B. Dikshit, J.
1. This is an appeal against order dated 18th August, 1998 passed by Civil Judge, Agra by which an order of injunction issued earlier has been vacated.
2. The brief facts of the case are that one Smt. Kanak Lata and plaintiff/appellant Smt. Urmila Devi jointly purchased a piece of bhumidhari land consisting of plot No. 425/area one bigha and 426 Minjumla/seven biswa situate in Mauza Gehrana Mustqll pargana and tehsil Agra in the year 1965 having equal share. Out of the said area of one bigha seven biswa, seven biswa of plot No. 426 and five biswa of plot No. 425 was acquired by Rig. Division of Irrigation Department for which compensation was paid to the appellant and Smt. Kanak Lata leaving 15 biswa of plot No. 425/1 with Smt. Urmila Devi and Smt. Kanak Lata. Smt. Kanak Lata by a sale deed dated 2.4.1986 sold 7.5 biswa of said land to defendant/respondents Pooran Chand and Abhay Gupta, which is equivalent to her share in whole of the plot. When Pooran Chand and Abhay Gupta started construction on one half of western portion of the land, Smt. Urmila Devi filed a suit for permanent injunction in which a temporary injunction was granted in her favour on 28th April, 1998 by Court below. Being aggrieved against the order of injunction, an appeal was filed before this Court and on 27th May, 1998 this Court ordered the parties to maintain status quo. However, the defendant got the appeal before this Court dismissed as not pressed on 29th May, 1998.
3. On 1st of July, 1998, the defendants filed an application before Court below for recall of injunction order dated 28.4.1998 and by the Impugned order dated 18th August, 1998. the Court vacated order of injunction in exercise of power under Order XXXIX. Rule 4, C.P.C. Hence this appeal filed by the plaintiff.
4. We have heard Sri Vineet Saran, learned counsel for the plaintiff/appellant and Sri Dinesh Dwlvedi, learned counsel for the defendants/respondents, and have perused the record.
5. It was argued by the learned counsel for the respondents that a suit for injunction was. not maintainable and the proper remedy for the plaintiff was to file a suit for partition. Learned counsel for the plaintiff/appellant has cited certain authorities in which it has been held that a co-sharer can file a suit for injunction against another co-sharer so as to prevent construction of a building over the undivided land.
6. In our opinion, it is not necessary to go into this legal question because we find from record that not only a suit under Section 176 of U. P. Zamindari Abolition and Land Reforms Act (in short 'Act') for division of holding had been filed by Smt. Kanak Lata but the suit was also decreed and a preliminary decree was passed. This is admitted by plaintiff Smt. Urmila Devi herself in her application dated 10th July, 1998 that an ex parte preliminary decree has been passed by Sub-Divisional Officer, Agra on 27th July, 1997 in the suit filed by Smt. Kanak Lata against her. The Court assigned one half share to Smt. Kanak Lata and one half share to Smt. Urmila Devi but no final decree has been prepared as neither party applied for the preparation of the same. It is well-settled that in a suit for partition, all the co-sharers, who have been assigned share, are in the position of a decree-holder. Therefore, the proper course for Smt. Urmila Devi was to have filed an application in that suit for preparation of final decree on the basis of preliminary decree dated 27.7.1987. As the suit for division of holding is still pending while transferee of Smt. Kanak Lata started construction over part of the plot soon after purchase of said plot. It was not open to Smt. Urmila Devi to have filed a suit for permanent injunction.
7. The learned counsel for appellant contended that in a suit for division of holding, no injunction can be issued under Order XXXIX of Code of Civil Procedure in respect of grant of temporary injunction. We are not inclined to accept the said contention in view of Section 341 of the Act, which reads as follows :
'341. Application of certain Acts to the proceedings of this Act.-- Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [Limitation Act. 1963 (XXXVI of 1963)], [Including Section 5 thereof] shall apply to the proceedings under this Act.'
As there is no express provision by or under the Act providing for exclusion of Order XXXIX of Code of Civil Procedure in respect of grant of temporary injunction during pendency of a suit, the said provision is applicable to a suit for division of holding and the Court in which suit under Section 176 of Code of Civil Procedure is pending could have given the relief to the appellant which is being sought in present proceedings. At one stage, the learned counsel for appellant tried to argue that as Section 229D of the Act provides for grant of temporary injunction only in respect of suit for declaration filed under Sections 229B and 229C, the provisions of Order XXXIX of Code of Civil Procedure for temporary injunction impliedly extends excluded. We are not inclined to accept the said contention. The provision under Section 229D is only supplemental to Order XXXIX which permits grant of temporary injunction. By incorporating Section 229D, a temporary Injunction can be granted in a suit for declaration though no permanent injunction is being sought which would not have been possible ha'a the specific provision been not there. Thus, the argument that Order XXXIX of Code of Civil Procedure stands excluded in view of Section 229D of the Act is unacceptable to us.
8. It is argued by learned counsel for the plaintiff/appellant that there was no Justification for the Court to vacate the interim Injunction which was continuing from 28.4.1998 as an appeal was preferred which was dismissed as withdrawn and order of Court below stood merged in it. The contention has no force. Order XXXIX, Rule 4 of Code of Civil Procedure comes into play in case conditions mentioned therein come into existence. The power of a trial court to vacate its earlier order passed under Order XXXIX, Rule 2 does.not come to an end merely because an appeal against it stands dismissed. It is in different circumstances that the power is to be exercised and if conditions mentioned therein arise, the Court can vacate a temporary injunction granted by it. even if it has been subject-matter of appeal provided it is satisfied that the conditions are such that Us continuance is not possible and It is giving rise to undue hardship to party. In the instant case, the shares of Smt. Urmila Devl and Smt. Kanak Lata are admittedly 1/2 each. Smt. Kanak Lata has transferred a specific portion (western portion) to respondent Nos. 1, 2 and 3. If it is assumed for the sake of argument that Smt. Kanak Lata could not have transferred any particular portion of land yet 1/2 share of Smt. Kanak Lata has certainly passed to the vendees. It makes no difference if the half share is specified by area. The parties can always get the land partitioned and under the circumstances of this case, when preliminary decree for division of holding has already been passed, the parties should get the land partitioned by metes and bounds.
9. Learned counsel for appellant has also argued that though plaintiff/appellant moved an application to restrain defendants from constructing over plot No. 425/1 but while refusing relief to appellant, the Court below exceeded its power in restraining appellants and directing her to maintain status quo. The learned counsel for appellant is right in this respect. The Court below while effecting the order of status quo, which was granted to appellant earlier, did exceed its power in restraining the appellant in directing that so far appellant is concerned, she has to maintain status quo. The plaintiff could have been asked to maintain status quo only when the restraint order was going against defendant also. Such a restraint order in this case amounts to giving undue advantage to defendants/respondents and cannot be sustained.
10. Before parting with the case, we would like to observe that construction of a boundary wall over a particular portion of land will not change the nature of land. It will not cease to be bhumidhari land unless the user is changed. Under Section 143 of the Act It is only where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry that the land can be declared being used for such purpose and it will cease to be bhumidhari but unless a land is put to such a use, no such declaration under Section 143 can be made under said provisions.
11. In view of above, the first appeal is partly allowed to the extent that the plaintiff could not atone be restrained by Court below under the facts and circumstances of the case to maintain status quo when no such order has been passed against the defendant against whom the allegation is that they are putting up constructions. The rest of the order of Court below is maintained.