JUDGMENT Tarun Agarwala, J.
1. The petitioners are the plaintiffs and filed a suit for a permanent injunction alleging that they became the bhumidhars by virtue of a sale deed dated 3.11.1997 and, on that basis, came in the possession of the said land. it was alleged that the defendants had no right on that land. It was also alleged that the respondents tried to take forceful possession of the land in question on 31.10.2004 and therefore, prayed that the defendants be restrained from interfering in the peaceful possession of the plaintiffs on the land in question or to make any constructions on the land in question. The defendants appeared and filed their objections. The trial court after considering the material on the record granted a temporary injunction restraining the defendants from interfering in the possession of the plaintiffs on the land in question. The defendants filed an appeal which was allowed and the temporary injunction granted by the trial court was set aside. Aggrieved, the plaintiffs have filed the present writ petition.
2. The dispute in the present writ petition pertains to a mango grove, a dilapidated Kothi, other trees and a barren land. According to the defendants, the said land was recorded in the name of Smt. Khatoon Jannat Bibi. The defendants, in their objections, submitted that Smt. Khatoon Jannat Bibi, made an oral gift on 16.8.1988, with regard to the aforesaid plots, in favour of the defendant Nos. 3 and 4, namely, Asma Lateef and Zafeera Lateef, who were the grand daughters of Smt. Khatoon Jannat Bibi. It was alleged that Smt. Khatoon Jannat Bibi executed a memorandum on 23.8.1988, recording the factum of oral gift in favour of her grand daughters and that she had also filed an affidavit before the Court of Tehsildar, Sirathu, district Allahabad alleging that she had gifted the properties to her grand daughters and had also put them in possession and submitted that their names may be mutated in the revenue records. Based on the aforesaid oral gift, the grand daughters Asma Lateef and Zafeera Lateef, defendant Nos. 3 and 4 applied for mutation. In these mutation proceedings Sri Asad Ullah Kazmi, the father of the plaintiffs, who was the son from the first husband of Smt. Khatoon Jannat Bibi, contested the proceedings and also moved an application for the mutation of his name on the plots in question. While these proceedings were pending, Smt. Khatoon Jannat Bibi expired on 8.1.1990 and soon thereafter, the defendant Nos. 1 and 2, who were the grandsons from the first husband of Smt. Khatoon Jannat Bibi started interfering in the possession of the defendants on the plots in question. In view of the aforesaid situation and interference, the defendant Nos. 3 and 4 filed an Original Suit No. 58 of 1990 against Asad Ullah and Samiullah (defendant Nos. 1 and 2) and an interim injunction dated 31.5.1990 was granted by the civil court directing the parties to maintain status quo till the disposal of the suit and further restrained Asad Ullah and Samiullah (defendant Nos. 1 and 2) from interfering in the peaceful possession of the present defendant Nos. 3 and 4 in respect of the disputed property. Eventually, the suit was decreed on 5.8.1991 and Asad Ullah and Samiullah were permanently restrained from interfering in the possession of the land in question of the defendant Nos. 3 and 4.
3. It further transpires that the Tehsildar Sirathu, Allahabad by an order dated 20.10.1997 decided the mutation proceedings, in favour of Mohd. Samiullah and Mohammad Fariduddin, namely, the defendant Nos. 1 and 2. The defendant Nos. 3 and 4 filed an application for the recall of the order. The application for the recall of the order under Section 201 of the Land Revenue Act, was allowed by an order dated 21.4.1998 and the order of mutation in favour of defendant Nos. 2 and 3, was recalled and the mutation case was registered to its original number. However, within a fortnight of the order dated 20.10.1997, the defendant Nos. 1 and 2 executed a sale deed dated 3.11.1997 in respect of the property in question in favour of the present plaintiffs- petitioners in defiance of the perpetual injunction granted by the civil court in Original Suit No. 58 of 1990.
4. When the defendant Nos. 3 and 4 came to know about this act, they filed an Execution Case No. 58 of 1997 impleadlng not only defendant Nos. 1 and 2, i.e., the judgment debtors, but also the present plaintiffs. In the said Execution Case, the defendant Nos. 3 and 4 further prayed that the sale deed executed by defendant Nos. 1 and 2 in favour of the plaintiffs be declared null and void. The executing court by an order dated 16.1.1998, restrained the transferees, namely, the plaintiffs from interfering in the possession of defendant Nos. 3 and 4 over the plots in question. It is alleged that, the transferees, namely, the plaintiffs, took forcible possession of the property in question and thereafter filed the present suit for injunction.
