JEEVATI BAI Vs. SURMOTI

JUDGEMENT

(1.) THE petitioners have preferred this writ petition under Article 227 of the Constitution of India being aggrieved by the order passed by the 6th Additional District Judge, Ambikapur, dated 26th July, 2003 in Misc. Civil Appeal No. 32/2002 arising out of the order dated 24th April, 2002 passed by the Additional Civil Judge, Class-I, Ambikapur in Civil Suit No. 8-A/2001.

(2.) THE brief facts leading to filing of this writ petition are that the petitioners filed a civil suit for declaration of the title and permanent injunction and the relief of declaration is sought to the effect that the sale deed executed on 28-2-1992 in favour of the respondents in respect of the land described in Schedule B of the plaint be declared null and void and the petitioners be declared as owners, of the disputed land. The sale land in question is ancestral property of the plaintiffs/petitioners being Joint Hindu Family property; the same was acquired by Khekhe, the grand-father of petitioner Nos. 3 and 4. It has further been mentioned in the petition that the Joint Hindu Family property was not partitioned. As respondent Nos. 1 and 2 are interfering in the possession and the petitioners also came to know that respondent Nos. 1 and 2 got executed the sale deed in respect of the suit property by forging the signature of their father Saynath and got mutated their name in the revenue records without any intimation to the petitioners. They had also tiled an application for temporary injunction under Order 39 Rules 1 and 2 for restraining the respondents from interfering with the possession of the petitioners.

(3.) THE Trial Court after hearing the parties granted injunction in favour of the petitioners. However, on appeal the Appellate Court vide its impugned judgment set aside the order passed by the Trial Court and rejected the injunction application filed under Order 39 Rules 1 and 2 on the ground that undisputedly after execution of the sale deed by the predecessor of the petitioner namely Saynath the respondents are in possession therefore by way of the interim injunction they can not be restrained as they are in possession, i.e., the petitioner are not in possession of the suit property. I have heard learned Counsel for the petitioner.