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2014 DIGILAW 251 (MP)

Kanchan Singh v. Daulat Singh (since dead)

2014-02-28

ROHIT ARYA

body2014
ORDER 1. This writ petition under Article 227 of the Constitution of India, at the instance of plaintiffs is against the concurring order of the first appellate Court dated 18.1.2012 (Annexure P/1) while deciding the appeal against the order dated 30.8.2011 (Annexure P/2) in Civil Suit No.41A/11, by which dismissed the application under Order 39 Rules 1 and 2 of CPC. 2. The subject - matter of the suit relates to partition and possession of joint Hindu family property as described in the plaint. During pendency of this suit, plaintiffs moved an application under Order 39 Rules 1 and 2 of CPC seeking temporary injunction against the defendants for not alienating the suit property on the ground that if the suit property is alienated, it will cause prejudice to the interest and right of the plaintiffs in the suit property, as it will lead to multiplicity of proceedings. However, the trial Court rejected the application and same was upheld by the appellate Court by placing reliance upon judgment rendered by the apex Court in the case of Sunil Kumar and another v. Ram Parkash and others ( AIR 1988 SC 576 ). 3. Upon bare perusal of the judgment, it appears that in the aforesaid judgment the issue involved was in relation to alienation of property by coparceners, in that context the apex Court had ruled that permanent injunction cannot be granted against Karta of the family being manager of the property who has a right to dispose of joint Hindu family property to meet out legal necessity to discharge his antecedent debt which is not tainted with immorality. As such, the aforesaid case is distinguishable. In the instant case, suit for partition has been filed wherein all the coparceners/plaintiffs have sought share in the joint Hindu family property and sought possession. Therefore, in this context, application for injunction was filed, restraining the defendants from alienating the coparcenery property. Therefore, this Court is of the opinion that the Courts below were not justified in dismissing the application. 4. In view of the above, the orders passed by the learned Courts below are not sustainable in the eye of law. Accordingly, the same are set aside. The respondents – defendants shall not alienate the coparcenery property i.e subject-matter of partition as claimed in the plaint during the pendency of suit. 4. In view of the above, the orders passed by the learned Courts below are not sustainable in the eye of law. Accordingly, the same are set aside. The respondents – defendants shall not alienate the coparcenery property i.e subject-matter of partition as claimed in the plaint during the pendency of suit. The trial Court is directed to proceed with the suit and decide the same as early as possible, preferably within a period of six months, as the suit is pending for the last three years. 5. At this stage, counsel for respondents No.15,17, 18 and 19 makes a statement at the Bar that they are not concerned with the partition amongst co-parceners in respect of coparcenery joint Hindu family property owned by them, they are legal representatives of Khoob Singh against whom relief has not been sought. Therefore, they may not be injuncted from alienating property which is not part of the coparcenory property. 6. In view of this submission, this Court without commenting upon on the submissions so made, liberty is granted to the respondents No.15,17, 18 and 19 to move an appropriate application before the trial Court which shall advert to it on its own merits and decide the same accordingly in accordance with law. 7. With the aforesaid, petition stands allowed and disposed of.