- (1.) THE instant writ petition has been filed by the petitioner for quashing the orders dated 15.10.2009 passed by O.P. No. 1 in Misc. Appeal No. 28 of 2009 whereby the appeal of the petitioner was dismissed and also order dated 18.07.2009 passed by O.P. No. 2 in Regular Suit No. 1021 of 2008 rejecting the temporary injunction application of the plaintiffpetitioner. The petitioner has also prayed for a mandate against O.P. Nos. 3 to 5 for restraining them from disposing of or alienating share of the petitioner in the ancestral land and from interfering in the peaceful possession and enjoyment of the petitioner over his share during the pendency of the suit. Brief facts giving rise to the filing of the instant petition are that the petitioner filed a suit in the Court of Civil Judge (Junior Division), Barabanki contending that defendant No. 1 Sri Ram is his father who is aged about 82 years and due to old age he has lost the capacity of understanding and cannot look after his interest. The plaintiff is the son of the defendant No. 1 (O.P. No.3 herein) from his first wife while defendant Nos. 2 and 3 (O.P. Nos. 4 and 5 herein) are his sons from second wife.
(2.) THE defendant No. 1 is the owner of the agricultural land detailed in Paragraph No. 3 of the plaint situated in various Revenue villages and is the owner of 1/12 share out of the said lands while the plaintiff is in possession over half share out of this land. Further contention is that the agricultural land is ancestral and defendant No. 1 inherited it from his ancestors. The defendants have no concern with the share of the plaintiff and the plaintiff is in exclusive possession. The plaintiff has also stated that defendant Nos. 2 and 3 are misleading defendant No. 1 and he is under their influence and are insisting that defendant No. 1 should dispose of the ancestral land otherwise it will come in the name of the petitioner after his death and in furtherance of the advice defendant No. 1 is disposing of the land including the share of the plaintiff also causing loss to him. The defendant No. 1 has already sold a grove in which the plaintiff also has a share on 01.11.2008 and no money has been paid to the plaintiff. In this backdrop, the plaintiff has filed Suit No. 1021 of 2008 for perpetual injunction against the defendants praying for restraining them from interfering in the possession of the plaintiff and further for prohibiting the defendant No. 1 to alienate the said land. A temporary injunction application 6C was also moved by the plaintiff under Order 39 Rule 1 C.P.C. supported by an affidavit. The defendants contested the suit and filed written statement and also filed objection against the temporary injunction application. The learned Additional Civil Judge (junior division) vide his order dated 18.07.2009 has rejected plaintiffpetitioner's application 6C for temporary injunction observing that the plaintiff has not filed Khasara to prove his possession over the disputed land and since defendant No. 1 is Bhumidhar with transferable rights of the disputed lands, therefore, his possession over the said lands will be deemed to be in existence. Further the Court has held that no injunction can be granted against the actual owner. Aggrieved from the order and its formal order a Misc. Appeal was filed in the Court of District Judge, Barabanki which too was dismissed vide judgment and order of O.P. No. 1 dated 15.10.2009. Aggrieved against both the orders the instant writ petition has been filed on the grounds that the petitioner holds equal share and right over the ancestral land alongwith his O.P. No. 3 and after the death of petitioner's grand father the petitioner's share in the ancestral land was demarcated and the petitioner is in possession of his share. The sale deed executed by O.P. No. 3 on 01.11.2008 was without any necessity of the family members and the petitioner has already challenged the said sale deed by filing regular Suit No. 1059 of 2008 which is pending. It has also been alleged that O.P. No. 3 has gifted ancestral land situated in village Baraiya to his daughterin laws (wives of O.P. Nos. 4 & 5) without the consent of the petitioner though petitioner is a cosharer in the said land. O.P. No. 3 has also executed a sale deed of the ancestral land in which also the petitioner has share without his consent and without any necessity of the family members. Therefore, the petitioner has filed a Suit No. 1095 of 2008 challenging the sale deed which is also pending. It is further stated that O.P. No. 3 has also executed another sale deed on 02.06.2009 of land in which also the petitioner has share and the petitioner has filed R.S.568 of 2009 before Civil Judge (Junior Division), Barabanki which is also pending. The main ground which has been taken by the petitioner is that O.P. No. 3 is Karta of HUF and has been executing sale deeds, gift deeds of the ancestral land without any necessity or requirement for the family and without taking any caution and he cannot act against the interest of the family in the capacity of Karta by eliminating the interest of the petitioner who is a coparcener. In this view of the matter, it was required that the O.P. No.3 ought to have been restrained from disposing of the disputed ancestral land in the capacity of the Karta of coparcenary and from interfering in the peaceful possession and enjoyment of the plaintiff over his share in the disputed property.
(3.) COUNTER affidavit on behalf of O.P. No. 3 has been filed wherein the orders of both the Courts below have been defended. It has been contended that the name of the petitioner is not recorded in the revenue papers as cosharer, therefore, the petitioner has no right to claim any title in the disputed land. Copy of Khatauni has been filed as Annexure CAI to the counter affidavit. It has also been contended that no share in the land in dispute was ever demarcated as has been alleged by the petitioner. The petitioner lives in Lucknow for the past 20 years and is working as Samiksha Adhikari in Civil Secretariat and has no possession or occupation over the disputed land. It has been admitted that the suits challenging the transfer deeds executed by the Opposite Party No. 3 have been filed. However, it is contended that they have been filed on fictitious grounds. To avoid unwanted litigation, the O.P. has disposed of his property according to his own wishes. The grounds of the petitioner are beyond pleadings of original suit and such are not tenable. The petitioner is not a coparcener of the O.P. No. 3 as alleged and as such has no right in the property in dispute and since the petitioner has no title and possession, therefore, no prima facie case was made out and the balance of convenience was also not in his favour, hence no interim order could have been passed in his favour. Reply by the petitioner has been filed reiterating the averments of the petition.;