Madhya Pradesh High Court
Gulab Singh vs Gajendra Singh on 1 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:5478
1 MA-3859-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
MISC. APPEAL No. 3859 of 2024
GULAB SINGH AND OTHERS
Versus
GAJENDRA SINGH AND OTHERS
Appearance:
Shri Anuj Bhargava, learned counsel for the appellants.
Shri Satya Narayan Vyas, learned counsel for the respondent No.1.
HEARD ON :18.12.2024
POSTED ON : 01.03.2025
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ORDER
This Misc. Appeal under Order 43 Rule 1(r) of the Code of Civil
Procedure, 1908 is preferred being aggrieved by the order dated
07.05.2024 in Regular Civil Suit No.145-A/2024 (Annexure-A/1) by the
4th Additional District Judge, Ujjain whereby appellants/defendants No.
1 to 4 have been restrained to alienate the suit property till the disposal of
civil suit filed by the respondent.
2. Facts of the case in brief are that the respondent no.1/plaintiff
filed a civil suit through plaint (Annexure-A/2) impleading the appellants
as defendant no.1 to 3 & 13 and respondents no.2 to 11 as defendants
no.4 to 12, 14 & 15 seeking declaration of title, permanent
injunction regarding suit land bearing Survey Nos. 74/1, 78, 92/1, 958,
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959, 1172, 1594, 76/1, 76/2, 511, 75/1, 75/2, 75/3, 1570, 1588 in total
admeasuring 51.370 hectares situated at village Tajpur, Tehsil & District
Ujjain. and declaration of nullity of 4 sale deeds dated 05.02.2024
executed by the appellants no.2 to 4 in favour of the appellant no.1
regarding 6.07 (2.37 + 1.39 + 0.21 + 2.10) hectares of the suit property.
3. Facts as mentioned in the plaint in brief are that respondents
no.1 to 10 are the son/daughter of Late Shri Sardar Singh, who died on
14.08.2002 in village Tajpur, Tehsil & District Ujjain. The appellant no.2
to 4 are the grand children of Sardar Singh, who was the father of
Rudrapal. Sardar Singh was the Bhumiswami of 51.370 hectares of
agricultural land as mentioned in para 2 of the plaint and respondent no.1
Gajendra Singh is cultivating the land on behalf of father Sardar Singh in
his life time and after the death of Sardar Singh he was cultivating the
suit land for himself and on behalf of respondents no.2 to 10. Rudrapal
Singh was advocate by profession and he has no time to cultivate the
agricultural land. The respondent no.1/Ganjendra Singh was cultivating
the land on behalf of Rudrapal Singh also. The plaintiff dig a tubewell on
Survey No.1570 and a well on Survey No.1588. The respondent
no.1/plaintiff laid a pipeline for irrigation and obtained a permanent
electricity connection. He also make improvement on Survey No.1172. A
tomb was made on Survey No.1594. The land of Survey No.74/1, 78,
92/1, 73/1, 76/2, 75/1, 75/2 and 75/3 are not fit for agricultural
operations as they are Beehad. The appellant no.2 to 4 sold some land
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(6.07 hectares) and make a plan to alienate other lands without partition.
4. Till now, no partition has been effected. The disputed lands are
in joint Khata. The defendants No.1 to 3/appellants No.1 to 3 have sold
their share in undivided property without partition by executing the sale
deeds on 05.02.2024 and for this purpose, the map of disputed land has
been manipulated without legal process. The suit was filed for declaring
the sale deeds executed by the defendants No.1 to 3 in favour of
respondent No.13 as not binding on plaintiff/respondent no.1 and
declaration of sale deed as null and void and restraining the defendant
No.13/appellant No.1 from further alienation of the suit property and also
filed the application under Order 39 Rule 1 & 2 r/w section 151 of the
CPC (Annexure-A/3) seeking the relief of protection of possession and
restraining from further alienation, till the disposal of the suit.
5. The defendant Nos.1 to 3 replied the application vide Annexure-
A/5 submitting that during the life time of Sardar Singh the disputed
properties were partitioned as per family settlement. The lands allotted to
Rudrapal Singh in this oral partition devolved upon defendant Nos.1 to 3
and Rudrapal Singh was the Bhumiswami of those properties. After the
death of Rudrapal Singh (on 06.07.2022), this suit has been filed
malafidly. The defendant no.13 filed the separate reply through
Annexure-A/6 and opposed the application for temporary application
specifically raising the ground that the allegations in the plaint are vague
and contradictory. The plaintiff on one hand is denying the partition and
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on the other hand, he is claiming the exclusive possession. The plaintiff
was never in exclusive possession of all the properties. One co-owner is
not entitled to obtain the injunction against the other co-owners. The
defendant no.1 to 3 have sold the properties of their ownership. The
defendant No.13 is in possession of the suit property. No relief of
possession has been sought and no suit for partition has been filed. Prima
facie case, balance of convenience and irreparable injury is not in favour
of the plaintiff/respondent no.1.
