Allahabad High Court
Smt. Shahnaz Begum vs District Judge Sultanpur And 9 Others on 7 February, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 546 of 2023 Petitioner :- Smt. Shahnaz Begum Respondent :- District Judge Sultanpur And 9 Others Counsel for Petitioner :- Mohammad Aslam Khan Counsel for Respondent :- Kaleem Ur Rehman,Shaista Parveen Hon'ble Manish Mathur,J.
Heard Mr. Mohd. Arif Khan, learned Senior Counsel assisted by Mr. Mohd. Aslam Khan, learned counsel for petitioner.
In view of order being proposed to be passed, notices to opposite parties no.1 and 2 and opposite parties no.4 to 10 stand dispensed with.
Although there is reporting of caveat on behalf of opposite party no.3 but despite the matter being taken up in the revised list, no one has put in appearance on behalf of caveator.
Petition under Article 227 of the Constitution of India has been filed against order dated 17.08.2022 passed by the trial court whereby objections under order 39 Rule 4 of the Code of Civil Procedure have been allowed vacating the temporary injunction earlier granted. Appellate order dated 18.01.2023 has also been challenged.
Learned counsel for petitioner submits that the petitioner had purchased an area measuring 0.01109 hectare of Gata No.1297 having a total area of 0.1110 hectare by means of registered instrument of transfer dated 28.11.2008. It is submitted that when the defendants 1 and 2 started interfering in the possession of petitioner and raising construction on the plot in question, the petitioner was compelled to file the Regular Suit No.81 of 2022 for permanent injunction in which initially an ex parte interim injunction was granted but thereafter the same was vacated by means of the impugned order upon application being filed by defendants.
It is submitted that in the impugned order dated 17.08.2022, the trial court has clearly erred in recording a finding that there was material concealment of fact in the plaint which resulted in issuance of ex parte temporary injunction. It is submitted that a copy of the sale-deed dated 28.11.2008 had been filed alongwith copy of plaint clearly indicating the area purchased by the plaintiff in the plot in question and it was only after examining the same that ex-parte temporary injunction was granted. As such, it is submitted that there was no concealment of fact by the plaintiff and finding recorded to the contrary by means of impugned order is clearly erroneous.
Learned counsel has also drawn attention to the other ground for vacation of interim injunction that the trial court has erred in holding that temporary injunction cannot be granted against a co-sharer when proceedings for partition of the property in question are pending adjudication. It is submitted that it is settled law that suit for permanent injunction would be maintainable against co-sharers also in case the possession of plaintiff is being interfered with to an extent that it would hamper peaceful enjoyment of the property which has been purchased by the said co-sharer.
Reliance has been placed on judgment rendered by full bench decision of this Court in the case of Chhedi Lal and another versus Chhotey Lal reported in AIR 1951 Allahabad 199 as well as in the case of Devendra Kumar Trikha versus The District Judge, Lucknow and others reported in 1983(1)Lucknow Civil Decision page1.
It is thus submitted that the trial court clearly fell in error in vacating the temporary injunction granted earlier on the aforesaid two counts.
Learned counsel has also adverted to the appellate Court judgment to submit that the findings recorded by the trial court in the impugned order dated 17.08.2022 has been merely copied without any independent application of mind to the grounds raised in the memorandum of appeal particularly with regard to the fact that there was no concealment of fact in the plaint and suit for injunction would be maintainable against the co-sharer in the light of full bench decision of this Court as followed subsequently.
Upon consideration of submissions advanced by learned counsel for petitioner, it appears from the material on record that suit for permanent injunction has been filed by the petitioner indicating that she is the owner in possession of Gata No.1297 Minjumla having an area of 0.1110 hectare situate in the village in question. The prayer clause also indicates that injunction has been sought over Gata No.1297 Minjumla having an area of 0.1110 hectare. Although the plaint does not indicate any reference to the registered sale-deed dated 28.11.2008 but as per submission of learned counsel for petitioner, the aforesaid sale-deed was on record having been filed along with plaint and it was after consideration of the sale-deed indicating petitioner's share in the property to be restricted to 0.2019 hectare that trial court granted ex parte interim injunction.
A perusal of the trial court order indicates primarily two grounds for vacation of the ex parte interim injunction with first being that the property in dispute being Gata No.1297 Minjumla is a part and parcel of one plot which has not been partitioned by any competent court or authority and as such prior to grant of any permanent injunction, it would be necessary that plaintiff's share over the property disputed should be identified. It has also been indicated that plaintiff has not made any averment in the plaint with regard to the sale-deed or the portion of disputed property which has been purchased by her and over which she has possession.
