DEVI SINGH Vs. KARAMBIR

JUDGEMENT

(1.) By this order, Regular Second Appeal No. 593 and 594 of 2021, arising from a common judgment passed by the trial Court as well as the first Appellate Court shall stand disposed of.

(2.) The appellant, in both the appeals, is the plaintiff in a suit for declaration and mandatory injunction with a consequential relief of permanent injunction. He prays that the defendant No.1 be restrained from alienating the land comprising of the specific khasra numbers and for handing over the possession thereof to defendant No.2 and 3. He further prays for removal of the construction and sought declaration that the sale deed executed on 1/1/2017 is illegal. It is undisputed that the parties are co-sharers. The plaintiff as well as the defendant No.1 along with certain other owners are the joint owners in the unpartitioned land. The plaintiff, vide a sale deed dtd. 6/1/2017, sold the land measuring 14 kanals 8 marlas to the defendant No.4 and 5, respectively. The plaintiff further pleaded that there is no agreement to sell with the defendant No.2 and 3. The plaintiff, while selling the land, delivered the possession of the land measuring 14 kanals and 8 marlas to the defendant No.3 and 4, respectively. The learned trial Court as well as the first Appellate Court, on appreciation of the evidence, have found that the parties are the co-sharers in the joint property. The learned counsel for the appellant admits that the proceedings for partition of the property are separately pending.

(3.) The learned counsel representing the appellant contends that since the sale of 14 kanals 8 marlas of land is in violation of the injunction order, therefore, the sale is void. He further contends that the plaintiff is in possession of the specific portion and the defendants No. 2 and 3 cannot be permitted to handover the possession to the defendant No.4 and 5. While drawing the attention of the Court to the memo of parties, the learned counsel representing the appellant contends that once the defendant No.1 did not challenge the decree passed by the trial Court, therefore, the appeal filed by the defendant No.4 and 5 was not maintainable. He further contends that the trial Court did not frame proper issues.