Madhya Pradesh High Court
Danish S/O Mirza Salim Baig Minor ... vs Mohammad Ajhar on 10 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:25758
1 MP-4348-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
MISC. PETITION No. 4348 of 2023
DANISH S/O MIRZA SALIM BAIG MINOR THROUGH THEIR GUARDIAN
MOTHER FARIDA BEE AND OTHERS
Versus
MOHAMMAD AJHAR AND OTHERS
Appearance:
Shri Nitin Phadke, learned counsel for the petitioner.
Ms. Harshita Ranawat, learned counsel for the respondent Nos. 1 & 2.
Shri Brajesh Kumar Pandya, learned counsel for the respondent Nos. 3 & 4.
Ms. Mradula Sen, learned Govt. Advocate for the respondent No. 5/State.
Heard on : 22.08.2025
Pronounced on : 10.09.2025
ORDER
The present petition has been filed by the petitioner challenging the order
dated 10.05.2023 passed by the Principal District Judge, District Mandsaur passed
in MCA No.822/2022 whereby the Appellate Court has allowed the appeal
preferred by the respondent Nos. 1 & 2 and order dated 14.05.2022 passed by the
trial Court, granted temporary injunction in favour of petitioners/plaintiffs has
been set aside.
2. In short, the facts of the case are that petitioners/plaintiffs have filed a
civil suit for declaration and permanent injunction against the
respondents/defendants in respect of land bearing survey Nos. 97, 98 and 102 total
area 3.270 hectare situated at village Songari, Tahsil and District Mandsaur.
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The petitioners/plaintiffs suit is based on the averments that the plaintiffs jointly,
defendant No. 3 and defendant no. 4 have 1/3 share each in the suit land. It has
been averred that the suit land is a joint |property and the plaintiffs are in its joint
possession with other joint holders. It has been averred that the defendant no. 4 has
executed sale deeds in respect of the specified portions of survey no. 97, 98 in
favour of the defendant no. 1 and 2 on 25.01.2021. The plaintiffs have sought a
declaration that the aforesaid sale-deeds executed by the defendant no. 4 are null
and void and have sought the relief of permanent injunction against the
dispossession from the suit land. The Trial Court after hearing the arguments on
the application for temporary injunction allowed the same vide order dated
14.05.2022. Against which, an appeal was filed by the defendant Nos. 1 & 2
before the Appellate Court, which was allowed vide order dated 10.05.2023. By
aggrieved the said order, present petition has been preferred.
3. It has been submitted by learned counsel for the petitioner that the learned
Appellate Court has committed grave error of law in setting aside the order of trial
Court. Learned Appellate Court has passed the order by holding that an oral
partition had taken place between the joint holders despite there being no material
on record. It has also been submitted that the impugned order has been passed
without considering the findings recorded by the trial Court regarding the
execution of the sale deed without payment of sale price.
4. To support his contentions, he has relied upon the judgment in the case of
Silver Line Education reported in AIR 2010 SC 3221, wherein it has been
observed by Hon'ble Apex Court as under :-
"......once the court of first instance exercises its
discretion to grant or refuse to grant relief of temporary
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injunction and the said exercise of discretion is based upon
objective consideration of the material placed before the court
and is supported by cogent reasons, the appellate court will be
loath interfere simply because on a de novo consideration of
the matter it is possible for the appellate court to form a
different opinion on the issues of prima facie case, balance of
convenience, irreparable injury and equity."
"......unless this Court comes to the conclusion that the
discretion exercised by the High Court in refusing to entertain
the appellant's prayer for temporary injunction is vitiated by
an error apparent or perversity and manifest injustice has been
done to it, there will be no warrant for exercise of power
........".
5. On the aforesaid grounds, no order of injunction can be granted against
the co-sharer as per the dictum of the Apex Court and therefore, the order
impugned is bad in law and deserves to be set-aside by allowing the present
petition.
6. Per contra, refusing the submission of the learned counsel for the
petitioner, the counsel for the respondent has submitted that the disputed property
is the possession of petitioner and respondent Nos. 3 & 4. No partition has been
placed between petitioners and respondent Nos. 3 & 4. Therefore, the trial Court
has rightly opined that the petitioners/defendants are in possession and status quo
in regard to maintaining his possession is just and proper.
7. Heard the learned counsel for both parties and perused the record.
8. In the present case, the petitioners/plaintiffs filed a suit for declaration and
permanent injunction. In para 7 of the trial Court order, the trial Court has recorded
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finding that the petitioners/plaintiffs and respondent/defendant Nos. 3 & 4 are in
possession of the disputed land as well as no oral partition has took place between
them. In spite of that, respondent No. 4 sold the partial disputed property. While
Learned Appellate Court has also mentioned in para 9 of the impugned order that
the name of respondent/defendant No. 4 Anisa Bee is recorded over the disputed
land alongwith Mirza Salim Baig, predecessor in titile of plaintiffs and Mirza
Ismail Baig. According to sale deed dated 25.01.2021, defendant No. 4 Anisa has
transferred her 1/3 share by mentioning specific boundaries. It is also appears that
after death of Salim Bagi his successors Sanno Bee, Vasim Baig and Ruksar Baig
have also transferred their 1/3 share in favour of non-suited party Asif Khan and
Akbar Khan by mentioning specific boundaries of land transferred vide sale deed
dated 01.10.2021. That apart, prima-facie it is shown that oral partition have
already been taken place between the parties. However, from the perusal of the
record available, it is crystal clear that until and unless joint property is divided, it
cannot be said that who is in possession of the suit property and injunction against
the co-owners cannot be issued.
9. Apparently, while recording the aforesaid findings, Appellate Court has
not cared to consider the pleadings made in the plaint as well as in the application.
10. It is well settled that one of the co-owners cannot sell/transfer specific
portion of the joint property and the purchaser of joint property cannot claim
himself to be in possession of specific property until and unless the property is
partitioned. From perusal of impugned order, it appears that the Appellate Court
should have care to consider this aspect of the matter and passed the impugned
orders rejecting the application.
11. Resultantly, present petition is allowed and impugned order dated
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10.05.2023 passed by Appellate Courts being unsustainable is set aside and matter
is remanded to trial Court for deciding the application under Order XXXIX Rule 1
& 2 CPC afresh without being influenced by the impugned orders and by the order
passed by this Court today.
12. With a view to preserve the nature of property, it is also ordered that till
decision of application under Order XXXIX Rule 1 & 2 CPC by Appellate Court,
the respondents/defendants shall not make any interference over the property and
are hereby restrained from raising construction over it and also from alienating the
same to others.
13. With the aforesaid, this misc. petition is allowed and disposed off.
14. I.A., pending if any, shall stand closed.
(ALOK AWASTHI)
JUDGE
Vindesh
