Full Judgment
W.P.No.8358/2012 07.08.2012 Shri A.P.Shah, Advocate for the petitioner.
None for plaintiffs/respondents no.1 to 4.
None for defendant/respondent no.5 Shri Rohini Prasad Tiwari, Govt.
Advocate for respondent no.6/State of M.P.They are heard.
By this petition under Article 227 of the Constitution of India, the petitioner/defendant no.1 is challenging the validity of the impugned order dated 14.5.2012 passed by Additional District Judge, Baidhan, District Singrouli in Misc.
Civil Appeal No.39/2011 by which the order dated 17.8.2011 passed by learned Second Civil Judge, Class II, Singrauli in Civil Suit No.110-A/2011 by which the application for issuance of temporary injunction of plaintiffs has been rejected, has been reversed and set aside.
No exhaustive statements of fact are required to be narrated for the purpose of this petition.
Suffice is to say that a suit for declaration and injunction and in the alternative for possession has been filed by the plaintiffs with an averment that the property in question is the property of the HUF and the second defendant Vindhyachal sold a part of suit property to defendant no.1 Lilawati for which she was not having any right.
The application for issuance of temporary injunction has been filed by the plaintiffs praying that till the decision of the suit their possession be protected and purchaser Smt.
Lilawati be restrained from interfering in their possession.
This application was opposed by fiRs.defendant Lilawati by filing a reply and learned Trial Court dismissed the application of the plaintiffs.
The fiRs.appeal which has been filed by the plaintiffs has been allowed by the impugned order and the defendants have been restrained from interfering in the possession of the plaintiffs.
In this manner this petition has been filed.
I have heard learned counsel for the parties and I am of the view that the impugned order passed by the FiRs.Appellate Court need no interference.
On bare perusal of the impugned order of FiRs.Appellate Court para 10 onwards, it is gathered that the suit property includes the property which has been sold out by the second defendant to fiRs.defendant is the property of HUF.
The parties belong to Tahsil Baidhan, District Singrauli which was a part of erstwhile Vindya Pradesh where Banaras School of Mitakshara Hindu Law is applicable wherein a coparcener is not having any exclusive right to alienate the property of HUF without obtaining prior permission from other coparceners and if any sale deed is effected it would be a void sale deed.
In this context, Article 260 of Mulla's Hindu Law is quite relevant.
This point has been dealt at length by the Full Bench of this Court in case of Diwan Singh versus Bhaiyalal 1997(2) JLJ 167.
The aforesaid decision has also been followed by this Court in Indrabhan and another versus Chhotelal 2007(III) MPJ.420.
In this view of the matter, since a part of the suit property has been sold out exclusively by second defendant in favour of fiRs.defendant and admittedly the second defendant is the member of HUF, therefore, according to me, the learned FiRs.Appellate Court did not commit any error in allowing the appeal of plaintiffs because still they are possessing the suit property since they have never sold out the suit property to fiRs.defendant.
I do not find any ground to interfere in the impugned order passed by learned FiRs.Appellate Court.
This petition is accordingly dismissed by affirming the said order.
However, learned Trial Court is hereby directed to decide the suit as early as possible preferably within a period of 9 months from the date of receipt of certified copy of this order.
With the aforesaid observation, this petition is dismissed.
(A.K.Shrivastava) Judge rao