# Smt. Shahnaz Begum v. District Judge, Sultanpur & Ors

- **Citation:** (2023) 3 ILRA 1273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-07
- **Case number:** Matters Under Article 227 No. 546 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shahnaz-begum-v-district-judge-sultanpur-ors-49929
- **Pages:** 8

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order XXXIX Rule 4 - Objections
allowed- Temporary injunction set aside-
temporary injunction against co-sharers
of the property without partition- Full
bench decision of Chedi Lal- right of cosharer distinct from relief to be granted-
his share invade by other co-sharers-
exclusively appropriating or cultivating
land or raising constructions- injunction
suit maintainable- only when exclusive
appropriation by other co-sharers- or
when
plaintiff
cannot
be
adequately
compensated at the time of partition-
lastly, greater injury to the plaintiff by
refusal of relief than by granting it-
question answered negatively against the
plaintiff-
no
partition-
no
averment
regarding trampling of exclusive share of
the plaintiff.

HELD: Upon consideration of Full Bench
Decision, it is apparent that the Full Bench has
answered the question that right of cosharers in
respect of joint land is required to be kept
separate and distinct from the question as to
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
what relief should be granted to a co-sharer
particularly when his share has been invaded by
other
co-sharers
either
by
exclusively
appropriating and cultivating land or by raising
constructions thereon. The Full Bench has
clearly held that it would only be in case where
the rights of co-sharer have been exclusively
appropriated by other co-sharers that a suit for
injunction would be maintainable against cosharers. The aspect has further been elaborated
with the aspect that in case evidence establishes
that plaintiff cannot be adequately compensated
at the time of partition and that greater injury
will result to him by refusal of relief than by
granting it, that injunction could be granted.

As such, the aspect which can be culled out
from the Full Bench decision is to the extent
that relief of injunction to plaintiff against cosharers would be maintainable only in the event
the share of plaintiff has been entirely and
exclusively encroached upon by the other cosharers and secondly that the plaintiff cannot be
adequately compensated at the time of partition
and thirdly that greater injury will result to him
by refusal of the relief than by granting him.

In view of aforesaid discussion, this Court
comes to the considered conclusion that there is
no error in the orders impugned pertaining to
the fact that injunction could not have been
granted in favour of plaintiff against other cosharer without partition being effected between
them and without any averment that the
exclusive share of the plaintiff was being
trampled upon by the other co-sharers.

B. Civil Law Civil Procedure Code, 1908 -
Order XXXIX Rule 4 - injunction obtained
by concealing the true facts- untrue case-
that plaintiff is the sole owner of the
property-
trial
court's
order
upheld-
Petition dismissed.

HELD: Upon applicability of aforesaid judgment
in the present facts and circumstances of the
case, it is evident that the plaintiff had set up an
untrue case by giving an impression that she
was the sole owner of the entire plot no.1297
minjumala. It is a finding of fact recorded
concurrently by both the courts below and has
also been admitted by learned counsel for
petitioner that in fact plaintiff has only a share
in the property in dispute and is not owner in
possession over the entire plot although there is
no such averment in the plaint.

In view of aforesaid, this Court does not find
any error with regard to finding recorded that
there was material concealment of fact in the
plaint

Petition dismissed. (E-14)

List of Cases cited:

## Text

3 All. Smt. Shahnaz Begum Vs. District Judge, Sultanpur & Ors.
1273
318 के अिीन अपीले िीफ जुवडवशयल मवजस्ट्रेटोिं
के द्वारा ग्रहण की जानी तथा सुनी जानी िावहए।

2- शासन ने यह भी वनणगय वलया है वक
अन्य प्रकीणग थथानीय या ववशेष,अविवनयमोिं के
अन्तगगत अपील तथा पुनीक्षण प्राथगना पत्रोिं की
सुनवाई िीफ जुवडवशयल मवजस्ट्रेटो द्वारा की जाएगी
वसवाए उस दशा में जब वक उनके अविकार स्वयिं
ववशेष अविवनयमोिं द्वारा सीवमत कर वदये गए हो।

भवदीय

ह० िन्द्रभूषणिर वद्ववेदी

उपसविव"

4. Referring to the above quoted
notification,
learned
Chief
Judicial
Magistrate, Ghazipur has rejected the
objection.

5. Learned counsel for the petitioner
has placed reliance on a judgment of this
Court dated 08.05.2020 passed in the
Matters Under Article 227 No.9748 of
2019 (Sajal Kumar and 2 others Vs. Chief
Judicial Magistrate, Ballia and 6 others), in
which, referring to Section 160 of the
Municipality Act, Court has held that the
District Magistrate of the District alone has
power to hear the appeal and the Chief
Judicial Magistrate does not have any such
power. A perusal of the said judgment
shows that the same was passed as the
notification dated 07.11.1974 was not
placed before the Court. Thus, the said
judgment passed without taking into
consideration
the
notification
dated
07.11.1974 does not lay down the correct
law.

