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Madhya Pradesh High Court · body

2013 DIGILAW 753 (MP)

Govind Singh v. Hamir Singh

2013-07-03

S.K.Gangele

body2013
ORDER 1. The petitioners have filed this petition against the orders dated 22.4.2013. (Annexure P/1) and dated 12.3.2013 (Annexure P/2) passed by the trial Court. 2. The petitioners/plaintiffs filed an application for temporary injunction before the trial Court. They pleaded that they are owners of the land and the respondent No. 1 purchased some portion of the land from Baja Bai, respondent/defendant No. 2. However, the aforesaid defendant had no right to sell the land to the defendant No. 1 because it was the property of joint Hindu family. It was further pleaded that no possession was handed over to the respondent No. 1 in pursuance to the sale deed. Hence, the petitioners have a prima facie case and balance of convenience in their favour. 3. Defendants No. 1 and 2 in their reply pleaded that respondent/defendant No. 2 sold the land in favour of defendant No. 1 by registered sale deed dated 17.12.2012 and the defendant No. 1 was also put into possession. There was an oral partition between the parties and the defendant No. 2 had been cultivating the land properly. 4. The trial Court has specificlly observed that the defendant No. 2 executed the sale deed and thereafter the possession of the land was also handed over in favour of the defendant No. 1. The petitioners are not in possession over the land. The Court further observed that one co-sharer in not entitled to receive temporary injunction against another co-sharer until and unless the property is partitioned. however, in the present case, the possession of the land was handed over to the defendant No. 1, hence, the plaintiffs are not eligible to get any order of temporary injunction from the Court. 5. It is an admitted fact that no mutation has been done by the competent authority of the land, which was purchased by the defendant No. 1 from defendant No. 2. Learned counsel for the defendant No. 1 admitted the fact that proceedings of mutation are pending before tha authority. Apart from this, there is no finding recorded by the Court that in khasra entries who has been recorded in possession over the land. Learned counsel for the defendant No. 1 admitted the fact that proceedings of mutation are pending before tha authority. Apart from this, there is no finding recorded by the Court that in khasra entries who has been recorded in possession over the land. Only on the basis of facts mentioned in the sale deed and the pleadings of the defendant No. 2 in the written statement that the possession of the land was handed over to the defendant No. 1, both the Courts recorded the findings that the possession of the land was handed over to the defendant No. 1. It is a settled principle that a purchaser of a share of co-parcener has no legal right to receive delivery of possession until and unless the property has not been partitioned. 6. Learned counsel for the petitioners relied on the judgment of this Court passed in Kallu v. Smt. Prem Bai and others reported in 1997 RN 238. 7. Looking to the aforesaid facts of the case, principle of law and the fact that the land is of co-parcener and there is no finding that there was partition of property between the co-parceners, the writ petition is disposed of that the parties are directed to maintain status quo in regard to suit land during pendency of the suit. The impugned orders passed by the trial Court and the first appellate Court are modified accordingly. 8. No order as to costs.