A co-owner cannot alienate specific portions of undivided property without partition, and if irreparable loss is established, a temporary injunction should be granted.

ORDER

The present petition under Article 226 of the Constitution of India is directed against the order dated 19.02.2025 passed by learned Xth District Judge, Gwalior District Gwalior in Civil Appeal No.27/2025 dismissing the appeal filed by the petitioner against the order dated 30.01.2025 passed by Xth Civil Judge, Senior Division, Gwalior in Civil Suit No.92A/2025 dated 30.01.2025 whereby an application for temporary injunction under Section 39 Rule 1 & 2 CPC filed by the petitioner-plaintiff had been rejected.

2. In short, the facts of the case are that a suit for declaration of right and permanent injunction has been filed by the petitioner / plaintiff against the defendant/respondent with the pleadings that petitioner / plaintiff and defendant/respondent are co-owners of the property bearing House no. 1477, Ward no. 57. The petitioner has 31.11% share in the plot in question and respondent no. 3 is the second co-owner, owning 68.89 % of the property. The petitioner had acquired the undivided share in the land in question from its former land owner i.e., Om Prakash Gupta through registered sale deeds dated 04.03.2022 & 09.03.2022. The respondent no. 3 had purchased 68.89 % of undivided share in the land/plot from its owners vide registered sale-deeds dated 16.03.2024. The land in question is in co-ownership of the petitioner and the respondent.As the respondent / defendant was trying to raise construction without any partition and is trying to alienate the property without any partition hence, the suit for declaration of right and permanent injunction was filed for restraining the defendant/ respondent to not to alienate any specific portion of the property unless and until there is a partition and not to raise construction and it is further prayed that the defendant / respondent be restrained not to disturb the possession of the petitioner/ plaintiff as co-owner of the property. In the suit, an application under Order 39 Rule 1 & 2 CPC was filed by the plaintiff/ petitioner with the pleadings that as the defendant/respondent is trying to raise construction and change the nature of the property and further to alienate the property though there is no partition between the co-owners, hence, prayed that the defendant/respondent no.3 be restrained from alienating any specific portion of the property and not to disturb the possession of the petitioner/plaintiff and he be directed to maintain status quo. Defendant/respondent filed reply to the aforesaid application and prayed for its rejection. Learned trial Court after hearing the parties on the application under Order 39 Rule 1 & 2 CPC, rejected the application vide order impugned dated 30.01.2025. Against the order impugned dated 30.01.2025, Misc. Civil Appeal No. 27/2025 under Order 43 Rule 1 CPC was filed , which was also dismissed vide order dated 19.02.2025. Hence, assailing the order dated 19.02.2025 and 30.01.2025, the present petition has been filed.

23. Learned senior counsel for the petitioner had submitted that when both the Courts below have held that there is no partition between the petitioner/plaintiff and defendant/respondent No.3 and even when the respondent No.3/defendant has not come up with a case that there is any partition rather it is admitted by him that he had purchased undivided 68.89% share from common ancestor, learned courts below should had granted injunction in favor of petitioner, but in not doing so they had erred in law.

4. Learned senior counsel has further argued that until there is partition, any co-owner cannot be allowed to alienate any specific portion of undivided property and as present respondent No.3 is trying to oust the petitioner from the property of which she is owner and though the Appellate Court had set-aside the finding with regard to division of property between two as well as possession of present petitioner-plaintiff over the property which was wrongly recorded by the trial Court but on the premise that since no relief of par