6. In view thereof, the order passed by
the Chief Judicial Magistrate, Ghazipur in
Appeal No. 5 of 2021, is within its
jurisdiction.

7. No other submission is made by the
petitioner.

8. Thus, no force is found in the
present petition and the same is dismissed.
----------
(2023) 3 ILRA 1273
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matters Under Article 227 No. 546 of 2023

Smt. Shahnaz Begum ...Petitioner
Versus
District Judge, Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioner:
Mohammad Aslam Khan

Counsel for the Respondents:
Kaleem Ur Rehman, Shaista Parveen

A. Civil Law - Code of Civil Procedure,
1908 - Order XXXIX Rule 4 - Objections
allowed- Temporary injunction set aside-
temporary injunction against co-sharers
of the property without partition- Full
bench decision of Chedi Lal- right of cosharer distinct from relief to be granted-
his share invade by other co-sharers-
exclusively appropriating or cultivating
land or raising constructions- injunction
suit maintainable- only when exclusive
appropriation by other co-sharers- or
when
plaintiff
cannot
be
adequately
compensated at the time of partition-
lastly, greater injury to the plaintiff by
refusal of relief than by granting it-
question answered negatively against the
plaintiff-
no
partition-
no
averment
regarding trampling of exclusive share of
the plaintiff.

HELD: Upon consideration of Full Bench
Decision, it is apparent that the Full Bench has
answered the question that right of cosharers in
respect of joint land is required to be kept
separate and distinct from the question as to
1274 INDIAN LAW REPORTS ALLAHABAD SERIES
what relief should be granted to a co-sharer
particularly when his share has been invaded by
other
co-sharers
either
by
exclusively
appropriating and cultivating land or by raising
constructions thereon. The Full Bench has
clearly held that it would only be in case where
the rights of co-sharer have been exclusively
appropriated by other co-sharers that a suit for
injunction would be maintainable against cosharers. The aspect has further been elaborated
with the aspect that in case evidence establishes
that plaintiff cannot be adequately compensated
at the time of partition and that greater injury
will result to him by refusal of relief than by
granting it, that injunction could be granted.

As such, the aspect which can be culled out
from the Full Bench decision is to the extent
that relief of injunction to plaintiff against cosharers would be maintainable only in the event
the share of plaintiff has been entirely and
exclusively encroached upon by the other cosharers and secondly that the plaintiff cannot be
adequately compensated at the time of partition
and thirdly that greater injury will result to him
by refusal of the relief than by granting him.

In view of aforesaid discussion, this Court
comes to the considered conclusion that there is
no error in the orders impugned pertaining to
the fact that injunction could not have been
granted in favour of plaintiff against other cosharer without partition being effected between
them and without any averment that the
exclusive share of the plaintiff was being
trampled upon by the other co-sharers.

B. Civil Law Civil Procedure Code, 1908 -
Order XXXIX Rule 4 - injunction obtained
by concealing the true facts- untrue case-
that plaintiff is the sole owner of the
property-
trial
court's
order
upheld-
Petition dismissed.

HELD: Upon applicability of aforesaid judgment
in the present facts and circumstances of the
case, it is evident that the plaintiff had set up an
untrue case by giving an impression that she
was the sole owner of the entire plot no.1297
minjumala. It is a finding of fact recorded
concurrently by both the courts below and has
also been admitted by learned counsel for
petitioner that in fact plaintiff has only a share
in the property in dispute and is not owner in
possession over the entire plot although there is
no such averment in the plaint.

In view of aforesaid, this Court does not find
any error with regard to finding recorded that
there was material concealment of fact in the
plaint

Petition dismissed. (E-14)

List of Cases cited:

1. Chhedi Lal & anr. Vs Chhotey Lal AIR 1951
Allahabad 199

2. Devendra Kumar Trikha Vs The District
Judge, Lucknow & ors. 1983(1) Lucknow Civil
Decision page1

3. T. Ramalingeswara Rao (Dead) through Legal
Representatives & anr. Vs N. Madhava Rao &
ors. (2019)4 Supreme Court Cases 608

4. Mohd. Baqar Vs Naim-un-Nisha Bibi AIR 1956
SC 548

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Mohd. Arif Khan,
learned Senior Counsel assisted by Mr.
Mohd. Aslam Khan, learned counsel for
petitioner.

