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 Neutral Citation No. - 2023:AHC-LKO:14915 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