Arun Tandon and Abhai Kumar, JJ.—Heard Sri Anurag Khanna, assisted by Sri Sumit Daga, on behalf of the appellants and Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Pankaj Agrawal, on behalf of the respondents.
2. This first appeal from order has been filed against the judgement and order of the learned Civil Judge (Senior Division), Aligarh, passed in Original Suit No. 352 of 2014(Khwaja Sharafat Ali & others v. Aayaj Ahmad and others). By means of impugned order the learned Civil Judge (Senior Division), Aligarh, has rejected the temporary injunction application paper No. 7(c) filed by the plaintiff for temporary injunction.
3. From a reading of the order of the trial court, we find that a specific finding has been returned that prima-facie the plaintiff did have a share in the property left behind by Khwaja box, but what was the extent of the share is still to be determined, after the parties exchange their pleadings, but the plaintiff has failed to establish that he was the exclusive owner of the property in question, on prima-facie basis. The trial court has thereafter, proceeded to record that the plaintiff has not been able to establish his possession and therefore, he is not entitled to the order of temporary injunction, as the second essential condition for grant of such injunction namely ''balance of convenience'', does not lie in favour of the plaintiffs.
4. The trial court has not granted temporary injunction, as three essential conditions specified:-
1. Prima-facie case;
2. Balance of convenience;
3. Irreparable loss and injury, which cannot be compensated in terms of money.
5. The counsel for the appellants has contended before us that once it was established on prima-facie basis that the plaintiffs was a co-sharer in the property in question, then the other co-sharer has no right to transfer any specific portion of the joint property, to a third party, without the property being partitioned by metes and bounds.
6. For the purpose reliance has been placed upon the judgement of the Apex Court in the case of ''Jai Singh and other v. Gurmej Singh, reported in (2009) 15 SCC 747''. Reliance has also been made of Hon''ble Apex Court in the case ''Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble and others, reported in (2009) 10 SCC 654'' for the proposition that in absence of partition of the property by metes and bounds, either by a decree of court in a partition suit or by settlement among the co-sharer, possession of separate portion by one of the co-sharer, cannot be given to a vendee. Reliance is also placed upon the judgement of the Apex Court in the case of ''T. Lakshmipathi and others v. P. Nithyananda Reddy and others, reported in (2003) 5 SCC 150 Para 25'' for this preposition, that every co-owner has interest in the entire property, but his interest is subject to the similar interest of other co-owner, and a co-owner cannot take exclusive possession of the property and nor commit an act of waste, ouster or illegitimate use, and if he does so, he may be restrained by an injunction. Reference is also made to the judgement of Apex Court in the case of ''Harish Chander Verma v. Kayastha Pathshala Trust & others'', reported in Judgement Today 1988 (1) SC 625'', wherein the Hon''ble High Court while entertaining a first appeal, against the judgement and decree of the court below had granted an interim order permitting a party to the suit to proceeding to raise construction, and this order was interfered with and the Supreme Court directed the parties to maintain status quo.
7. Learned counsel for the respondents in reply submitted that the application for temporary injunction against the co-owner itself was bad and this Court may therefore, not interfere with the order of the trial court. It is further explained to the Court that the alleged tenants who had joined the plaintiff no.1 in the said suit had been found to be out of possession by the trial court and therefore, the application for temporary injunction, on their behalf was to be rejected. So far as the plaintiff no.1 who claims share in the property is concerned, it is stated that the share of the parties stand determined under the judgement and order dated 02.06.1951 passed in First Appeal No. 393 of 1947. He therefore, submits that the plaintiff cannot claim any right or title over any area in excess of the share which has been pre-determined. It is lastly stated that the defendants are ready and willing to give an undertaking before this Court that whatever constructions are raised during the pendency of the suit proceedings shall be demolish, in case the plaintiffs succeed in the suit and this under taking may be recorded by the Court.
8. Having heard learned counsel for the parties and examined the record of the present first appeal from order, we find that as on date the share of the plaintiff no.1 in the property is not in dispute at least on prima-facie basis and that there is no pleading or material evidence on record to establish that the shares of the co-owner in respect to the property in dispute had been partitioned by metes and bounds, under a decree of the competent court or by means of mutual partition at any point of time.
9. We are therefore, of the opinion that as on date the plaintiff no.1 has rightly contending that he has right over each and every part of the property in dispute being co-sharer and the sale of specific part by one of the co-sharer in favour of the defendant vendee, will not entitle the said vendee to start claiming possession over the particular part of the property in question.
10. In the facts and circumstances of the case, we are also of the opinion that interest of justice would be served by providing that the parties to the suit proceedings shall maintain status quo as on date, with regard to the possession as well as with regard to the construction over the property in dispute.
11. We further provide that Original Suit No.352 of 2014 shall be proceeded with, without granting any unnecessary adjournment to either of the parties, and every efforts be made to conclude the hearing of the suit, preferably within six months from the date of a filing of certified copy of this order before the court concerned.
12. This first appeal from order stands disposed of.