2. In view of order being proposed to
be passed, notices to opposite parties no.1
and 2 and opposite parties no.4 to 10 stand
dispensed with.

3. Although there is reporting of
caveat on behalf of opposite party no.3 but
despite the matter being taken up in the
revised list, no one has put in appearance
on behalf of caveator.

4. Petition under Article 227 of the
Constitution of India has been filed against
order dated 17.08.2022 passed by the trial
court whereby objections under order 39
3 All. Smt. Shahnaz Begum Vs. District Judge, Sultanpur & Ors.
1275
Rule 4 of the Code of Civil Procedure have
been allowed vacating the temporary
injunction earlier granted. Appellate order
dated 18.01.2023 has also been challenged.

5. Learned counsel for petitioner
submits that the petitioner had purchased
an area measuring 0.01109 hectare of Gata
No.1297 having a total area of 0.1110
hectare by means of registered instrument
of transfer dated 28.11.2008. It is submitted
that when the defendants 1 and 2 started
interfering in the possession of petitioner
and raising construction on the plot in
question, the petitioner was compelled to
file the Regular Suit No.81 of 2022 for
permanent injunction in which initially an
ex parte interim injunction was granted but
thereafter the same was vacated by means
of the impugned order upon application
being filed by defendants.

6. It is submitted that in the impugned
order dated 17.08.2022, the trial court has
clearly erred in recording a finding that
there was material concealment of fact in
the plaint which resulted in issuance of ex
parte temporary injunction. It is submitted
that a copy of the sale-deed dated
28.11.2008 had been filed alongwith copy
of plaint clearly indicating the area
purchased by the plaintiff in the plot in
question and it was only after examining
the same that ex-parte temporary injunction
was granted. As such, it is submitted that
there was no concealment of fact by the
plaintiff and finding recorded to the
contrary by means of impugned order is
clearly erroneous.

7. Learned counsel has also drawn
attention to the other ground for vacation of
interim injunction that the trial court has
erred in holding that temporary injunction
cannot be granted against a co-sharer when
proceedings for partition of the property in
question are pending adjudication. It is
submitted that it is settled law that suit for
permanent
injunction
would
be
maintainable against co-sharers also in case
the possession of plaintiff is being
interfered with to an extent that it would
hamper peaceful enjoyment of the property
which has been purchased by the said cosharer.

8. Reliance has been placed on
judgment rendered by full bench decision
of this Court in the case of Chhedi Lal and
another versus Chhotey Lal reported in
AIR 1951 Allahabad 199 as well as in the
case of Devendra Kumar Trikha versus
The District Judge, Lucknow and others
reported
in
1983(1)Lucknow
Civil
Decision page1.

9. It is thus submitted that the trial
court clearly fell in error in vacating the
temporary injunction granted earlier on the
aforesaid two counts.

10. Learned counsel has also adverted
to the appellate Court judgment to submit
that the findings recorded by the trial court
in the impugned order dated 17.08.2022
has been merely copied without any
independent application of mind to the
grounds raised in the memorandum of
appeal particularly with regard to the fact
that there was no concealment of fact in the
plaint and suit for injunction would be
maintainable against the co-sharer in the
light of full bench decision of this Court as
followed subsequently.

11.

Upon
consideration
of
submissions advanced by learned counsel
for petitioner, it appears from the material
on record that suit for permanent injunction
has been filed by the petitioner indicating
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
that she is the owner in possession of Gata
No.1297 Minjumla having an area of
0.1110 hectare situate in the village in
question. The prayer clause also indicates
that injunction has been sought over Gata
No.1297 Minjumla having an area of
0.1110 hectare. Although the plaint does
not indicate any reference to the registered
sale-deed dated 28.11.2008 but as per
submission
of
learned
counsel
for
petitioner, the aforesaid sale-deed was on
record having been filed along with plaint
and it was after consideration of the saledeed indicating petitioner's share in the
property to be restricted to 0.2019 hectare
that trial court granted ex parte interim
injunction.

