- (1.) D. K. Seth, J. Temporary injunction was granted by an order dated 9th Novem ber, 1995 passed by the learned Civil Judge, Junior Division, Mohammdabad, district Azamgarh in Suit No. 557 of 1993. The defendant No. 4 filed an appeal being Ap peal No. 162 of 1995. The Additional Dis trict Judge, Vth Court, Azamgarh by an order dated 25-1-1997 allowed the said appeal and reversed the interim order granted.
(2.) A counter-claim has been lodged by the defendant No. 4 seeking partition and delivery of possession on the ground that the plaintiff had admitted one third share in the property and the defendant No. 4 had purchased two third share in the property from his co-sharer. Dr. Padia, learned coun sel opposing the present revisional applica tion contended that the plaintiffs cannot claim possession over two- third share of the property since according to the plaintiffs own admission they are owner of one-third share. Therefore, even if assuming but not admitting that the plaintiffs are in posses sion of balance two-third share also, in that event such possession is illegal. The plaintiff cannot claim possession against the rightful owner namely, the defendant No. 4 who had acquired interest in respect of two-third property. Therefore, according to him the suit cannot be maintained and, therefore, injunction can not be granted. Sri A. K. Srivastava, learned counsel for the petitioner on the other hand con tended that the property is family dwelling house, which has not been partitioned, as is apparent from the very prayer made in the counter-claim for partition and possession by the defendant No. 4 who is a stranger to the family. By reason of his acquisition of the property he can at best enforce partition but he has no right to enter into possession of the family dwelling house. This proposition is being disputed by Dr. Padia, learned counsel for the respondent that in the plaint it has been admitted that the property consists of considerable quantum of land though on a part of which might be building. Therefore, the said proposition as raised by the learned counsel for the petitioner cannot be sustained.
(3.) DR. Padia, learned counsel for the respondent relies on the case of Mahadev Savalram Shelke v. Pune Municipal Corpora tion, 1995 (3) SCC 33 :1995 (2) JCLR 139 (SC), in support of his contention that no injunction can be granted in favour of a person who is in illegal possession against the rightful owner. He stressed his contention relying on para 9 of the said judgment. Ave heard the learned counsel for the parties at some length. So far as the proposition advanced by Dr. Padia that in junction cannot be granted in favour of a person who is in illegal possession against rightful owner is concerned there is no man ner of doubt and the same is absolutely a clear proposition well settled in law. Inas much as one can enforce or defend his pos session against all except the rightful owner however, in the present case, the said proposition cannot be attracted in view of peculiar facts and circumstances of the case at hand. Herein admittedly the partition and possession has been sought in the counter-claim which admittedly shows that despite acquisition of the property the defendant is not in possession, by reason whereof he had sought for delivery of pos session that too after partition. At this stage it is not possible to decide as to whether there has been partition and as to whether the defendant No. 4 had acquired demar cated portion or not.;