No. - 28
Case :- WRIT - C No. - 23421 of 2013
Petitioner :- Virendra Kumar
Respondent :- Additional District Judge Ct.No.1 And 6 Others
Petitioner Counsel :- Kshitij Shailendra,Vishal Tandon
Respondent Counsel :- Sushant Misra
Hon'ble Sibghat Ullah Khan,J.
Heard Sri K. Shailendra, learned counsel for petitioner and Sri S. Mishra, learned counsel for respondents No.2 & 3.
Petitioner is plaintiff in O.S. No.307 of 2008, Virendra Kumar Vs. Prem Shanker and 11 others. Relief claimed in the plaint is for decree of permanent prohibitory injunction seeking to restrain the defendants No.1 to 10 from interfering in the possession of the plaintiff over the land in dispute comprised in Plot No.623, area half acre and from making construction thereupon. Along with the plaint, application for temporary injunction was also filed. Trial Court/ Civil Judge (S.D.), Kannauj through order dated 14.09.2011 disposed of the temporary injunction application of the plaintiff and directed both the parties to maintain status quo over the land in dispute till the disposal of the suit. Against the said order, respondent No.2 and 3, Sanjiv Kumar and Vivek Kumar filed Misc. Civil Appeal No.27 of 2011. A.D.J., Court No.1, Kannauj allowed the appeal through order dated 02.04.2013, set aside the order of the trial court dated 14.09.2011 and rejected the temporary injunction application of the plaintiff. The order of the lower appellate court has been challenged through this writ petition.
Plaintiff and defendants No.11 & 12, Devendra Kumar and Rajendra Mohan are real brothers. Respondents No.2 & 3 purchased a small specific part of the property in dispute from Devendra Kumar, real brother of the petitioner on 12.07.1982. They had purchased another small specific part of the property in dispute on 27.01.1982 from Smt. Bina Devi the purchaser from Devendra Kumar through sale deed dated 04.12.1981. Both parts constitute a very small portion of the entire land. Total sale consideration paid by respondents No.2 & 3 was Rs.40,000/-. The grievance of the petitioner plaintiff is that without partition his brother could not sell specific portion of the plot in dispute.
No suit for cancellation of the sale deeds has been filed by the plaintiff. Even in the suit giving rise to the instant writ petition no prayer either for cancellation of the sale deeds or for partition has been made. Lower appellate court also mentioned that in the year 1983, plaintiff filed O.S. No.482 of 1983 for injunction against several defendants of the suit giving rise to the instant writ petition including defendants No.5 & 6/ respondents No.2 & 3 in this writ petition. In the earlier suit they were defendants No.1 & 2. The said suit was dismissed on 09.12.1983 in default and restoration application was also dismissed on 27.04.2000 but nothing was stated about the said suit in the suit in question. Learned counsel for petitioner argued that after filing of the earlier suit of 1983, defendants of the same stopped interfering in the possession of the plaintiff, hence the said suit was abandoned. This argument cannot be accepted. If compromise had taken place, it should have been filed in the said suit.
In the plaint, absolutely nothing was stated regarding the sale deeds by Devendra Kumar in favour of different defendants. It was also nowhere stated that there was any clash between plaintiff and his brothers, defendants No.11 & 12. It was stated in para-4 of the plaint that defendants No.11 & 12 were being made proforma defendants. It was also stated that even though land in dispute was entered in the revenue record, however it had become abadi land. Lower appellate court has mentioned that on 10.11.1981 also Devendra Kumar had executed a sale deed of a specific portion of the land in dispute in favour of Rajpati and others and in the said sale deed plaintiff petitioner was a witness which amounted to his admission that formal/ mutual partition had taken place in between the brothers.
I do not find least error in the impugned order. Plaintiff was aware of the sale deeds as in the year 1983, he had filed suit still he did not mention the said fact in the plaint. The earlier suit had been dismissed in default. No mention regarding that was made in the plaint. All these things were brought on record by the defendants. Supreme Court in Kochunju Nair Vs. Koshy Alexander, AIR 1999 SC 2272 has held that without a suit for partition, injunction cannot be granted against a co-owner. In this regard reference may be made to 2008 (3) ALJ 476 also. Accordingly, even if it is assumed that there was no partition in between the plaintiff and his real brothers still purchasers of plaintiff's brother would be co-sharers. There being no relief for cancellation of the sale deed or for partition, no injunction could be granted to the plaintiff petitioner.
Accordingly, writ petition is dismissed.
Order Date :- 23.05.2013
NLY
