Sibghat Ullah Khan, J. - (1.) HEARD Sri K. Shailendra, learned Counsel for petitioner and Sri S. Mishra, learned Counsel for respondents No. 2 and 3. Petitioner is plaintiff in O.S. No. 307 of 2008, Virendra Kumar v. Prem Shanker and 11 others. Relief claimed in the plaint is for decree of permanent prohibitory injunction seeking to restrain the defendants No. 1 to 10 from interfering in the possession of the plaintiff over the land in dispute comprised in Plot No. 623, area half acre and from making construction thereupon. Along with the plaint, application for temporary injunction was also filed. Trial Court/Civil Judge (S.D.), Kannauj through order dated 14.9.2011 disposed of the temporary injunction application of the plaintiff and directed both the parties to maintain status quo over the land in dispute till the disposal of the suit. Against the said order, respondent Nos. 2 and 3, Sanjiv Kumar and Vivek Kumar filed Misc. Civil Appeal No. 27 of 2011. A.D.J., Court No. 1, Kannauj allowed the appeal through order dated 2.4.2013, set aside the order of the Trial Court dated 14.9.2011 and rejected the temporary injunction application of the plaintiff. The order of the Lower Appellate Court has been challenged through this writ petition.
(2.) PLAINTIFF and defendants No. 11 and 12, Devendra Kumar and Rajendra Mohan are real brothers. Respondents No. 2 and 3 purchased a small specific part of the property in dispute from Devendra Kumar, real brother of the petitioner on 12.7.1982. They had purchased another small specific part of the property in dispute on 27.1.1982 from Smt. Bina Devi the purchaser from Devendra Kumar through sale -deed dated 4.12.1981. Both parts constitute a very small portion of the entire land. Total sale consideration paid by respondents No. 2 and 3 was Rs. 40,000/ -. The grievance of the petitioner plaintiff is that without partition his brother could not sell specific portion of the plot in dispute. No suit for cancellation of the sale -deeds has been filed by the plaintiff. Even in the suit giving rise to the instant writ petition no prayer either for cancellation of the sale -deeds or for partition has been made. Lower Appellate Court also mentioned that in the year 1983, plaintiff filed O.S. No. 482 of 1983 for injunction against several defendants of the suit giving rise to the instant writ petition including defendants No. 5 and 6/respondents No. 2 and 3 in this writ petition. In the earlier suit they were defendants No. 1 and 2. The said suit was dismissed on 9.12.1983 in default and restoration application was also dismissed on 27.4.2000 but nothing was stated about the said suit in the suit in question. Learned Counsel for petitioner argued that after filing of the earlier suit of 1983, defendants of the same stopped interfering in the possession of the plaintiff, hence the said suit was abandoned. This argument cannot be accepted. If compromise had taken place, it should have been filed in the said suit.
(3.) IN the plaint, absolutely nothing was stated regarding the sale -deeds by Devendra Kumar in favour of different defendants. It was also nowhere stated that there was any clash between plaintiff and his brothers, defendants No. 11 and 12. It was stated in para 4 of the plaint that defendants No. 11 and 12 were being made proforma defendants. It was also stated that even though land in dispute was entered in the revenue record, however it had become abadi land. Lower Appellate Court has mentioned that on 10.11.1981 also Devendra Kumar had executed a sale -deed of a specific portion of the land in dispute in favour of Rajpati and others and in the said sale -deed plaintiff petitioner was a witness which amounted to his admission that formal/mutual partition had taken place in between the brothers.;