12. A perusal of the trial court order
indicates
primarily
two
grounds
for
vacation of the ex parte interim injunction
with first being that the property in dispute
being Gata No.1297 Minjumla is a part and
parcel of one plot which has not been
partitioned by any competent court or
authority and as such prior to grant of any
permanent
injunction,
it
would
be
necessary that plaintiff's share over the
property disputed should be identified. It
has also been indicated that plaintiff has not
made any averment in the plaint with
regard to the sale-deed or the portion of
disputed
property
which
has
been
purchased by her and over which she has
possession.

13. Secondly, the trial court has
reached a prima facie conclusion that the
plaint was filed concealing material facts
particularly the fact that plaintiff had only a
share in the property disputed although
relief is being claimed over the entire Gata
No.1297 Minjumala. It is indicated in the
order that neither any area of the property
purchased by the plaintiff has been
indicated in the plaint nor has any boundary
been indicated and on the contrary, plaint
has been filed seeking a relief of permanent
injunction over the entire plot of 1297
Minjumla. As such, the trial court has
reached a conclusion that averments in
plaint were only to mislead the court
concerned.

14. A perusal of impugned appellate
court's order also indicates the same
reasoning having been followed.

15. With regard to submissions
advanced by learned counsel for petitioner,
the following two questions which are
required to be adjudicated in the present
writ petition would be as follows:

A. Whether temporary injunction
could have been granted to the petitionerplaintiff against co-sharers of the property
without any partition thereupon ?

B.
Whether
there
was
any
concealment of fact in the plaint leading to
grant of ex parte interim injunction?

16. Question No.A:- With regard to
the first proposition, learned counsel for
petitioner has placed reliance on Full
Bench judgment of this Court in the case of
Chhedi Lal (supra). The facts of the case
was that one Tika Ram was owner of the
plot in dispute and was survived by four
sons one of whom died issue less. The
portion of their shares in property in
question
exchanged
hands
and
their
successors started raising construction over
the disputed plot whereafter the co-sharers
filed suit for possession of the plot by
demolition of construction raised by
defendants on the ground that they were
sole owners of entire property owned by
late Tika Ram. The question with regard to
injunction being granted against co-sharers
3 All. Smt. Shahnaz Begum Vs. District Judge, Sultanpur & Ors.
1277
was the issue on hand before the Full
Bench and after noticing a number of
judgments, the Full Bench held as follows:-

"25. As a result of the foregoing
discussion, it appears to us that the
question of the right of co-sharers in
respect of joint land should be kept
separate and distinct from the question as
to what relief should be granted to a cosharer, whose right in respect of joint land
has been invaded by the other co-sharers
either by exclusively appropriating and
cultivating land or by raising constructions
thereon. The conflict in some of the
decisions has apparently risen from the
confusion of the two distinct matters. While
therefore a co-sharer is entitled to object to
another
co-sharer
exclusively
appropriating land to himself to the
detriment of other co-sharers, the question
as to what relief should be granted to the
plaintiff in the event of the invasion of his
rights will depend upon the circumstances
of each case. The right to the relief for
demolition and injunction will be granted
or withheld by the court according as the
circumstances established in the case
justify. The court may feel persuaded to
grant both the reliefs if the evidence
establishes that the plaintiff cannot be
adequately compensated at the time of the
partition and that greater injury will result
to him by the refusal of the relief than by
granting it. On the contrary if material and
substantial injury will be caused to the
defendant by the granting of the relief, the
court will no doubt be exercising proper
discretion in withholding such relief. As
has been pointed out in some of the cases,
each case will be decided upon its own
peculiar facts and it will be left to the court
to exercise its discretion upon proof of
circumstances showing which side the
balance of convenience lies. That the court
in the exercise of its discretion will be
guided by considerations of justice, equity
and good conscience cannot be overlooked
and it is not possible for the court to lay
down an inflexible rule as to the
circumstances in which the relief for
demolition and injunction should be
granted or refused."

17. The aforesaid Full Bench
Judgment has thereafter been followed with
approval by Coordinate Bench of this Court
in the case of Devendra Kumar Trikha
(supra).

18. Upon consideration of Full Bench
Decision, it is apparent that the Full Bench
has answered the question that right of cosharers in respect of joint land is required
to be kept separate and distinct from the
question as to what relief should be granted
to a co-sharer particularly when his share
has been invaded by other co-sharers either
by
exclusively
appropriating
and
cultivating land or by raising constructions
thereon. The Full Bench has clearly held
that it would only be in case where the
rights of co-sharer have been exclusively
appropriated by other co-sharers that a suit
for injunction would be maintainable
against co-sharers. The aspect has further
been elaborated with the aspect that in case
evidence establishes that plaintiff cannot be
adequately compensated at the time of
partition and that greater injury will result
to him by refusal of relief than by granting
it, that injunction could be granted.

