Ajai & Another vs 5th Additional District Judge, Azamgarh

Temporary injunction was granted by an order dated 9th November 1995 passed by the learned Civil Judge, Junior Division, Mohamdabad, district Azamgarh in Suit no. 557 of 1993. The defendant no. 4 filed an appeal being Appeal no. 162 of 1995. The Additional District Judge, Vth Court, Azamgarh by an order dated 25.1.1997 allowed the said appeal and reversed the interim order granted.

A counter claim has been lodged by the defendant no. 4 seeking partition and delivery of possession on the ground that the plaintiff had admitted one third share in the property and the defendant no. 4 had purchased two third share in the property from his cosharer. Dr. Padia, learned counsel opposing the present revisional application contended that the plaintiffs can not claim possession over two third share of the property since according to the plaintiff''s own admission they are owner of one third share. Therefore, even if assuming but not admitting that the plaintiffs are in possession of balance two third share also, in that event such possession is illegal. The plaintiff can not claim possession against the rightful owner namely the defendant no. 4 who had acquired interest in respect of two third property. Therefore, according to him the suit can not be maintained and, therefore, injunction can not be granted.

Sri A.K. Srivastava, learned counsel for the petitioner on the other hand contended that the property is family dwelling house, which has not been partitioned, as apparent from the very prayer made in the counter claim for partition and possession by the defendant no. 4 who is a stranger to the family. By reason of his acquisition of the property he can at best enforce partition but he has no right to enter into possession of the family dwelling house.

This proposition is being disputed by Dr. Pad learned counsel for the respondent that in the plaint it has been admitted that the property consists of considerable quantum of land though on a part of which might be building. Therefore, the said proposition as raised by the learned counsel for the petitioner can not be sustained.

Dr. Padia, learned counsel for the respondent relies on the case of Mahadev Sarlaram Shelke v. Pune Municipal Corporation and others. 1995 (3) SCC 33 in support of his contention that no injunction can be granted in favour of a person who is in illegal possession against the rightful owner. He stressed his contention relying on para 9 of the said judgment.

I have heard the learned counsel for the parties at some length. So far as the proposition advanced by Dr. Padia that injunction can not be granted in favour of a person who is in illegal possession against rightful owner is concerned there is no manner of doubt and the same is absolutely a clear proposition well settled in law inasmuch as one can enforce or defend his possession against all except the rightful owner, However, in the present case, the said proposition can not be attracted in view of peculiar facts and circumstances of the case at hand. Herein admittedly the partition and possession has been sought in the counter claim which admittedly shows that despite acquisition of the property the defendant is not in possession, by reason whereof he had sought for delivery of possession that too after partition. At this stage it is not possible to decide as. to whether there has been partition and as to whether the defendant no. 4 had acquired demarcated portion or not.

Prima facie it appears that the suit property is a joint property in which admittedly the plaintiff has one third share while the defendant no. 4 had been claiming to have acquired two third share from the other coowners and spekitig to enforce partition, and delivery of possession by means of his counterclaim. The very prayer for partition and delivery of possession by the defendant no. 4 presupposes that he is not in possession. Until a joint property is partitioned a coowner remains in joint possession of every part of the joint property and is entitled to common or part enjoyment thereof accordingly subject to such arrangement as between the coowners. By reason of Section 44 of the Transfer of Property Act a transferee acquiring share or interest of one or more coowner in a joint property acquires the transferor''s right to joint possession or other common or part enjoyment, therein and to enforce partition except in respect of a share of a dwellinghouse belonging to an undivided family if the transferee is not a member of the family.

Admittedly the defendant no. 4 is not a member of the family. From the pleadings of the parties as pleaded in the plaint and the written statement filed by the parties, as is appearing from the materials placed before this court primafacie the suit property appears to be a family dwelling house belonging to undivided family qua the property in question. Now whether the entire property forms part of the family dwelling house or not, as disputed by the defendant no. 4, is a question can be determined only when there are sufficient material or evidence on record. At present there is no material shown to this court by the defendant no. 4 so as to enable the court, primafacie come to a finding that some or other part of the property do not form part of the family dwelling house.

At this stage it is not possible to determine as to whether the entire land formed part of the dwelling house or not. The only right as Primafacie appears to be available to the defendant no. 4 is the right to enforce partition which he had so claimed by means of counter claim. Unless the same is decided it can not be said that one of the cosharer is in illegal possession of the balance two third share, since it has not been pleaded that there has been partition. If the property remained joint, the joint owner May be owner of part of a share, but still then he has right over every inch of the property so long it is not partitioned. Therefore, it can not be said that the possession of the plaintiff is illegal as against the defendant no. 4, a stranger purchaser. However all the above observations are tentative in nature and subject to decision by the learned Trial court at appropriate stage.

So far as the present case is concerned it appears that primafacie case has been made out as has been found by the learned Munsif Magistrate. The lower appellate court did not consider the said aspect of the matter, as has been found by the learned trial court. A perusal of the order of the learned trial court, as has been sought to be translated at the bar, shows that he has considered the facts and circumstances of the case and relied on the various materials placed before him and laid come to a conclusion that primafacie case was made out. The reason by which the said reasoning given by the learned trial court was reversed by the learned lower appellate court does not appear to be reasonable, in my view the finding of the learned lower appellate court appears to suffer from material irregularity and illegality causing grave Injustice to the plaintiff.

In the facts and circumstances of the case the order passed by the learned lower appellate court is hereby set aside and that of the learned Munsif is restored.

However, in the facts and circumstances of the case it is desirable that the suit should be decided expeditiously as early as possible, preferable within a period of one year from the date a certified copy of this order is produced before the learned trial court since admittedly issues have already been settled.

However, it will be open to the defendant no. 4 to claim damages for the period during which he has been deprived of possession by the plaintiff and if such claim is made before the learned trial court the same may be dealt with in accordance with law.

With these observations the writ petition is disposed of. There will, however, be no order as to costs.

Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.

(Petition allowed)