Sanjay Misra - (1.) HEARD Sri Arvind Srivastava learned counsel for the defendant-appellant and Sri H. M. Srivastava alongwith Sri Neeraj Srivastava learned counsel who has put in appearance by caveat on behalf of the plaintiff respondent No. 1. The respondent Nos. 2, 3, 3/1 and 4 have been described as proforma defendant-respondents being certain purchasers of the land. Since the contesting parties have been heard, this appeal is being decided today itself on the substantial questions of law framed in the memorandum of appeal.
(2.) THIS second appeal has been filed against the judgment and order dated 5.12.2008, passed in Civil Appeal No. 20/2008 by the Additional District Judge IV, Firozabad whereby the defendant's first appeal has been dismissed and the judgment and decree of the trial court issuing an injunction in favour of the plaintiff-respondent against the defendant-appellants has been confirmed. Sri Arvind Srivastava learned counsel for the defendant-appellants has assailed the impugned judgment on the ground that there was no partition effected between the co-sharers and when the name of all the co-sharers was recorded in the revenue records over plot No. 687 Area 1.08 decimal, the courts below could not decree a suit for injunction at the instance of one co-sharer against the other co-sharers. He has also submitted that the courts below have misread the statement of D.W. 1 and D.W. 2 where they have not admitted partition amongst the co-sharers and have relied upon a solitary sentence in the oral statement and hence have committed an illegality by misreading the statement because the partition alleged in that sentence related to possession and sale of the share. He also states that document No. 114 (Ga) which was khatauni of plot No. 687 clearly recorded that Rajveer and others were entered over the plot in question and the courts below have committed an illegality in holding that the name of Rajveer was entered over the plot in question and hence the revenue entry was a clear indication of partition between the parties. Sri Arvind Srivastava has placed reliance on a decision of the Hon'ble Apex Court in the case of Kamla Prasad v. Kishna Kant Pathak and others, 2007 (4) SCC 213 : 2007 (2) AWC 1764 (SC) and has relied upon paragraphs 12 and 15 of the judgment to state that when the plaintiff's case itself was that he is not the sole owner of the property and the defendants also had right, title and interest therein, the dispute of shares amongst the shareholders could only be decided by the revenue court and the civil court could not entertain a suit for injunction.
(3.) HE has also relied upon a decision of the Hon'ble Apex Court in the case of Chinthamani Ammal v. Nandagopal Gounder, 2007 (2) AWC 1619, to state that there is a presumption with regard to continuance of a joint family and the party who raises a plea of partition is to prove the same. Even separate possession of portions of the property by the co-sharers itself would not lead to a presumption of partition. He states that in Jahar Singh v. Board of Revenue, U. P., Allahabad, 2005 (3) AWC 2877, a learned single Judge of this Court has clearly recorded that even exclusive possession for about 40 years cannot confer any right upon the party to have that particular plot in his share and leave the other co-sharers to take the other plots. The possession of one co-sharer is always possession of all the co-sharers and actual occupation of the shareholders may be a relevant factor only when other things including market value are equal.;