RAJKUMARI Vs. SHIV KUMAR AND OTHERS

JUDGEMENT

(1.) The petitioner has filed the present petition challenging the order dated 12.09.2017 passed by the Additional District Judge, Amarwara, District Chhindwara in Misc. Civil Appeal No.100013/2016 by which the appellate Court has reversed the order passed by the trial Court and granted an injunction in favour of respondents No.1 to 3.

(2.) Respondents no.1 to 3 filed a suit for partition, separate possession, declaration and injunction against the petitioner with respect to the suit lands detailed in plaint. The Disputed lands were originally owned by one Chattu. On death of Chattu, the land devolved upon his widow namely Surtibai. Thereafter, by virtue of inheritance, the disputed land came to be recorded in name of Chiddilal who was maternal grand father of respondents no.1 to 3 and father of the petitioner. It was alleged that respondent no.1 to 4 being hairs of Chiddilal's daughter are entitled for ?th share in the suit property. The suit property has been partitioned, respondents no.1 and 2 alienated a part of property to respondent no.3 by registered sale-deed dated 26.05.2015. The said property has been partitioned behind back of respondents no.1 to 3, therefore, respondents no.1 to 3 filed a civil suit. Along with the said plaint, respondents no.1 to 3 also filed an application under Order 39, Rule 1 and 2 of the CPC seeking temporary injunction for restraining the petitioner from alienating the suit property. On summons being issued, the petitioner filed written statement and opposed the claim. The trial Court vide order dated 24.08.2016 dismissed the application filed by respondents no.1 to 3 under Order 39, Rule 1 and 2 of the CPC. The trial Court while dismissing the application on one hand has held that respondents no.1 and 2 have derived advantage from the partition already affected and have alienated the suit property to respondent no.3 and on the other hand are claiming that the property is not partition which was not established prima facie case in favour of respondents no.1 to 3. Being aggrieved by the aforesaid, the respondents no.1 to 3 preferred an appeal. The appellate Court, however, vide impugned order dated 12.09.2017 allowed the appeal and granted injunction in favour of respondents no.1 to 3. Being aggrieved by that order, the petitioner has filed the present petition.

(3.) Learned counsel for the petitioner argues that the impugned order passed by the first Appellate Court is illegal, erroneous and contrary to law. He further submits that the trial Court has erred in holding that the partition has already been done. On the other hand, respondents no.1 to 3 are claiming that the properties is not partitioned. He further submits that the interest of respondents no.1 to 3 are abundantly protected by section 52 of the Transfer of Property Act. He further argues that the appellate Court committed an error of law in allowing the application preferred by the respondents under Order 41, Rule 17 of the CPC. Such an application is not maintainable before the appellate Court in as much as it would be applicable where the appeal is preferred against the decree. He relied on the judgment passed by the Apex Court in the case of M.Gurudas and Others v. Rasaranjan and Others reported in (2006)8 SCC, 367 as well as the judgment passed by the Apex Court in the case of Mandali Ranganna and Others v. T. Ramachandra and Others reported in (2008)11 SCC, 1 .