AJAI Vs. VTH ADDL DISTRICT JUDGE AGRA

JUDGEMENT

(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.

(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.