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Judgment
Manoj Kumar Gupta, J—The petitioner, aggrieved by order dated 14 August 2015 passed by the Additional District Judge, Court No. 1, Bhadohi, Gyanpur in Misc. Civil Appeal No. 15 of 2015 whereby, the parties have been directed not to raise any new constructions over the suit property unless partition by metes and bounds takes place, has approached this Court challenging the same by invoking supervisory jurisdiction under Article 227 of the Constitution of India.
Plaintiff respondent instituted Original Suit No. 75 of 2015 for permanent prohibitory injunction restraining the petitioner, who was arrayed as defendant No. 1, from raising any construction over the joint property of the parties or from interfering in the possession of the plaintiff and proforma defendant Nos. 2 to 11. He also filed an application for temporary injunction. It was rejected by the trial Court by order dated 28 February 2015 primarily on the ground that the parties are joint tenure holders and no injunction can be granted against a co-owner. Certain observations were made to the effect that complete description of the suit property has not been given in the plaint and, as such, it is not possible to identify the same. Aggrieved by the said order, the plaintiff respondent preferred Misc. Appeal No. 15 of 2015. It has been allowed by the Appellate Court and the parties have been restrained from raising any new construction over any portion of the suit property without getting a partition done.
Learned counsel for the petitioner contended that no injunction could be granted against a co-owner and as such, the order of the Lower Appellate Court is manifestly illegal. In this regard, he has placed reliance on the following decisions:--
"1) Kochkunju Nair Vs. Koshy Alexander and Others, AIR 1999 SC 2272 : (1999) 2 JT 393 : (1999) 2 SCALE 254 : (1999) 3 SCC 482 : (1999) 2 SCR 169 : (1999) AIRSCW 2326 : (1999) 3 Supreme 157 ;
2) Virendra Kumar Vs. Addl. District Judge Court No. 1, (2013) 98 ALR 855 : (2014) 122 RD 330 ;
3) Smt. Urmila Devi Vs. Pooran Chand Dabar and others, (1999) 1 AWC 655 ."
On the other hand, learned counsel for the respondent has placed reliance on a decision of this Court in the case of Om Pal Singh Versus Raj Krishna : 2010 (110) RD 391, wherein this Court has held that a purchaser, who is an outsider, has only got a right to enforce a partition and he is not entitled to obtain possession of what he has purchased.
Concededly, petitioner is a purchaser of undivided share of Shanti Devi by registered sale deed dated 16 October 2010. Shanti Devi, was admittedly one of the co-tenure holders. It is not in dispute between the parties that there has been no partition by metes and bounds between them. In such view of the matter, in the opinion of the Court, the Lower Appellate Court was fully justified in restraining the petitioner, who is only a purchaser of an undivided share, from raising constructions over any specified part of the suit property, without getting a partition done. In fact the Appellate Court has, in order to balance the equities has restrained both the parties from raising constructions.
The Supreme Court, in Ramdas Vs. Sitabai and Others, AIR 2009 SC 2735 : (2009) 8 JT 224 : (2009) 8 SCALE 654 : (2009) 7 SCC 444 : (2009) 9 SCR 1106 : (2009) AIRSCW 4365 : (2009) 4 Supreme 698 , held that although a co-sharer has a right to transfer his undivided share, but he cannot put a vendee in possession of his share sold by him. For coming to such conclusion, their Lordships of the Supreme Court revisited the law on the subject in the following words:--.
"17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in Mamidi Venkata Satyanarayana Manikyala Rao and Another Vs. Mandela Narasimhaswami and Others, AIR 1966 SC 470 : (1966) 1 SCR 628 , wherein this Court stated as follows:--
"5..... Now, it is well settled that the purchaser of a co-parcener''s undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue 8 for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the coparcener whose share he had purchased."
It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh and Others, AIR 1953 SC 487 : (1954) 1 SCR 177 , wherein this Court held as under:--
"11..... All that (vendee) purchased at the execution sale, was the undivided interest of coparcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour
(Emphasis added)
In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court."
The aforesaid judgment was followed in Gajara Vishnu Gosavi Vs. Prakash Nanasahed Kamble and Others, (2009) 13 JT 432 : (2009) 13 SCALE 33 : (2009) 10 SCC 654 : (2009) 14 SCR 569 : (2009) 10 UJ 4637 and thereafter the logic behind the proposition expounded was explained thus:--
"12. There is another aspect of the matter. An agricultural land belonging to the coparceners/co-sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/illegal as various statutes put an embargo on fragmentation of holdings below the prescribed extent.
Thus, in view of the above, the law emerges to the effect that in a given case an undivided share of a co-parcener can be a subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers."
The decision cited by the petitioner''s counsel in the case of Kochunju Nair Versus Koshy Alexander (supra) lays down that a co-sharer has a right to raise construction over the portion in his possession and at the time of partition, he can claim allotment of such portion to him. It is not a case of a purchaser of undivided share, as is the case in hand, and thus has no application.
The judgment in case of Urmila Devi Versus Pooran Chand Dabar (supra) does not lay down any proposition of law which may support the petitioner, except for being a decision on the facts of that case.
The next decision cited in the case of Virendra Kumar Versus Additional District Judge, Kannauj (supra) is also not applicable to the facts of the instant case. Therein, it was found that a formal mutual partition had taken place between the parties. As such, there was no difficulty in the way of the vendor in coming into possession of specified part of the property purchased by him. In the instant case, none of the courts below have believed the theory of alleged mutual partition; rather, the trial Court, which refused the injunction, also held that there being no partition, both the parties will be treated to be in joint possession of every inch of land.
In view of the above, this Court does not find any illegality in the impugned order of the Lower Appellate Court.
The petition lacks merit and is dismissed.
In the end, learned counsel for the petitioner submitted that the suit may be directed to be decided expeditiously.
Considering the facts and circumstances of the case, it is desirable that the trial Court may decide the suit expeditiously.