19. As such, the aspect which can be
culled out from the Full Bench decision is
to the extent that relief of injunction to
plaintiff against co-sharers would be
maintainable only in the event the share of
plaintiff has been entirely and exclusively
encroached upon by the other co-sharers
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
and secondly that the plaintiff cannot be
adequately compensated at the time of
partition and thirdly that greater injury will
result to him by refusal of the relief than by
granting him.

20. Upon applicability of aforesaid
Full Bench decision in the present facts and
circumstances of the case, it is evident not
only from the sale-deed but also from
submissions advanced by learned counsel
for petitioner-plaintiff that the plaintiff had
purchased only a portion of the property in
question ad measuring 0.01293 hectare out
of the total area of 0.1110 hectare in Gata
No.1297 Minjumla. A reading of the plaint
does not indicate any averment that any
encroachment was being made by the
defendants over the entire and exclusive
property purchased by the plaintiff. It is
also evident that a suit for partition between
the parties is pending consideration of the
competent court in terms of Section 116 of
the U.P. Revenue Code, 2006. There has
not been any finding recorded by the courts
below or even in the present petition that
plaintiff cannot be adequately compensated
at the time of partition with regard to
construction being raised over the property
in question. It is also not the case of
plaintiff that any construction is being
raised over the property purchased by him
by means of the instrument of transfer
dated 28.11.2008.

21. In the case of Devendra Kumar
Trikha (supra), the facts of the case were
that a suit for permanent injunction had
been filed against the co-owner with the
prayer that the plaintiff was exclusively
realizing rent arising from the property in
question although the plaintiff being cosharer had a right to a portion of rents being
so realized. In paragraph 3 of the aforesaid
judgment, Coordinate Bench has clearly
held that since the share in rent of the cosharers
was
being
exclusively
and
completely taken over by the defendant, the
suit as such for permanent injunction would
be maintainable.

22. Here it would be noticeable that in
both the judgments, great emphasis has
been laid on the fact that relief of
injunction against the co-sharer could be
granted only in case the share of another
co-sharer has been exclusively trampled
upon. The facts and circumstances of the
present case are otherwise.

23. In a recent judgment of Hon'ble
the Supreme Court the aforesaid aspect has
already been taken care of and adjudicated
in the case of T. Ramalingeswara Rao
(Dead) through Legal Representatives and
Another versus N. Madhava Rao and
others reported in (2019)4 Supreme Court
Cases 608 wherein the aspect of whether
injunction can be granted against co-sharers
has been dealt with in the following
manner:-

"16. In our view, even assuming
that the plaintiffs claimed to be in possession
of the suit property (which the two courts
below did not find in their favour) for
claiming injunction, yet they were not entitled
to claim injunction against the other cosharers over the suit property. It is a settled
principle of law that the possession of one cosharer is possession of all co-sharers, it
cannot be adverse to them, unless there is a
denial of their right to their knowledge by the
person in possession, and exclusion and
ouster following thereon for the statutory
period. (See Mohd. Baqar v. Naim-un-Nisa
Bibi [Mohd. Baqar v. Naim-un-Nisa Bibi,
AIR 1956 SC 548].)

17. So far as the claim of the
plaintiffs as being in exclusive possession
3 All. Smt. Shahnaz Begum Vs. District Judge, Sultanpur & Ors.
1279
to the exclusion of others was concerned,
the same was held not proved by the two
courts below."

24. The aforesaid judgment rendered
by Hon'ble the Supreme Court is based on
another previous judgment of Hon'ble the
Supreme Court in the case of Mohd. Baqar
v. Naim-un-Nisha Bibi reported in AIR
1956 SC 548 and clearly states the settled
proposition that possession of one co-sharer
is possession of all co-sharers and cannot
be adverse to them unless there is a denial
of their right to their knowledge by the
person in possession, and exclusion and
ouster following thereon.

25. In the considered opinion of this
Court, the aforesaid judgment is clearly
applicable
in
the
present
facts
and
circumstances where a co-sharer is seeking
grant of temporary injunction against a cosharer with proceedings for partition
pending between them.

