Bharat Singh vs Sunder and Others

Sanjay Misra, J.—Heard Sri P.N. Tripathi, learned Counsel for the Appellant.

This second appeal has been filed against the judgment and decree dated 4.9.2010 passed by the Additional District Judge, Court No. 7, Badaun in Civil Appeal No. 22 of 2009, whereby the suit of the Plaintiff-Appellant has been dismissed by the first appellate court and the judgment and decree dated 21.3.2009 passed by the trial court has been set aside.

Learned Counsel for the Plaintiff-Appellant has contended that the trial court clearly found that the land in dispute was part of the Plot No. 257 and Plaintiff being co-tenure holder was entitled to an injunction with respect to 0.051 hectare over the land in question. He submits that the first appellate court has committed an illegality in allowing the appeal of the Defendant-Respondent and refusing the injunction claimed by the Plaintiff for the reason that the land in dispute has not been identified to exist over the Plot No. 257. According to him the first appellate court has committed an error in not taking into account the report and map of the Commissioner.

Having considered the submission of learned Counsel for the Appellant and perused the record, it appears that the Plaintiff-Appellant is co-tenure holder alongwith Defendant-Respondent. Admittedly, no partition has taken place between the parties and Plaintiff-Appellant claims to be owner of an area 0.051 hectare in the plot in question. The first appellate court while considering the appeal of the Defendant-Respondent has recorded that the land in question could not be identified within the Plot No. 257 and therefore, the Plaintiff could not claim an injunction against his co-tenure holder. The aforesaid finding of the first appellate court appears to be on the basis of evidence available on record and more particularly when the trial court had decreed the suit of the Plaintiff-Appellant not on the basis that the Plaintiff had proved his case but only on the weakness of the Defendant''s case.

The other reason for affirming the judgment and decree of the first appellate court is that admittedly the Plaintiff and the Defendant are co-tenure holder and no partition had taken place amongst them. Therefore, when the Plaintiff-Appellant is found to be a co-tenure holder to the extent of 0.051 hectare, he could not claim an injunction against a co-tenure holder unless the shares were duly partitioned and defined over the plot in question.

For the aforesaid reason, the finding recorded by the first appellate court does not suffer from any error nor any substantial question of law arises for decision in this second appeal. There is no merit in this second appeal. The appeal is accordingly dismissed.

No order is passed as to costs.