Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7890 of 2018 Petitioner :- Smt. Suruj Devi Respondent :- Additional District Judge , Court No. 3 Ballia And 11 Others Counsel for Petitioner :- Ajeet Kumar Pathak Counsel for Respondent :- Deo Anand
Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioner; Sri V. Singh for the respondent no.5 and have perused the record.
The instant petition has been filed for setting aside the order dated 13.07.2018 passed by the Additional District Judge, Court No.3, Ballia in Misc. Civil Appeal No. 54 of 2018 by which the Misc. Civil Appeal has been allowed and the order dated 09.02.2018 passed by the trial court granting temporary injunction in favour of the plaintiff-petitioner has been set aside.
The petitioner had instituted Suit No. 6 of 2017 for permanent prohibitory injunction seeking to restrain the defendants from interfering in the possession of the plaintiff-petitioner over suit property denoted by numerals i.e. 1-2-3-4 in the plaint map by claiming it to be part of plot no.349, area 0.2430 hectare at Mauja Balihar, Pargana & District Ballia. The trial court granted temporary injunction in favour of the plaintiff- petitioner.
Aggrieved by the order of the trial court, misc. appeal was filed by the defendant-respondents, which has been allowed by the impugned order.
A perusal of the impugned order would reflect that the appellate court allowed the appeal upon considering the fact that the defendants and the plaintiffs at best were co-sharers and therefore the plaintiff would not be entitled to injunction over any specific portion of the property in absence of any clear evidence of partition suggesting exclusive title of the plaintiff over that portion.
The learned counsel for the petitioner has submitted that even a co-sharer can obtain an injunction against the other co-sharer for maintenance of status quo and therefore the appellate court was not justified in interfering with the order passed by the trial court.
The aforesaid contention of the petitioner may be justified in a case where injunction is not sought over any specific portion of the land co owned by the parties. Here, the plaintiff-petitioner had sought injunction in respect of a specific portion of the land and there was no specific pleading nor evidence to suggest that there had been any partition whereunder that specific portion had fallen to the share of the plaintiff. Otherwise, admittedly, the parties are co-owner.
Under the circumstances, no good ground is made out to interfere with the appellate order. The petition is dismissed.
Order Date :- 29.10.2018 Sunil Kr Tiwari