A plaintiff seeking a temporary injunction must approach the court with clean hands and cannot obtain relief against co-owners without proving exclusive possession.

This petition under Article 227 of the Constitution of India has been preferred by the petitioner/plaintiff being aggrieved by the order dated 06.04.2024 passed in M.C.A. No.02/2022 by the First Additional District Judge to the Court of First District Judge, District Barwani reversing the order dated 15.02.2022 passed in Civil Suit No.09-A/2019 by the Civil Judge, Junior Division, Rajpur, District Barwani and rejecting the application under Order 39 Rule 1 and 2 of the CPC preferred by him.

2. As per the plaintiff, he is the owner of the suit lands total measuring 5.860 hectares, Gram Lingwa, Tehsil Rajpur, District Barwani. Earlier his father, Bau was the owner of 1/3rd i.e. 1.950 hectare of the suit land and Ganya and Raymal were the owners of the remaining share.

During his lifetime Ganya and after his death his widow, Puniyabai had given 1/3rd share in the suit lands in favour of plaintiff. A relinquishment deed in that regard was also executed on 01.08.1986. Raymal also during his lifetime had orally gifted his 1/3rd share in the suit lands in favour of the plaintiff. In a partition having been effected between plaintiff and his brothers Tukaram, Nathya and Omkar they had been given lands at Gram Gujarbawdi, Tehsil Bhagwanpura, District Khargone in lieu of the suit lands. The same are total measuring 13 acres. They hence do not have any share in the suit lands.

3. The further case of plaintiff is that his brothers, the defendants, made an application under Section 178 of M.P. Land Revenue Code, 1959 before the Tehsildar, Rajpur for partition of the suit lands which was allowed which order has been maintained in appeal by order dated 04.04.2019. They could not have done so because they have already been given lands in oral partition at Gram Gujarbawdi and do not have any share in the suit lands. Defendants on the basis of the aforesaid proceedings are attempting to take possession of the suit lands.

4. Contending aforesaid, the plaintiff has instituted an action for declaration of his title to the suit lands and for permanent injunction restraining the defendants from interfering with his possession over the same. Along with the plaint, he also filed an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction restraining the defendants from interfering with his possession over the suit lands.

5. The legal representatives of defendant No.1 filed their reply to the application admitting the contents of the same. Defendant No.2 however contested the application by filing his reply submitting that the suit lands are their ancestral lands and no land has been given to them in any oral partition. No such partition has ever been effected between the parties. Application had been preferred before the Tehsildar for partition of the suit lands in which partition was directed which order was affirmed in appeal on the basis of which proceedings have been instituted by him under Section 250 of the Code, 1959 for obtaining possession of his share in the suit lands hence plaintiff is not entitled for issuance of any temporary injunction in his favour.

6. The trial Court allowed plaintiff’s application holding that he is in possession of the suit lands and has hence prima facie proved his case.

The said order has been set aside by the appellate Court in appeal preferred by defendant No.2 holding that since partition has already been directed by the Revenue Court on the basis of which proceedings have been instituted by defendant No.2 for obtaining possession of his share in the suit lands, plaintiff is not entitled for issuance of temporary injunction in his favour particularly against a co-owner.

7. The aforesaid order has been assailed by the plaintiff primarily on the ground that since the Appellate Court had itself held plaintiff to be in possession of the suit lands, temporary injunction ought to have been issued in his favour. The other brothers namely Tukaram and Nathya have supported his case hence mere