;&JNRi ^ CIVIL MATTER SINGLE BENCH IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR fC.G.1 WRIT PETITION CC) N0. £r^c^^ QF 200^ PETITIQNER PLAINTIFF , ,..••',...• ^ ..-•'^" -..•• ^yy. ..f^" ,/-<y\b ^•' ^y y- RESPONDENTS DEFENDANTS 1. ^ .Sunderlal Kashyap, aged about 54 Years, Son of Shri Mahadev Prasad Kashyap, Caste Kachhi, Resident of Telipara Bilaspur, District Bilaspur (C.G.). VERSUS Shri Mahadev Prasad Kashyap, aged about 82 years Son of Shri Buddhu Prasad Kashyap; ,2. Shri Shyamlal .Kashyap, aged about 46 years Son of Shri Mahadev Prasad Kashyap; Shri Mishrilal Kashyap, aged about 38 years Son of Shri Mahadev Prasad Kashyap; All residents of Telipara Bilaspur Tahsil and District Bilaspur (C.G.). Shri Subhash Agrawal, aged about 50 years Son of Not Known, Director/Proprietor Gaytri Medical Agency Telipara Bilaspur (C.G.). 5. The Sub Registrar, Registration / Office,Bilaspur (C.G.). XI-HC-78 -^' S^'-qraRw, (jiTflti'l(i, fa?TRiy *<1*<MI SlitfT^ ^^,C<-JUO,^^V^ 200£ 3:n^?T<ra^'(i^i^^r) sn^T^iTf^iN; (Wran^rgiiiR; ??aTWHf?(T3n^T wife^r WTcTf ir'fei^rf^rc A STf^lTsn^T r 29.11.200e Shri Malaya Kumar Bhaduri, leamed counsel for the petitioner, l-1eard on admission. Q/ this Writ Petition filed u^ider Arttele-227 of the Constitutton of India, the petitioner, who was plain^iff before the trial Court, has challenged the validity, legality and propriety|of order dated 06.10.2006 passed in Misc. Civil Appeal No.28/2005 ^ the First Additional District Judge, Bilaspur, The aforesaid Misceltan^ous Appeal was Tiled against the order dated 02.12.2005 passed ,'n Civjl ^uit No.144-A/2005 by tlie Second Civil Judge Class-11, Bilaspur, whereb) the learned trial Judge rejected the applfcation filed by the ptaintiff unfter Order-39 Rute-1 & 2 of the Code of Civil prooedure. Brief facts are that the pfaihtiff ffled a suit for declaration, partition and permanent injunctton. The defendant No.1 is the father ofthe plaintiff and dsfendant Nos.2 & 3 are his ifeal brothers. The defendant No.4 is said to be proposed purehaser; The pta|jnt aflegations are that the suit properties were the joint family property belo(iging to plaintiff and defendants No.1 to 3 in which the plaintiff is having [1/4 share, The cause of action arose, when the plaintiff came to know th^t the defendant No. 1 is tiying to atienate some portion ofthe suit property]to defendant No.4, whfeti, according to plaintjffhe oould not do untess the|partition tates p!ace in the family. During the pendency of the suit, the pl^intiff filed an application for temporary injunction restraining the defendejnt No.1 to afienate the suit property in the aforesaid manner. The defen<jantt No.1, 2 & 3 raised the ptea that the entire suit properties are tt(e self acquired properties of the father-defendant No.1, therefore, jthere is no questtan of partition in hls life time. i.1:t P.T.O. .t.t^~-hi... 2_ XI-HC-78 •a.n^r^rR-fi'ti (RTWWsb'Hlf tT ~\ ^ *11*1WI sh*f|cb '33f .qwid'4, (STn.M'is, RKiwy 'y* »»* '^t_»^»***»«*»**** 200.& OT^ri 4;i* (i?fg^F) ?^irwflf?(T'3;(^T —2-' ^-- The trfal Court dismissed th^ is no prima facie oase in favour of were the self aoquired properties r^! who is the father of the plaintiff. Ad< applteation, the plaintiff filed an aj and the Appellate Court also took tt( For the sake of arguments, were joint and the status of the| injunctfon can be granted in fa\( alienation fcy another co-parcener taken place so far. In co-parcen^ having a right to mate alienation pendency of the suit, if the othef exceeds his rights, the rght and| always protected uncter the doctrir arises. There appears to be no infiri) below, The petition has no merit itself. In view of the above, M.(W.; injunction stands dismissed. <tii<iif<-i4)-i ^it(ci1'fffW^<Ri'wi< ^sri^iTsii^r aforesaid application holding that there ie plaintiff as the most ofthe properties icorded in the name ofdefendant No,1, Adainst the order of rejection of injunction >peal before the tower Appellate Court same view and dismissed e appeal. 'ven if we take thatnature of properties pfaintiff is that of a co-parcener, no 1'our of co-parcener against making ?n the ground that the partitjon has not 'ry property, a co-parcener is always his own share. Moreover, cfuring the co-paroener makes alienation whioh jnterest Qf remaining co-parceners is of ffs-penatense if such an exigency infiri|nity in the ordere passed by the Courts a|nd it is dismissed at the motfan stage )|P.No,4355/2006 for grant of temporary Sdf- Sunil Kumar Sinha Judge P.T.O. *