Ram kumar vs Dhyan Singh

Ram Surat Ram (Maurya), J.—Heard Sri I. D. Mishra holding brief of Ms. Shivangi Bhargava for the petitioner ad Shri Prakash Singh for the caveator.

This petition has been filed against the order of District Judge dated 4.2.2016 by which he has allowed the Misc Appeal filed against the order of Additional Civil Judge dated 2.11.2015 rejecting the application for interim injunction in the suit and restraining the defendants from interfering in the possession of the plaintiff over the shops in dispute.

The arguments of the counsel for the petitioner that suit was filed in respect of eight shops situated on plot no. 259 (area 0.239 hectare) of Village Badli,Tehsil Tanda, Distt. Rampur. The petitioner was recorded tenure holder in the aforesaid plot. There has been no partition between the co-sharer as such no injunction can be granted. Accordingly the trial court by order dated 2.11.2015 relying upon the judgment of Supreme Court in Gokul v. Sitaram AIR 1983 SC 742 held that there cannot be any injunction against co-sharer and rejected the application for interim injunction of the respondent but the appellate court has illegally allowed the appeal without considering the fact that the land in dispute is joint property in which name of the petitioner is still recorded.

I have considered the arguments of the counsel for the parties and examined the record.

The suit was filed in respect of eight shops as well as in respect of land in possession of the plaintiff. A perusal of the written statement of the petitioner shows that apart from plea that land in dispute is an agricultural property as such civil suit is not maintainable and there has been no partition between the co-sharer as such suit for partition under Section 176 of UP Act No. 1 of 1951 alone is maintainable, no other plea has been raised by the petitioner. So far as the shops in dispute are concerned, in the written statement, the defendant has never claimed that shops in dispute were constructed by all the co-sharers or by him alone. Thus the petitioner cannot claim any right or ownership in respect of the shops in dispute.

So far as the claim of the petitioner that he was co-sharer of the land in dispute is concerned, the appellate court has categorically recorded a finding that share of the petitioner in the land in dispute is 1/8. The petitioner has sold an area of 246 sq. meters of the land in dispute on 29.12.1992 and further he sold an area of 58.50 sq. meters through sale deed dated 16.5.1985. Thus he has already sold the land much more than his share and left with no interest in the land in dispute. The findings of fact recorded by the appellate court do not suffer from any illegality. The petitioner has left with no interest over the property in dispute as such injunction has been rightly granted.

No interference is required by this Court. Petition is dismissed.