ORDER :

Heard.

1. This petition has been brought under Article 227 of the Constitution of India being aggrieved by the order dated 1.9.2021, passed by the Third Additional District Judge, Baloda Bazar, District Baloda Bazar, Bhatapara, Chhattisgarh in Miscellaneous Civil Appeal No. 12 of 2019, by which the appeal was allowed; the order of the trial Court dated 26.8.2019 was set aside and respondent No.1 was granted relief under Order XXXIX Rule 1 & 2 of the CPC.

2. The petitioners have filed a civil suit praying for reliefs of declaration of title, permanent injunction, partition and possession, on the basis of the pleading that the suit property is a joint family property. The petitioners and respondent No.1 are the sons of late Sutichhan Pandey. Respondent No.1 is contesting the suit on the ground that the partition has already taken place between the parties. Respondent No.1/ defendant filed an application under Order XXXIX Rule 1 & 2 read with Section 151 of the CPC praying that he is in possession of the land in the partition in which the petitioners/ plaintiffs are interfering. Hence, on this basis, his possession may be protected by the interim injunction. The petitioners/ plaintiffs opposed the application. Learned trial Court by order dated 26.8.2019 has dismissed the application. The appeal preferred has been allowed by the Appellate Court and temporary injunction has been granted to respondent No.1, directing the petitioners not to interfere in the possession of respondent No.1 over the suit property.

3. It is submitted by counsel for the petitioners that late Sutichhan Pandey had, during his life time partitioned the property among his sons and the suit property had fallen in the share of the petitioners. Respondent No.1 had to purchase a tractor on loan, for which on the basis of the consent letter of the family members including the petitioners, the name of respondent No.1 was allowed to be mutated in the revenue records with respect to the suit property. The suit property continued in possession of the petitioners. It was an understanding between the parties that after the repayment of loan the whole property will be partitioned again. It is pleaded in the plaint by the petitioners that respondent No.1 was interfering in their peaceful possession because of which, civil suit has been filed praying for the reliefs of declaration, injunction, partition and possession.

4. It is submitted by counsel for the petitioners that learned trial Court has held that respondent No.1 has not filed any counter-claim, therefore, prima facie the balance of convenience is not in his favour and the application was fit to be rejected. On the application filed by respondent No.1, the family members have been arrayed as a party in the civil suit, however, the claim of respondent No.1 on the suit property is not absolute, which can be seen on the basis of the consent letter dated 13.9.2000, according to which, all the family members including respondent No.1 had consented that the suit property shall be mutated in favour of respondent No.1 which shall continue as the joint property. Hence, any form of injunction cannot be granted against co-owner.

Reliance has been placed on the judgment of this Court in the case of Smt. Sanju Devi Kashyap and Others vs. Smt. Uma Bai and Others, reported in AIR 2019 C.G. 56, in which it has been held that a defendant is not entitled for grant of temporary injunction, hence, the impugned order is unsustainable. It is prayed that this petition be allowed and the impugned order be set aside.

5. Learned counsel for respondent No.1 opposes the petition and the submissions made by the petitioners’ counsel. It is submitted that according to the pleadings in the paint itself, it is clear that there had been a partial partition and the claim of the petitioners that the suit property has fallen in their share is a false statement, as admittedly there had been an oral partition effected by the father of the parties. The