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1 MP-4932-2025

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE VIVEK JAIN

th

ON THE 28 OF JANUARY, 2026

MISC. PETITION No. 4932 of 2025

SMT. ANITA

Versus

BRIJKISHOR AND OTHERS

Appearance:

Shri Naveen Dubey - Advocate for the petitioner.

Shri Pramod Kumar Thakre-Advocate for the respondents.

ORDER

The present petition has been filed challenging the order dated

28.07.2025 (Annexure P/1) passed by the appellate court whereby the

appellate court has rejected the order passed by the trial court dated

22.02.2025. The trial Court had allowed application for temporary

injunction as against plot No. 148 which has now been vacated by the lower

appellate court.

2. A suit has been filed by the petitioner for partition against the

defendants who are the brothers and sisters of the plaintiff who are six in

number. Therefore, along with the plaintiff, there are seven co-sharers in the

property even as per the plaint assertion.

3. The petitioner had filed an application under Order 39 Rule 1 CPC

stating that the defendants have started construction on plot No. 148 and

unless there is a partition by metes and bounds, which is required to be

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 31-01-2026

13:42:30

2 MP-4932-2025

carried out and any previous partition has to be proved by evidence, the

construction needs to be stopped and alienation of the constructed portion

also needs to be restrained.

4. The trial court by the detailed order dated 22.02.2025, held

that there is prima facie case, balance of convenience and irreparable loss, all

three limbs in favour of the plaintiff/petitioner and granted temporary

injunction. The appellate court has vacated the said arrangement holding that

though the plaintiff has prima facie case in her favour, but no irreparable loss

nor balance of convenience are in favour of the plaintiff and therefore the

temporary injunction has been vacated. The appellate court has further

directed the trial court to seek undertaking to the tune of Rs 5 lakhs from the

defendant No. 1.

5. The learned counsel for the petitioner has vehemently contended

that there are too many factual disputes in the suit which are to be proved by

way of evidence and at this stage the appellate court could not have given

such a finding which virtually amounts to passing a preliminary decree. By

placing heavy reliance on the judgement of Allahabad High Court in FAFO

No.1228 of 2012, (Sharif Ahmed and others versus Ms. Chakshu and

Associates), it is argued that the temporary injunction can be sought against

co-sharers because possession of one is treated to be possession of all and

since the co-sharer has a right on every inch of common property, therefore

other co-sharers cannot be permitted to raise construction and change the

nature of property without getting the shares partitioned. Further reliance is

made on the judgement of Hon'ble Apex court in (2004) 8 SCC 488

Signature Not Verified

Signed by: ARVIND KUMAR

MISHRA

Signing time: 31-01-2026

13:42:30

3 MP-4932-2025

(Maharwal Khewaji Trust (Regd.) Faridkot Vs. Baldev Dass) to contend that

the court should not permit the nature of the property to be changed which

also includes alienation or transfer of the property that will lead to

multiplicity of co-sharing.

6. Per contra, the counsel for respondents/defendants has vehemently

supported the order of the appellate court.

7. Upon considering the rival submissions and on perusal of the

record, it is seen that the contention of the petitioner is that there are plots

No.148, 18, 20, 21 and 24, having different areas which are the disputed

properties and these are the joint family ancestral properties. However, the

two brothers are trying to grab the entire property and want to deny the share

of the property to the sister and therefore the suit for declaration and partition

has been filed, also seeking separate possession. The defendants No.1 and 2

appeared and stated that there has been some previous partition between the

parties and the interes