Raghunath Dass vs Ranbir Kumar and Others

V.K. Jhanji, J.—Plaintiff Ranbir Kumar is the son of defendant No. 1 and real brother of remaining defendants. The plaintiff filed a suit claiming himself to be joint owner and in possession, along with other defendants, of the property in suit. It was stated in the plaint that in April, 1973, a family settlement had taken place in which, the property in suit was kept joint. He further claimed that defendants have no right to sell the property till the same is partitioned. He therefore, sought a decree for partition of suit land, and for exclusive possession of 1/6th share in the same as well as for consequential relief of permanent injunction restraining the defendants from alienating the property. Alongwith the suit, he also filed an application for ad-interim injunction.

The suit as well as the application was contested by defendant No. 1, i.e. father of the plaintiff who denied that the property is joint Hindu family property, rather he stated that the property was purchased by him vide sale deed dated 27th July, 1960 in his individual capacity and not as Karta of the joint family.

The learned trial Court vide order dated 20th July, 1989 dismissed the application, referred to above, finding no prima-facie case in, favour of the plaintiff. However, on appeal, the Additional District Judge vide order dated 21st December, 1990, restrained the defendants from alienating 1/6th share of the property in suit, till the same was partitioned. Defendant No. 1 being aggrieved of the order of Additional District Judge dated 21st December, 1990, has come to this Court by way of present revision petition.

4 Notice of the revision petition was sent to respondent No. 1 (plaintiff) as well as to his counsel, but it appears from the summons that they are trying to evade service.

After bearing learned counsel for the petitioner, I am of the considered view that this revision petition deserves to succeed.

The plaintiff in his suit has claimed the property to be joint whereas, defendant No. 1 (petitioner herein) has claimed the property to be his individual property on the basis of sale-deed dated 25th July, 1960. For the sake of arguments, even if the averments made in the plaint are taken to be correct, no injunction could be granted in favour of the plaintiff in view of decision by a Division Bench of this Court in Jujhar Singh v. Giani Tarlok Singh (1987) 91 P. L. R. 399, wherein it was held that ad-interim injunction to prevent proposed alienation cannot be granted in favour of the Coparcener as the Coparcener has no right to maintain a suit for permanent injunction restraining manager or Karta from alienating coparcenary property. The Coparcener has right only to challenge alienation of coparcenary property and recover the property after alienation has come into being. A similar view was taken by apex Court reported as Sunil Kumar and Anr. v. Ram Parkash and Ors. (1988) 94 P. L. R. 159 S. C. The suit of the plaintiff for permanent injunction being not maintainable, the Additional District Judge was not justified in granting ad-interim injunction in favour of the plaintiff.

Consequently, the revision petition is allowed. The order of the Additional District Judge dated 21st December, 1990 is set aside, and that of the trial Court is restored with costs which are quantified at Rs. 200/-