RAJKUMAR TIWARIversusMUNNALAL TIWARI AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
            MATTERS UNDER ARTICLE 227 No. - 14521 of 2024

Rajkumar Tiwari
                                                             .....Petitioner(s)
                                   Versus

Munnalal Tiwari And Another
                                                           .....Respondent(s)

Counsel for Petitioner(s)           :   Devaang Savla, Udayan Nandan
Counsel for Respondent(s)           :   Sharad Chand Rai

Court No. - 9
                HON'BLE ROHIT RANJAN AGARWAL, J.

1. This is a plaintiff's petition. Petitioner and the respondent no. 1 are the
real brothers. Their father had purchased a property being House No. 17
(New No. 18), situated at Mohalla Chaubyanapura, Lalitpur. After the
death of the father of the petitioner, late Raghuver Dayal, the house
devolved on the two brothers, that is, petitioner and respondent no. 1.
Respondent no. 1- Munnalal Tiwari sold the property to the respondent
no. 2- Bharat Kumar Tiwari. An Original Suit No. 76 of 2020 was filed
by respondent no. 1- Munnalal Tiwari against his brother, petitioner-
Rajkumar Tiwari seeking relief of permanent injunction from not
interfering in the property in dispute. From the perusal of the plaint of the
Original Suit No. 76 of 2020, it transpires that no partition had taken
place between the brothers by metes and bounds and the injunction was
sought against the petitioner. During the pendency of the said suit,
Munnalal Tiwari transferred his share to respondent no. 2- Bharat Kumar
Tiwari through registered sale deed.

2. It appears that Bharat Kumar Tiwari had started certain constructions
over the purchased property, as such, a suit for permanent injunction
being Original Suit No. 4 of 2021 restraining the defendant- Bharat
Kumar Tiwari was filed by the petitioner, in which, an application for
grant of temporary injunction was moved. The trial court rejected the
temporary injunction application on the ground that suit between the two
brothers is still pending being Original Suit No. 76 of 2020 and no prima
facie case was made out for the grant of temporary injunction.
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3. Aggrieved by the order of the trial court, a Misc. Civil Appeal No. 1 of
2021 was filed by the petitioner, in which, at the admission stage, an
interim order was granted, however, the appeal was dismissed on
19.10.2024. Hence, the present writ petition.

4. During the pendency of the injunction application, the petitioner has
also filed a Suit No. 126 of 2023 seeking relief of cancellation of sale
deed executed by Munnalal Tiwari in favour of Bharat Kumar Tiwari on
the ground that no partition had taken place between the brothers and the
sale deed could not have been executed.

5. Learned counsel for the petitioner submits that the appellate court was
not correct to reject the appeal on the ground that there was no disclosure
by the petitioner as to the pendency of the injunction suit filed by the
respondent no. 1 being Original Suit No. 76 of 2020. He further
contended that as the partition had not taken place between the brothers,
the sale of the property could not have taken place and the court below
should have granted order of status quo restraining the respondent no. 2
from making any construction over the property in question.

6. Shri Sharad Chand Rai, learned counsel appearing for both the
respondent nos. 1 and 2 submits that after the death of Raghuver Dayal,
the respondent no. 1 started living in his share and as the petitioner was
interfering in his peaceful possession, the injunction suit was filed against
the petitioner being Original Suit No. 76 of 2020. He further submits that
no construction is being raised by the respondent no. 2.

7. I have heard the respective counsel for the parties and perused the
material on record.

8. From the perusal of the material on record and specially the plaint of
Original Suit No. 76 of 2020 filed by the respondent no. 1, it is clear that
no partition had taken place between the brothers till date. The sale deed
could not have been executed by Munnalal Tiwari in respect of his share.
The respondent no. 2 cannot proceed to raise any construction over the
undivided share. Both the courts below have failed to consider the prima
facie case that Munnalal Tiwari had sold the property during pendency of
the injunction suit to Bharat Kumar Tiwari and the partition has not taken
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                                    place by metes and bounds.

                                    9. In view of the said fact, the orders impugned dated 19.10.2024 and
                                    24.02.2021 are unsustainable in the eyes of law and the same are hereby
                                    set aside. The matter is remitted back to the trial court to decide the
                                    temporary injunction application afresh without being influenced by the
                                    findings given above within a period of two months from the date of
                                    production of certified copy of this order, after hearing all the affected
                                    parties.

                                    10. Till the decision of the temporary injunction application, parties to
                                    maintain status quo over the property in dispute.

                                    11. The writ petition stands partly allowed.



                                                                                   (Rohit Ranjan Agarwal,J.)
                                    September 24, 2026
                                    A. V. Singh




Digitally signed by :-
AJAY VIKRAM SINGH
High Court of Judicature at Allahabad