5. In the light of the aforesaid objections, the trial court without considering the impact of the aforesaid objections, granted a temporary injunction in favour of the plaintiffs, on the sole ground, that there was a sale-deed in favour of the plaintiffs and that the defendant Nos. 3 and 4 had admitted that the plaintiffs were in possession and, on that basis, held that the plaintiffs had a prima-facie case for a grant of temporary injunction. In the miscellaneous appeal, the appellate court, dealt at length and the objection raised by the defendant Nos. 3 and 4 was considered. The appellate court concluded that the plaintiffs had concealed material facts, and did not disclose the name of the sellers, nor the sellers had a right to sell the property in question. The appellate court further came to the conclusion that the plaintiffs illegally came into the possession of the property in question and therefore, no injunction could be granted in their favour against the true owners of the property in question.
6. Heard Sri P. N. Saxena, the learned senior counsel for the petitioners assisted by Sri H. P. Mishra, advocate and Sri V. B. Upadhyay, the learned senior counsel assisted by Sri Ashutosh Srivastava for the respondent Nos. 3 and 4.
7. The learned Counsel for the petitioners submitted that the petitioners are the bona fide purchasers of the land in question for value and had validly and legally purchased the property from defendant Nos. 1 and 2, who were the rightful owners of the property in question. The learned Counsel for the petitioners further submitted that the decree passed in Original Suit No. 58 of 1990 was a nullity and that no reliance could be placed by the defendants on the said decree nor could the said decree be binding upon the plaintiffs, even though they had stepped into the shoes of the Judgment debtor.
8. The learned Counsel for the petitioner submitted that whenever the decree in Suit No. 58 of 1990 was set up against the plaintiffs, the plaintiffs had a right to take up a defence, namely, that the decree was void and a nullity in the eyes of law which had no binding effect upon the plaintiffs. The learned Counsel for the petitioners further submitted that the petitioners are the bona fide purchasers and have a valid sale deed in their favour and that they are also in possession, which is admitted by the defendant Nos. 3 and 4. Consequently, the petitioners were entitled for a grant of a temporary injunction during the pendency of the suit.
9. In support of his submission, the learned Counsel for the petitioners placed reliance upon a decision of the Supreme Court in A. R. Antulay v R. S. Nayak and Anr. AIR 1988 SC 1531, on the proposition that a decree passed by a Court without jurisdiction was a nullity and that its validity could be set up whenever and wherever it was sought to be relied upon either at the stage of execution or even in collateral proceedings. Further reliance was made in the case of Rafeek Bibi (D) by L.Rs. v. Syed Waliuddin (D) by L.Rs. and Ors. JT 2003 Suppl (1) SC 160 : 2003 (5) AWC 4596 (SC), wherein the Supreme Court held that the lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such nullity based on want of jurisdiction.
10. Upon the consideration of the entire facts and circumstances brought on the record, in the opinion of the Court, the petitioners are not entitled for any relief. Admittedly, the petitioners have stepped into the shoes of the judgment debtor in Original Suit No. 58 of 1990. There is nothing on record to prove that the defendant Nos. 1 and 2 were the owners of the property in question and that they had an indefeasible right to sell the property. On the other hand, there is a perpetual injunction operating against them in a decree passed in Suit No. 58 of 1990 restraining them from interfering in the possession of the property in favour of the defendant Nos. 3 and 4. In the light of a permanent injunction being passed against the defendant Nos. 1 and 2, it was not open to the said defendant Nos. 1 and 2 to execute a sale deed in favour of the plaintiffs. Once a decree of perpetual injunction has been granted against the defendant Nos. 1 and 2 and the said mandatory injunction having become final, the said judgment debtors were required to obey the decree. The Supreme Court in Jai Dayal and Ors. v. Krishan Lal Garg and Anr. , has held:
If a judgment debtor has suffered the decree, no attempt to circumvent the perpetual injunction and mandatory injunction can be permitted.
