Raj Kumar Jain, Vinay Kumar Jain and Others vs Vivek Kumar Jain

Hon''ble Shri Justice A.K. Shrivastava

By preferring this appeal under Order XLIII Rule 1(r) of CPC the order dated 25.02.2011 passed by learned District Judge Narsinghpur in Civil Suit No. 1-A/2011 has been assailed by the defendants whereby the learned Trial Court has allowed the plaintiff''s application under Order XXXIX Rule 1 & 2 CPC and restrained the defendants/appellants from alienating the suit property. The facts necessary for the disposal of this appeal are that a suit of declaration and injunction in regard to immovable property, the description whereof has been mentioned in the plaint, has been filed by the plaintiff claiming a relief that he is having 1/4th share in the entire suit property. An application for issuance of temporary injunction was also filed by him praying that during the pendency of the suit, the defendants be restrained from alienating the suit property.

Learned Trial Court by the impugned order has allowed the application for temporary injunction and has restrained the defendants from alienating the suit property. In this manner this appeal has been filed by the defendants.

The contention of learned counsel for appellants is that although the property is owned by Raj Kumar Jain/defendant No. 1 but even if for the sake of argument the relief which has been prayed by the plaintiff is taken into account at the most plaintiff is entitled for temporary injunction upto 1/4 part in the suit property and therefore the impugned order be set aside.

On the other hand, Shri Verma, learned counsel appearing for plaintiff/respondent argued in support of the impugned order and submitted that since fair questions of facts and law have been raised by the plaintiff, which requires trial, therefore, plaintiff is having prima facie case in his favour and if the suit property is alienated, certainly he will suffer irreparable loss and therefore learned Trial Court rightly allowed the application for temporary injunction. Hence it has been prayed that this appeal be dismissed.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed.

On bare perusal of the relief clause of the plaint it is gathered that plaintiff is claiming only 1/4th share in the suit property. Thus, according to the plaintiff''s own showing even if his suit is decreed, he is entitled to 1/4th share and not more than it and therefore, to me, learned Trial Court in arbitrary manner in exercise of its discretion directed the entire suit property not to be alienated. However, contention of learned counsel for the respondent/plaintiff appears to be correct that defendants cannot alienate the specific portion of the suit property. In this context learned counsel has placed heavy reliance on the Full Bench Decision of this Court Ramdayal Vs. Manaklal,

It is however made clear that this Court has not expressed any view in regard to the right of the plaintiff in the suit property. The learned Trial Court shall be absolutely free to decide whether plaintiff is having any share in the suit property or not.

Thus, by setting aside the impugned order passed by learned Trial Court whereby the defendants have been restrained from alienating entire suit property, the application under Order XXXIX Rule 1 & 2 CPC filed by the plaintiff is partly allowed to the extent that the defendants shall not alienate 1/4th part of the suit property. Further it is hereby held that specific portion of the suit property may not be sold out by the defendants till the suit is decided. Needless to say that if the property in question is sold, the purchasers are not entitled to obtain possession without filing a suit for partition since it has been so held by the Full Bench in Ramdayal (supra). This appeal is allowed and disposed of to the extent indicated hereinabove. No costs.