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ALLAHABAD HIGH COURT
J.J. Munir, J.
Sanjay Kumar Tripathi and Anr. – Petitioners
versus
Suryakali Tripathi – Respondent
Matters Under Article 227 No.1015 of 2024
Decided on 5.8.2024
(A) Civil Procedure Code, 1908 – Order XXXIX Rules 1 and 2—Injunction—Grant of— There is absolutely no right inhering in co-sharer of a property to prevent another co-sharer by Court’s injunction from transferring that other’s unpartitioned share—A co-sharer who has an unpartitioned share, is always free to sell or otherwise assign it to a third party—Owner of a share cannot transfer any particular portion of property without a partition by metes and bounds—In no event, plaintiffs would be entitled to injunction of the kind they claim, seeking to restrain defendant, a co-sharer in suit property from transferring her unpartitioned share in favour of a third party.(Para 10)
(B) Specific Relief Act, 1963—Section 34—Declaratory suit—A declaration is a general relief, which is neither to be sought nor granted in a case where there are other substantive reliefs known to law—A suit for rendition of accounts would involve plaintiff asking for a decree for accounts and likewise, in a case where money owed to plaintiff is secured by a mortgage, a decree for foreclosure or sale of mortgaged property—Plaintiff, who has a cause of action against a co-sharer in an undivided estate, is obliged by law to sue for relief of partition, specifically pleading share that he claims—Court would then try suit and pass a preliminary decree for partition, declaring share of parties—Preliminary decree in a suit for partition is in fact a declaration of parties’ share which includes plaintiff and all other co-sharers—After preliminary decree for partition is passed, it is open to plaintiff to apply for preparation of a final decree, where according to shares of parties and myriad factors that are relevant, Court would pass a suitable final decree for partition, demarcating and delivering Khas possession of plaintiff’s share in suit property.(Para 13)
Result: Petition dismissed with costs.
JUDGMENT
This petition under Article 227 of the Constitution is directed against an order passed by Mr. Vinay Singh, Additional District Judge, Court No.21, Kanpur Nagar, allowing Misc. Civil Appeal No.103 of 2023 and setting aside the ad interim injunction dated 19.09.2023, granted by the learned Additional Civil Judge (Jr. Div.), Court No.8, Kanpur Nagar in O.S. No.1341 of 2023.
2. The petitioners are the plaintiffs of O.S. No.1341 of 2023, whereas the sole defendant-respondent to this petition is their mother. The property in dispute, that is the suit property, is agricultural land, wherein both the plaintiff-petitioners (for short, ‘the plaintiffs’) and the defendant-respondent (for short, ‘the defendant’) hold shares as they claim. The suit property is admittedly undivided. The details of this property are given at the foot of the plaint, giving rise to the suit, whereas in paragraph Nos.2 and 3, the plaintiffs disclose their shares in the suit property and that of the defendant. The cause of action, which the plaintiffs set forth in the plaint, is that the defendant, who is a co-sharer of the plaintiffs and their mother, under the influence of the plaintiffs’ sister, Anita Mishra and her husband, with whom, the defendant resides, has transferred an area of 155.33 square yards (125.69 square meters) of land out of Khasra No.164, Khata No.00298, admeasuring a total of 0.3160 hectare, situate at Village Hora Bangar, Tehsil, Pargana and District Kanpur Nagar, vide registered sale deed dated 17.09.2019 in favour of one Rajesh and another Deepak. It is also pleaded that the plaintiffs and the defendant together, out of the same plot, sold off an area of 75.25 square meters vide registered sale deed dated 04.07.2017, but the defendant, in connivance with the plaintiffs’ sister, Anit Mishra, has misappropriated the sale consideration. The plaintiffs plead that the defendant has no right to transfer her share in the suit property, which is unpartitioned, unless it is partitioned in accordance with law with the precise shares of parties determined.
3. It is also their case that the defendant has offered for sale the suit property jointly owned by the plaintiffs and the defendant, leading to a broker entering upon the said property and attempting to lay a foundation thereon. It is the plaintiffs’ case that upon resistance by them, he picked up an altercation, compelling them to report the matter to the Police. Saying that the entire suit property is the joint holding of the plaintiffs and the defendant, the plaintiffs’ case is that the defendant has no right to transfer her share without a partition being effected. It is on the foot of this case and cause of action that the plaintiffs have claimed the following reliefs (translated into English from Hindi):
“A. that by a decree of permanent injunction in the plaintiffs’ favour and against the defendant, the Court may restrain the defendant from transferring land comprising Khata No.00071, Khasra No.101, admeasuring 0.7270 hectare; Khata No.00141, Khasra No.59, 0.2030 hectare, situate at Village Hora Bangar, Tehsil and District Kanpur Nagar; Khata No.00298, Khasra No.162, 0.3160 hectare, situate at Village Hora Bangar, Tehsil and District Kanpur Nagar; Khata No.00072, Khasra No.99, 0.1020 hectare; Khata No.00137, Khasra Nos.206, 208, 205, 216, 217, 218, 219, 0.4300 hectare, 0.1230 hectare, 0.4710 hectare, 0.1430 hectare, 0.3280 hectare, 0.2770 hectare, 0.5740 hectare; Khata No.00138, Khasra No.176, area 0.3940 hectare, situate at Village Hora Kachhar, Pargana, Tehsil and District Kanpur Nagar; Khata No.00211, Khasra No.79, 0.4530 hectare situate at Village Hora Kachhar, Pargana, Tehsil and District Kanpur Nagar, as per boundaries given at the foot of the plaint or any part thereof in favour of any third party by way of sale, will, hiba, agreement etc.
B. The Court, by a declaration, may declare the plaintiffs’ cosharers in possession of a 1/4th share in Khata No.00071, Khasra No.1
(1) Injunction – There is absolutely no right inhering in co-sharer of a property to prevent another co-sharer by Court’s injunction from transferring that other’s unpartitioned share.(2) Preliminary....
A co-sharer in undivided property can transfer their share without partition; injunctions to prevent such transfers are not legally sustainable.
The revenue court has jurisdiction to grant interim injunctions in partition suits under the U.P. Revenue Code, and construction on joint land does not change its nature as a holding.
(1) Law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subject to well recognised prohibitions, even make constructions on it. Exclusive ....
A co-owner can seek injunction against another co-owner to prevent wrongful dispossession, contrary to the trial court's ruling that denied such relief.
remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the cas....
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