- (1.) This is defendants' appeal in which the substantial question of law involved is as to ''whether prohibitory injunction can be granted to a person who himself is not in actual physical possession''.
(2.) In brief, the plaintiffs filed a suit for declaration that plaintiff No. 1 (Baldev Parshad) is the owner in possession of land measuring 17 Kanals 01 Marla comprised in Rectangle No. 28 Killa Nos.l6(8-0), 17/1(1-0), 24/3(0-14), 25(7-7), Khatauni No. 21, Khewat No.l, situated in village Kamagar alias Machhiwara, Tehsil and District Ferozepur and plaintiff No. 2 (Ajay Kumar) is the mortgagee with possession under plaintiff No.l and that the sale deed executed by defendant No. 5 in favour of defendant Nos. l to 4 on 05.06.1981 in respect of the land in dispute is ineffective on the rights of the plaintiffs, is subject to the right of adjustment at the time of partition of the suit land and a consequential relief was sought to restrain defendant Nos. l to 5 from interfering in their possession. It was alleged by the plaintiffs that the land in dispute is jointly owned by plaintiff No.l and defendant No. 5. Plaintiff No.l is in established possession as a co-sharer since long who had mortgaged it with possession with Tara Singh S/o Sham Singh vide mortgage deed dated 08.03.1961 and Tara Singh had transferred his mortgagee rights to plaintiff No. 2 who is now in possession of the suit land as mortgagee of plaintiff No.l. On 05.06.1981, defendant No. 5 executed a sale deed in respect of the suit land in favour of defendant Nos. l to 4 though he had no right to do so as he had already sold more than his share in the joint land. Thus, the said sale is void, illegal, ineffective on the rights of the plaintiffs and subject to the right of adjustment at the time of partition and the defendants have no right to interfere with possession of plaintiff No. 2 over the suit land as mortgagee of plaintiff No.l. Defendant Nos. l to 4 and defendant No.5 filed their separate written statements. Defendant Nos. l to 4 had alleged that plaintiff No.l along with his other children were the owners of 5000 Kanals of land in village Kamagar. He had transferred the land to various persons by way of sale, gift and mortgage etc., which has been reproduced in detail in the written statement, and regarding possession it was alleged that plaintiff No. 2 is related to plaintiff No.l who has never been in possession of the suit land as a mortgagee. They claimed their possession over the suit land. In the written statement filed by defendant No. 5, the various transfers made by plaintiff No.l were mentioned and regarding possession it was averred that neither plaintiff No.l nor plaintiff No. 2 is in possession of the suit land. Plaintiffs filed replication to the written statement filed by defendant No. 5. On the pleadings of the parties, following issues were framed: - 1. Whether the plaintiff No. 1 is the owner of the suit land? OPP 2. Whether the impugned sale by defendant No. 5 in favour of defendants No.l to 4 is void being in excess of the share of the vendor in joint property as well as being for specific khasra numbers? OPP
(3.) Whether the said sale is subject to the right of the adjustment at the time of the partition of the suit property along with other lands of the various co-sharers of the vendor? OPP;