Secondly, the trial court has reached a prima facie conclusion that the plaint was filed concealing material facts particularly the fact that plaintiff had only a share in the property disputed although relief is being claimed over the entire Gata No.1297 Minjumala. It is indicated in the order that neither any area of the property purchased by the plaintiff has been indicated in the plaint nor has any boundary been indicated and on the contrary, plaint has been filed seeking a relief of permanent injunction over the entire plot of 1297 Minjumla. As such, the trial court has reached a conclusion that averments in plaint were only to mislead the court concerned.
A perusal of impugned appellate court's order also indicates the same reasoning having been followed.
With regard to submissions advanced by learned counsel for petitioner, the following two questions which are required to be adjudicated in the present writ petition would be as follows:
A. Whether temporary injunction could have been granted to the petitioner-plaintiff against co-sharers of the property without any partition thereupon ?
B. Whether there was any concealment of fact in the plaint leading to grant of ex parte interim injunction?
Question No.A:- With regard to the first proposition, learned counsel for petitioner has placed reliance on Full Bench judgment of this Court in the case of Chhedi Lal (supra). The facts of the case was that one Tika Ram was owner of the plot in dispute and was survived by four sons one of whom died issue less. The portion of their shares in property in question exchanged hands and their successors started raising construction over the disputed plot whereafter the co-sharers filed suit for possession of the plot by demolition of construction raised by defendants on the ground that they were sole owners of entire property owned by late Tika Ram. The question with regard to injunction being granted against co-sharers was the issue on hand before the Full Bench and after noticing a number of judgments, the Full Bench held as follows:-
"25. As a result of the foregoing discussion, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While therefore a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the court according as the circumstances established in the case justify. The court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the court to exercise its discretion upon proof of circumstances showing which side the balance of convenience lies. That the court in the exercise of its discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused."
The aforesaid Full Bench Judgment has thereafter been followed with approval by Coordinate Bench of this Court in the case of Devendra Kumar Trikha (supra).
Upon consideration of Full Bench Decision, it is apparent that the Full Bench has answered the question that right of co-sharers in respect of joint land is required to be kept separate and distinct from the question as to what relief should be granted to a co-sharer particularly when his share has been invaded by other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The Full Bench has clearly held that it would only be in case where the rights of co-sharer have been exclusively appropriated by other co-sharers that a suit for injunction would be maintainable against co-sharers. The aspect has further been elaborated with the aspect that in case evidence establishes that plaintiff cannot be adequately compensated at the time of partition and that greater injury will result to him by refusal of relief than by granting it, that injunction could be granted.
As such, the aspect which can be culled out from the Full Bench decision is to the extent that relief of injunction to plaintiff against co-sharers would be maintainable only in the event the share of plaintiff has been entirely and exclusively encroached upon by the other co-sharers and secondly that the plaintiff cannot be adequately compensated at the time of partition and thirdly that greater injury will result to him by refusal of the relief than by granting him.
Upon applicability of aforesaid Full Bench decision in the present facts and circumstances of the case, it is evident not only from the sale-deed but also from submissions advanced by learned counsel for petitioner-plaintiff that the plaintiff had purchased only a portion of the property in question ad measuring 0.01293 hectare out of the total area of 0.1110 hectare in Gata No.1297 Minjumla. A reading of the plaint does not indicate any averment that any encroachment was being made by the defendants over the entire and exclusive property purchased by the plaintiff. It is also evident that a suit for partition between the parties is pending consideration of the competent court in terms of Section 116 of the U.P. Revenue Code, 2006. There has not been any finding recorded by the courts below or even in the present petition that plaintiff cannot be adequately compensated at the time of partition with regard to construction being raised over the property in question. It is also not the case of plaintiff that any construction is being raised over the property purchased by him by means of the instrument of transfer dated 28.11.2008.
In the case of Devendra Kumar Trikha (supra), the facts of the case were that a suit for permanent injunction had been filed against the co-owner with the prayer that the plaintiff was exclusively realizing rent arising from the property in question although the plaintiff being co-sharer had a right to a portion of rents being so realized. In paragraph 3 of the aforesaid judgment, Coordinate Bench has clearly held that since the share in rent of the co-sharers was being exclusively and completely taken over by the defendant, the suit as such for permanent injunction would be maintainable.
Here it would be noticeable that in both the judgments, great emphasis has been laid on the fact that relief of injunction against the co-sharer could be granted only in case the share of another co-sharer has been exclusively trampled upon. The facts and circumstances of the present case are otherwise.
