ORDER

This Miscellaneous Appeal is filed on behalf of plaintiff, being aggrieved of order dated 03.02.2018, passed by learned First Addl. Judge to the First Addl. District Judge, Singrauli, Headquarters, Waidhan, District Singrauli, in regular Civil Appeal No.44/2017, whereby, learned Addl. District Judge, has rejected an application under Order 39 Rule 1 & 2 read with Section 151 of CPC.

Plaintiff filed a suit in regard to various Survey numbers mentioned in para 2 of the impugned order situated at Village Padri, Khairwari Tola, Tahsil Mada, District Singrauli, claiming his share in the said property. Suit was admittedly dismissed by the learned trial Court vide judgment and decree dated

16.05.2017.

In para 11 of the order, it is noted that as per the law laid down by Supreme Court in Meena Choudhary Vs. Commissioner of Delhi Police and others, in Civil Appeal No.8439-40/2009 (SC), it is held that one cosharer cannot claim injunction against another cosharer and on the basis of such finding rejected an application under Order 39 Rule 1 & 2 of CPC.

In the present case, it has come on record that father of the plaintiff and defendant nos. 1, 4 and 5 had partitioned their property during his lifetime vide partition deed dated 19/05/2005. The plaintiff's case in the suit is that his father had included 0.610 hectare of that land which was purchased by his maternal grand-mother from one Rampyare Jaiswal in the name of the plaintiff which was registered in the name of his father Shri Jhagad Soni as plaintiff was minor on the date of such registration.

Thus, the appellant challenged the partition deed dated 19/05/2005 by filing a civil suit bearing registration no. 185A/2015 which was dismissed by the learned Second Civil Judge Class-II Baidhan vide judgment and decree dated

16/05/2017.

The trial court has held that one co-sharer cannot claim injunction against another co-sharer and infact all the co-sharers are in their settled possession, then granting injunction would have amounted to granting final relief in favour of the plaintiff/appellant.

It has also held that the trial court dismissed the suit and during the pendency of the appeal, the issue as to whether Shri Jhagad Soni was owner of the said 0.610 hectares of land which the plaintiff claims to have received from his Nani Late Bhundal Soni or was property of late Jhagad Soni which was partitioned against his four sons is a relief of final nature and has rightly rejected the application for injunction inasmuch as it has come on record and is not disputed that all the co-sharers are in settled possession of their share of the property.

Thus, infact the appellant's plea when examined is not that he has not made any allegation of threat against the defendants that they are going to usurp the land in his possession and, therefore, the injunction is mandatory but has challenged the partition deed itself that was affected on 19/05/2005.

Thus, it is evident that when there is no prima facie evidence to suggest that the plaintiff is in separate and exclusive possession of the joint property to the exclusion of other co-sharers, no order of injunction could be granted. Infact, the purpose of obtaining injunction under Order 39 Rule 1 could have been achieved if the plaintiff would have prima facie established that the property in question is a joint family property and he would have suffer irreparable loss if injunction is not granted but in the present case when the plea is to challenge the partition deed, then granting any interim injunction would have amounted to granting final relief.

Thus, the lower appellate court has not committed any error in rejecting the application for injunction. The impugned order does not call for any interference.

Accordingly, the appeal fails and is dismissed.

(VIVEK AGARWAL)

JUDGE Later on :

Shri Agnivesh Dubey, learned counsel appeared and prayed for marking his presence on behalf of the appellant.

Accordingly, his presence is marked.

(VIVEK AGARWAL)

JUDGE vy