26. In view of aforesaid discussion,
this Court comes to the considered
conclusion that there is no error in the
orders impugned pertaining to the fact that
injunction could not have been granted in
favour of plaintiff against other co-sharer
without partition being effected between
them and without any averment that the
exclusive share of the plaintiff was being
trampled upon by the other co-sharers.

27. Question No.A is answered
accordingly negatively against petitioner.

28. Question No.B: So far as question
pertaining to concealment of fact as
recorded in the judgments under challenge
is concerned, it is evident from the saledeed brought on record as Annexure No.11
that petitioner-plaintiff had purchased an
area measuring 0.01293 hectare by means
of instrument of transfer dated 28.11.2008.
It is also the submission of learned counsel
for petitioner that aforesaid is the only area
purchased by petitioner-plaintiff by means
of the aforesaid sale-deed although the
entire area of property in dispute being
Gata no.1297 minjumala is 0.1110 hectare.

29. It is also evident from a reading of
plaint that there is no averment therein as to
the portion of disputed property which has
been purchased by plaintiff and the only
indication comes in paragraph 2 of the
plaint whereunder it has been stated that the
area of property in question being Gata
No.1297 minjumala is 0.1110 hector. It is
also
evident
that
in
prayer
clause,
permanent injunction has been sought over
the
entire
Gata
No.1297
minjumala
indicating an area of 0.1110 hectare. There
is no averment in the plaint with regard to
defendants being co-sharers in the property
in question although it is admitted that the
defendants are in fact co-sharers of plaintiff
in the disputed property.

30. Upon consideration of aforesaid
factors, it is evident that the plaintiff has
failed to indicate his right over the property
in question as also his share thereupon with
such omission extending to the fact that
defendants were co-sharers of the plaintiff
in the disputed property.

31. The aspect of concealment of fact
has been adverted to in the Full Bench
decision in the case of Chhedi Lal (supra)
in the following term:

"26. It now remains to deal with
each of the appeals separately upon its own
facts. So far as Second Civil Appeal No.282
of 1943 is concerned, the plaintiffs set up
an untrue case that they were the sole
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
owners and both the courts below have
found that the defendants had a subsisting
interest in the land in suit and had a right
to build. It has also found against the
plaintiffs that they made no oral protest, as
alleged by them. Both the courts below
have exercised their discretion upon the
circumstances of the case in favour of the
defendants and have refused the reliefs
asked for by the plaintiffs. In this appeal
the question resolves itself merely into the
fact whether the discretion was exercised
improperly. We are of opinion that the
plaintiffs
have
failed
to
establish
circumstances which would justify this
Court in second appeal to interfere with the
exercise of the discretion concurrently by
the two courts below. We accordingly
dismiss this appeal with costs."

32. Upon applicability of aforesaid
judgment
in
the
present
facts
and
circumstances of the case, it is evident that
the plaintiff had set up an untrue case by
giving an impression that she was the sole
owner
of
the
entire
plot
no.1297
minjumala. It is a finding of fact recorded
concurrently by both the courts below and
has also been admitted by learned counsel
for petitioner that in fact plaintiff has only a
share in the property in dispute and is not
owner in possession over the entire plot
although there is no such averment in the
plaint.

33. In view of aforesaid, this Court
does not find any error with regard to
finding recorded that there was material
concealment of fact in the plaint.

34. Question No.B is answered
accordingly against the petitioner.

35. In view of aforesaid that both the
questions formulated by this Court have
been answered against petitioner-plaintiff,
the petition being devoid of merit is
dismissed at the admission stage itself.

36. It is however made clear that the
aforesaid answering of two questions is
limited to the application for temporary
injunction only and would not have any
bearing on the final adjudication of the suit
which would be on its own merits and
would not prejudice the suit proceedings
between co-sharers of the property in
question, which would be subject to
evidence.
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(2023) 3 ILRA 1280
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 532 of 1997

Lalji & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.C. Nigam, Sri Dhirendra Kumar Srivastava,
Sri Janmed Kumar, Sri Kameshwar Singh, Sri Om
Prakash Chaurasia, Sri Satya Prakash Shukla, Sri
Surendra Singh

Counsel for the Respondent:
G.A.

A. Criminal Law - Appeal- Indian Penal
Code-1860 - Sections 302 & 34 -Against
conviction under IPC read with Section 34
IPC- Accused killed the deceased by
beating him with lathies- Deceased was
raising wall on land- accused claimed to
be theirs- Appellants' plea- conviction
based
on
testimony
of
interested
witnesses- no specific roles assigned.