In a recent judgment of Hon'ble the Supreme Court the aforesaid aspect has already been taken care of and adjudicated in the case of T. Ramalingeswara Rao (Dead) through Legal Representatives and Another versus N. Madhava Rao and others reported in (2019)4 Supreme Court Cases 608 wherein the aspect of whether injunction can be granted against co-sharers has been dealt with in the following manner:-
"16. In our view, even assuming that the plaintiffs claimed to be in possession of the suit property (which the two courts below did not find in their favour) for claiming injunction, yet they were not entitled to claim injunction against the other co-sharers over the suit property. It is a settled principle of law that the possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period. (SeeMohd. Baqarv.Naim-un-Nisa Bibi[Mohd. Baqarv.Naim-un-Nisa Bibi, AIR 1956 SC 548] .)
17. So far as the claim of the plaintiffs as being in exclusive possession to the exclusion of others was concerned, the same was held not proved by the two courts below."
The aforesaid judgment rendered by Hon'ble the Supreme Court is based on another previous judgment of Hon'ble the Supreme Court in the case of Mohd. Baqar v. Naim-un-Nisha Bibi reported in AIR 1956 SC 548 and clearly states the settled proposition that possession of one co-sharer is possession of all co-sharers and cannot be adverse to them unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon.
In the considered opinion of this Court, the aforesaid judgment is clearly applicable in the present facts and circumstances where a co-sharer is seeking grant of temporary injunction against a co-sharer with proceedings for partition pending between them.
In view of aforesaid discussion, this Court comes to the considered conclusion that there is no error in the orders impugned pertaining to the fact that injunction could not have been granted in favour of plaintiff against other co-sharer without partition being effected between them and without any averment that the exclusive share of the plaintiff was being trampled upon by the other co-sharers.
Question No.A is answered accordingly negatively against petitioner.
Question No.B: So far as question pertaining to concealment of fact as recorded in the judgments under challenge is concerned, it is evident from the sale-deed brought on record as Annexure No.11 that petitioner-plaintiff had purchased an area measuring 0.01293 hectare by means of instrument of transfer dated 28.11.2008. It is also the submission of learned counsel for petitioner that aforesaid is the only area purchased by petitioner-plaintiff by means of the aforesaid sale-deed although the entire area of property in dispute being Gata no.1297 minjumala is 0.1110 hectare.
It is also evident from a reading of plaint that there is no averment therein as to the portion of disputed property which has been purchased by plaintiff and the only indication comes in paragraph 2 of the plaint whereunder it has been stated that the area of property in question being Gata No.1297 minjumala is 0.1110 hector. It is also evident that in prayer clause, permanent injunction has been sought over the entire Gata No.1297 minjumala indicating an area of 0.1110 hectare. There is no averment in the plaint with regard to defendants being co-sharers in the property in question although it is admitted that the defendants are in fact co-sharers of plaintiff in the disputed property.
Upon consideration of aforesaid factors, it is evident that the plaintiff has failed to indicate his right over the property in question as also his share thereupon with such omission extending to the fact that defendants were co-sharers of the plaintiff in the disputed property.
The aspect of concealment of fact has been adverted to in the Full Bench decision in the case of Chhedi Lal (supra) in the following term:
"26. It now remains to deal with each of the appeals separately upon its own facts. So far as Second Civil Appeal No.282 of 1943 is concerned, the plaintiffs set up an untrue case that they were the sole owners and both the courts below have found that the defendants had a subsisting interest in the land in suit and had a right to build. It has also found against the plaintiffs that they made no oral protest, as alleged by them. Both the courts below have exercised their discretion upon the circumstances of the case in favour of the defendants and have refused the reliefs asked for by the plaintiffs. In this appeal the question resolves itself merely into the fact whether the discretion was exercised improperly. We are of opinion that the plaintiffs have failed to establish circumstances which would justify this Court in second appeal to interfere with the exercise of the discretion concurrently by the two courts below. We accordingly dismiss this appeal with costs."
Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is evident that the plaintiff had set up an untrue case by giving an impression that she was the sole owner of the entire plot no.1297 minjumala. It is a finding of fact recorded concurrently by both the courts below and has also been admitted by learned counsel for petitioner that in fact plaintiff has only a share in the property in dispute and is not owner in possession over the entire plot although there is no such averment in the plaint.
In view of aforesaid, this Court does not find any error with regard to finding recorded that there was material concealment of fact in the plaint.
Question No.B is answered accordingly against the petitioner.
In view of aforesaid that both the questions formulated by this Court have been answered against petitioner-plaintiff, the petition being devoid of merit is dismissed at the admission stage itself.
It is however made clear that the aforesaid answering of two questions is limited to the application for temporary injunction only and would not have any bearing on the final adjudication of the suit which would be on its own merits and would not prejudice the suit proceedings between co-sharers of the property in question, which would be subject to evidence.
Order Date :- 7.2.2023 Subodh/-