1. Shri R.D.Shahi, Advocate has filed 'Vakalatnama' on behalf of opposite parties no.3 to 8, which is taken on record.
2. Heard, Shri R.R.Upadhyay, learned counsel for the petitioners and Shri R.D.Shahi, learned counsel for opposite parties no.3 to 8. The opposite parties no.1 and 2 are the court concerned.
3. This petition has been filed challenging the judgment and order dated 18.08.2018 and 08.07.2021 passed on the application of the petitioners under Order 39 Rule 1 and 2 CPC filed alongwith the Original Suit No.563 of 2017; Raj Kumar Singh and another Versus Uday Pratap Singh (dead) and others and Misc. Civil Appeal No.09 of 2018 (computerized No.09/2018); Raj Kumar Singh and another Versus Uday Pratap Singh (Dead) though LRs, respectively.
4. Submission of learned counsel for the petitioners is that the petitioners and opposite parties no.3 to 8 have equal share in the land in question. The petitioners had filed a suit for partition alongwith an application under Order 39 Rule 1 and 2 CPC, as the opposite parties had started making construction on some portion, on which the petitioners are in possession on the basis of oral family settlement. The application filed by the petitioners for interim injunction was rejected by means of order dated 18.08.2018 without considering it, though the facts as argued before the court were recorded. Therefore, the petitioners had filed a Misc. Civil Appeal No.09 of 2018, which has also been dismissed without considering the facts of the case.
5. On the basis of above, learned counsel for the petitioners submitted that the opposite parties are trying to forcibly raise construction and intending to change the nature of the property, therefore, interim injunction is required to be granted till disposal of the suit and a direction may be issued to the concerned court to decide the partition suit within some stipulated period.
6. On the other hand learned counsel for the opposite parties submitted that there is no such prayer by the petitioners in their application for interim injunction, rather a prayer has been made that the opposite parties may be restrained from making hindrance in the construction of the petitioners. Therefore there was no such pleading and even if it was argued before the trial court that was beyond the pleadings which could not have been granted. Accordingly the impugned orders have rightly been passed in accordance with law.
7. Having considered the submissions of learned counsel for the parties and on perusal of the record it is apparent that the petitioners had made a prayer in the application for interim injunction to the effect that the respondents may be directed not to make hindrance in the possession and construction of the petitioners. The trial court as well as the appellate court after considering the pleadings of the parties and considering the relevant records have passed the orders as no injunction can be granted in regard to a land in which both the parties are co-sharers, till the partition is made as both the parties have possession on every part of the land. There is no case of the petitioners that any construction is being made by the opposite parties. Which is apparent from the prayer made in his application for interim relief. the impugned orders have been passed considering several case laws. This court does not find any illegality or error in the impugned orders, which are well discussed and reasoned orders.
8. The aforesaid legal position could not be disputed by learned counsel for the petitioners also.
9. The petition is misconceived and lacks merit. It is, accordingly, dismissed.
10. However, it is open to the petitioners to move appropriate application for expeditious disposal of the case before the concerned court. In case any such application is moved before the court concerned the same may be considered by it in accordance with law.
.
...................................(Rajnish Kumar,J.) Order Date :- 29.7.2021 Banswar