JUDGMENT S.N. Srivastava, J.
1. Petition in hand has been filed assailing the judgment and order dated 28.5.2004, passed by 1st Addl. District Judge, Ghazipur, whereby Misc. Appeal No. 160 of 1998 was allowed and in consequence order passed by trial court dated 30.5.1998 granting temporary injunction in O.S. No. 104 of 1998 was set aside. As a matter of fact this petition was heard and allowed on 26.7.2004 attended with the observation that reasons would follow. Herein below are reasons.
2. Facts forming background to the suit are that plaintiff Keshav Prasad instituted a suit for partition of the property as described in the plaint map. The plaint allegations are that the property in suit was ancestral property in which he had one-third share. It is further alleged that a private partition mutually acceptable to all, had taken place in the year 1991 between the parties as a consequence of which the property marked and described in the plaint map by letters A, A-2, A-3, A-4 and A-5 fell to the share of the plaintiff and plaintiff invested huge amount for the improvement of the property including pumping set. It is further alleged that the plaintiff constructed three kotharies. It is also alleged that plaintiff who was in the service of Indian Railways, retreated to his village after retirement and carried other improvements which included installation of rural gas equipments, etc. It is further alleged that when plaintiff wanted to make construction on land assigned to him as his share in order to make it habitable, opposite parties created hindrance thereon. It is also alleged that plaintiff has no male issue except one daughter and the defendants have covetous eyes over his property. Since parties have disputed the private partition, the suit for partition has been instituted by the plaintiff.
3. It would transpire from the record that suit was filed with accompanying application under Order XXXIX, Rule 2 (1), C.P.C. for the relief of restraining the opposite parties from demolishing the constructions and from cutting trees or altering the position on the spot or creating obstructions in the use and enjoyment of the property. An objection was filed to that application. The trial court by means of order dated 30th May, 1998, issued temporary injunction restraining defendants from demolishing any construction situated on the land in suit and also directed to maintain status quo on the spot. It was clarified in the order that parties had right of repairs but they were inhibited to make new construction. Aggrieved by the order an appeal was preferred by the opposite party which was allowed and in consequence, the order of the trial court was set aside.
4. I have heard learned counsel for the parties and also perused the materials on record.
5. The learned counsel for the petitioner canvassed that the trial court has reckoned into consideration three relevant questions and held that property in dispute is a joint property and petitioner and opposite parties had l/3rd share each in the ancestral property and further that the plaintiff has a prima fecia case made out for grant of temporary injunction. It was further spelt out in the impugned order that in case demolition and /or new construction is permitted, it would occasion irreparable harm and injury to the parties. It has further been canvassed that it is eloquent from a perusal of the order passed by the appellate court that the revisional court has not reversed any of the finding and simply proceeded on the ground that since suit has been instituted for relief of partition and since in law relief of partition is not permissible, the impugned order of granting temporary injunction cannot be countenanced. It was further canvassed that the revisional court has not applied its mind to the relevant factors, which - were considered by the trial court for granting injunction. Per contra, Sri Krishnaji Khare learned counsel representing opposite parties contended that the order passed by the appellate court was rightly passed and the appellate court has rightly assigned reason for reversal of the order to the effect that the suit was instituted for the relief of partition but in the plaint, the plaintiff has pleaded that private partition had taken place between the three brothers and therefore, the order passed by the trial court was rightly held to be unsustainable and was reversed accordingly.
6. It is admitted position that plaintiff and defendants have 1/3rd share each in the ancestral property. The plaintiff took the plea that private partition had been effected between the parties as far back as in the year 1991 from which parties subsequently backtracked and hence suit was instituted for the relief of partition. It is nobody's case that in pursuance of private partition, any formal settlement was prepared or reduced to writing albeit the fact that parties had some mutually acceptable private arrangement verging on separation and in the circumstances, the suit was rightly filed. From a perusal of the order passed by appellate court, it is explicit that the appellate court eschewed from consideration relevant factors which prevailed with the trial court in granting temporary injunction and by this reckoning, the order passed by the appellate court would seem to be an order bereft of any reason the factors considered by the trial court were not dealt with and erroneously reversed the order passed by the trial court. The only ground on which the order of appellate court hinges was that on one hand, the plaintiff claims exclusive possession over the property which fell to his share in private partition and on the other hand, he seeks the relief of partition and it was reasoned that both things cannot go simultaneously and if partition has already taken place between the parties, in that case the suit for partition is not maintainable and if no partition has taken place between the parties prior to the institution of the suit in that case suit for partition is maintainable. It was, therefore, observed that the plaintiff cannot have sweets in both his hands to rephrase, the plaintiff cannot eat the cake and have it as well. In my considered view, the line of reasoning adopted by the appellate court cannot be sustained in law. It is admitted position that private partition had been effected between the parties but subsequently dispute arose over and . parties fell out over the private partition and in the circumstances, the suit for partition was rightly filed. It has not been disputed that parties carried out various improvements and constructions in the property in their respective possession and in which parties are residing. In case, demolition or interference is allowed by any of the parties arrayed as respondents, it is plaintiff who would be visited with irreparable injury. From a perusal of the record, it would transpire that plaintiff who had instituted the suit had since expired and he is survived by his widow petitioner No. 1 and daughter, petitioner No. 2. It brooks no dispute that deceased Keshav Dev had no male issue. In the circumstances, the trial court considering the balance of convenience etc. rightly granted temporary injunction and on the other hand, the appellate court erred in law in reversing the order passed by the trial court.
7. In the above conspectus, I am of the view that the trial court rightly passed the order restraining the respondent from demolishing or altering the nature of the property attended with further direction to maintain status quo on the spot and permitting only to the extent of making repairs and not to make any new construction.
8. As a result of foregoing discussion, the petition is allowed and in consequence, the impugned order passed by the appellate court is quashed and that of trial court is affirmed attended with further direction that in case, after the orders passed by the appellate court, the defendants have made any demolition or effected any change, in the property altering status quo, the same shall be restored to status quo ante on the date immediately before passing of the order by the appellate court.