The Supreme Court further held:
If the decree-holder makes any construction clubbing the other adjacent property, property which is a part of the subject-matter in the earlier suit, a party cannot and should not, by his action, be permitted to drive the decree for another round of adjudication of the rights in the second suit to be settled afresh. In other words, giving such a liberty will amount to encouraging persons to take the law into their own hands and drive the decree-holder to another suit. It can never be facilitated to circumvent the law and relegate the party for tardy process of the civil action. What is needed Is an opportunity to obey the injunction. Non-compliance is a continuing disobedience entailing penal consequences. A separate fresh suit is barred under Section 49 of the C.P.C.
11. In view of the aforesaid, the Court is of the opinion, that the defendant Nos. 1 and 2 could not have executed a sale-deed in favour of the plaintiff without getting a declaration of their right finalised in a Court of law. Assuming that the defendant Nos. 1 and 2 are the co-sharers and could transfer the land in question, it is a settled legal position that even though a co-sharer could transfer his share of the property in question but the possession of the same could not be handed over to the transferee unless the property was partitioned by metes and bounds as held by the Supreme Court in Sidheshwar Mukharjee v. Bhubneshwar Prasad Narain Singh , in M. V. S. Manikayala Rao v. V.M. Narasimhaswami in Kartar Singh v. Harjinder Singh AIR 1990 SC 845.
12. In Mulraj v. Murti Raghunathji Maharaj , the Supreme Court held that any action taken in disobedience of an order passed by the Court would be illegal and subsequent action would be a nullity.
13. In view of the aforesaid, the rights of the defendant Nos. 1 and 2 in selling the property had not crystallised and therefore, it was doubtful whether the said respondents could actually execute a sale deed in favour of the plaintiffs. However, this Court is not expressing any opinion, at the moment and leave it for the trial court or for the executing court to decide this issue. It is sufficient, at the moment, to hold that the petitioners do not get any right for a grant of temporary Injunction on the basis of the sale deed dated 3.11.1997 in view of the fact that the decree passed in Suit No. 58 of 1990 is also binding against them inasmuch as, the plaintiffs have stepped into the shoes of the judgment debtor.
14. It has also come on record that in the Execution Case No. 58 of 1997, a restraint order is also operating against the petitioners restraining them from interfering in the possession of defendant Nos. 3 and 4 over the plots in question. This fact is admitted by the petitioners inspite of which the plaintiffs alleged that they are in possession of the plots in question. The petitioners have also filed their objection under Section 47, C.P.C. which is pending consideration before the executing court. It has also come on record that the defendant Nos. 3 and 4 have filed a Contempt Application for the violation of the injunction dated 16.1.1998 in which notices have been issued to the plaintiffs. Consequently, at the present moment, the mere fact that the plaintiffs have come in possession allegedly by forceful means will not entitle them for an equitable relief for a grant of a temporary injunction on the sole ground that they are in possession. In the opinion of the Court, the petitioners are not entitled for the grant of a temporary injunction on the basis that they have come into possession allegedly by forceful means.
15. The contention of the learned Counsel for the petitioners that the decree passed in Original Suit No. 58 of 1990 is a nullity in the eyes of law and is not binding upon the petitioners, is bereft of. merit. The submission of the learned Counsel for the petitioners that the civil court had no jurisdiction to grant a decree inasmuch as, the suit was only cognizable by a revenue court is misconceived. A perusal of the plaint in Original Suit No. 58 of 1990 reveals that a composite relief of possession of a mango grove, a dilapidated Kothi, Mahua crops and barren land was sought for. Such a relief could possibly be only granted by a civil court. Prima facie, it appears that the suit was not barred by the provisions of U. P. Zamindari Abolition and Land Reforms Act. However, this Court is not expressing any final opinion on this matter and it would be open to the petitioners to press this point before the executing court or before an appropriate Court.
16. In view of the aforesaid, this Court is of the opinion, that the appellate court was justified in setting aside the temporary injunction granted by the trial court and in rejecting the application of the petitioners for the grant of a temporary injunction. Consequently, the writ petition fails and is dismissed. However, there shall be no order as to cost.
17. Before parting it is made clear that any observation made in this judgment will not be utilised by any of the parties nor shall it be considered by the Court while deciding the present suit or deciding the execution application pending before the executing Court or in any other collateral proceedings.