TARUN KUMAR PODDAR Vs. DEEPTI PODDAR & OTHERS

JUDGEMENT

(1.) Appeal from order under Order 43 Rule 1(r) of Code of Civil Procedure is preferred against the orders dated 08.07.2016 and 03.09.2016, passed by Civil Judge (Senior Division), Kashipur, District Udham Singh Nagar, in civil suit no. 46 of 2016, Tarun Kumar Poddar vs Smt. Deepti Poddar and others, whereby the application for temporary injunction (paper nos. 6C and 45C respectively) filed by the plaintiff was rejected.

(2.) Brief facts of the case are that the appellant / plaintiff filed O.S. no. 46 of 2016, Tarun Kumar Poddar vs Smt. Deepti Poddar and others, seeking relief of partition, prohibitory injunction and to declare the sale deed dated 18.04.2016 executed by defendant no. 1 (respondent no. 1 herein) in favour of defendant no. 4 (respondent no. 4 herein) as null and void. Appellant / plaintiff also filed an application for temporary injunction with a prayer that the defendants / respondents be restrained from selling, mortgaging the properties during the pendency of suit and not to interfere in the properties indicated in Schedule A and B mentioned at the end of the application. Objections were filed by the respondents / defendants, stating therein, that the plaintiff has not come before the court with clean hands and has concealed the fact that one more property was left by late Manoranjan Poddar and the remaining properties in dispute have come in the share of the defendants, therefore, the plaintiff is not entitled for any temporary injunction.

(3.) Learned trial court by impugned order dated 08.07.2016 held that the plaintiff / appellant has not disclosed the third property and so far as these two properties are concerned, plaintiff has not disclosed in whose possession the third property left by late Manoranjan Poddar is lying. It is further held that the plaintiff has concealed this material fact from the court. The defendant no. 1 has executed the sale deed in question in favour of defendant no. 4 after taking sale consideration. Learned trial court relying upon the principle that an injunction cannot be granted against the real owner of the property has held that the plaintiff failed to prove his case and balance of convenience is not in his favour, therefore, plaintiff is not entitled to any relief.