6. The trial Court found the prima facie case, balance of
convenience and irreparable injury in favour of the plaintiff and issued
an injunction in favour of the plaintiff/respondent no.1 and restrained the
appellants from interfering in the possession of the plaintiff and not to
alienate the property, till the disposal of the suit.
7. Assailing the impugned order, this Misc. Appeal is preferred on
the ground that the trial Court erred in not considering that prima facie
case, balance of convenience and irreparable injury does not exists in
favour of the plaintiff. The trial Court erred in not considering that the
rights of the plaintiff are protected by the provisions of Section 52 of the
Transfer of Property Act. The trial Court erred in granting injunction
against the appellant/defendant no.3 without giving any finding as
regards to the possession. The trial Court erred in granting injunction
against alienation, on the pretext of multiplicity of the suit, without
considering that the defendants no.1 to 3, who sold land to defendant
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No.13, undisputedly has right in the "suit land", and after purchasing the
land defendant no.13 has stepped into the shoes of defendants no. 1 to 3.
The trial Court erred in not considering that the suit of the plaintiff was
not maintainable in view of the provisions of Section 34 of the Specific
Relief Act, 1963.
8. Learned counsel for the respondents have opposed the appeal
and supported the order of the trial Court.
9. Heard the learned counsel for the parties & perused the copy of
Khasra for the year 2023-2024 - 2025 and also perused the order dated
19.01.2024 passed in RCSA No.585/2023 by the 4 th District Judge,
Ujjain. The operative portion of para 2 of the said order is reproduced
hereunder:
"2. ........................वाद
व व0 पाल िसंह के पता व0 ी
सरदार िसंह चौहान का िनधन दनांक 14.08.2022 को हो गया था,
जनके ारा अपने जीवन काल म सभी पु को उनके एकाक
वािम व व आिधप य क कृ ष भूिमय का वभाजन करके सबका
नाम राज व अिभलेख म दज करवा दया था।"
10. The trial Court recorded the finding in para 16 that no
document of partition is on record and disputed land is recorded in the
joint name of plaintiff and defendant nos.1 to 12. Undivided share in
joint property may be transferred but possession of specific portion
cannot be delivered and issued temporary injunction vide para 18.
11. While issuing temporary injunction, the trial Court did not
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considered the legal position as laid down in the the case of T.
Ramalingeswara Rao & Another vs. N. Madhava Rao & Other; (2019) 4
SCC 608. Relevant para 18 of the aforesaid judgment is being
reproduced below:-
"18. Defendant Nos.1 and 2 (appellants herein) being the
purchasers of the suit property from one of the co-sharers stepped
into the shoes of their vendor (co-sharer) and, therefore, had a
right to defend their title and possession against the other co-
sharer."
12. Similarly, the trial Court ignored the legal position as set out in
the case of Sakhahari Parwatrao Karahale & Another vs. Bhimashankar
Parwatrao Karahale; (2002) 9 SCC 608; in which it is held that :-
"3.................................Once a finding is recorded there was no
partition between the members of the joint family, each member
of the joint family is co-sharer and possession of one is the
possession of all. Even if there be exclusive possession of the
plaintiff-respondent before partition, it would be possession on
behalf of all. Thus, it cannot disentitle the defendant-appellant's
claim against the suit property. In view of this it is inconceivable
that injunction could be granted against another co-sharer of the
joint Hindu property as has been done in the present case."
13. Accordingly, the trial Court committed error in issuing
temporary injunction in favour of plaintiff/respondent no.1 regarding
interference in possession.
14. When the suit of the plaintiff/respondent no.1 is based on the
plea that suit property is not partitioned and no specific share of the suit
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property can be sold.
15. The trial Court committedno error in restraining the defendant
no.13/appellant no.4 from further alienating the suit property. The
apprehension of the appellants that the plaintiff/respondent no.1 may
misuse the temporary injunction by adopting the delaying tactics may be
remedied by limiting the duration of temporary injunction.
16. Hence, this Misc. Appeal is partly allowed and the order of the
trial Court dated 07.05.2024 (Annexure-A/1) is set aside to the extent
that directs the appellants from interfering in the possession over the
property on the basis of sale deed and operation of the order prohibiting
the appellants from further alienate the property mentioned in sale deed
dated 06.05.2024 is limited to the period of 18 months from the date of
receipt of certified copy of this order.
17. During this period, both the parties shall close their case and
further extension may be considered by the trial Court only if it finds that
the plaintiff is not responsible for delay in disposal of the suit.
18. In view of the above observation, the Misc. Appeal is disposed
of.
Certified copy as per rules.
(GAJENDRA SINGH)
JUDGE
VS
