Neutral Citation No. - 2025:AHC:13669 Court No. - 36 Case :- FIRST APPEAL FROM ORDER No. - 2214 of 2024 Appellant :- Raju And 4 Others Respondent :- Smt Anchal Patel Adult Counsel for Appellant :- Arvind Srivastava Counsel for Respondent :- Ashish Kumar Singh,Birendra Kumar,Ramji Singh Patel Hon'ble Kshitij Shailendra,J. 1. Heard Sri Arvind Srivastava, learned counsel for the plaintiff- appellants and Sri Ashish Kumar Singh, learned counsel for the defendant-respondent 2. The appellants are aggrieved by refusal to grant injunction pending their suit. 3. Learned counsel for the appellants submits that, admittedly, the property was co-owned by two persons, namely, Mewalal and Ghanshyam, who had purchased the same by registered sale deed dated 03.12.1969. The property being a dwelling house comprised in 528 sq. ft. and having four storeyes, the respondent purchased some portion of the property by registered sale deed dated 13.06.2018 and after a period of six years, she started demolishing the building and, hence, suit was filed. It is alleged that Section 44 of the Transfer of Property Act provides that when a co-owner transfers his share in a dwelling house, the transferee acquires such share but since the property is a dwelling house belonging to an undivided family and purchaser is not a member of the family, nothing contained in the provision shall be deemed to entitle him to joint possession or other common or part enjoyment of the house. It is, therefore, contended that unless the dwelling house was partitioned in accordance with law, the purchaser was not entitled to demolish a potion of the building and raise constructions thereon. As regards partition, it is submitted that the trial court has erred in placing reliance upon document of Varanasi Jal Sansthan appended at page 101 or the affidavit Annexure No.7 said to have been filed before the Jal Sansthan which documents cannot be said to be lawful so as to effect partition. In support of his submissions, reliance has been placed upon following authorities:- (i) Dorab Cawasji Warden Vs. Coomi Sorab Warden and others: (1990) 2 SCC 117; (ii) Savitri Devi Vs. Civil Judge (Sd) and others: 2003(3) All WC 1718; (iii) Shakir Khan and others Vs. Chameli Dass and others: in Matter Under Article 227 No.6569 of 2017, decided on 07.02.2028, 2018 All. C.J. 818. 4. Per contra, Sri Ashish Kumar Singh, learned counsel for the respondent, submits that the property purchased by the sale deed of 2018 has already been demolished and substantial constructions upto second floor have been completed and, at the moment, constructions of third floor are going on. As regards the partition, it is urged that the house bearing No.CK48/21 has been re-numbered in 2001 as CK48/21A and the trial court has relied upon various other documents also to arrive at a conclusion that the property being separately identifiable, no injunction can be granted. In support of his submissions, reliance has been placed upon following authorities:- (i) Padhiyar Prahladji Chenaji (deceased) through L.Rs Vs. Maniben Jagmalbhai (deceased) through L.Rs and others in Civil Appeal No.1382 of 2022, decided on 03.03.2022; (ii) Mandali Ranganna Vs. T. Ramachandra: AIR 2008 SC 2291. 5. Having heard learned counsel for the parties, I find that the suit contained mainly three reliefs: first, in the nature of mandatory injunction directing the defendant-respondent to accept money from the plaintiff-appellants and execute a sale deed of her portion in favour of the plaintiffs, secondly, a decree for injunction restraining the defendant from causing damage to the building or raising illegal constructions thereon or taking possession over the same, the third relief is regarding non-interference in user of the property by the plaintiffs. The affidavit accompanying the injunction application demonstrates that, in fact, the appellants were aggrieved by demolition/ construction activity being carried out in northern portion of the building and they were afraid of the situation that, in case, the demolition and construction continue to take place, the other portion of the building in their possession would also be demolished. Fear of dispossession was also alleged. 6. As far as the documents of partition are concerned, at this stage, no final opinion can be formed as the said aspect has to be determined by the trial court during the course of trial after oral and documentary evidence is led. Injunction matters are decided on the basis of affidavits and photostat copies of documents. Mini trial of the suit is not permissible at the stage of consideration of an injunction application. 7. In view of the above, though Section 44 of the Transfer of Property Act may have significance as far as the alleged right of pre-emption being pressed by Sri Arvind Srivastava is concerned and it appears from the first relief that it is based upon such contention, in so far as rejection of injunction application in toto is concerned, this Court is of the view that the trial court should have protected the interest of both parties in one way or the other considering the entire material placed before it and nature of injunction sought. 8. Certain photographs have also been placed before this Court which depict that construction activities are going on in the upper floors and in so far as ground floor is concerned, there are two shops, one in possession of the appellants and other in possession of the respondent. Even the sale deed of 2018 contained description of the property as residential/ commercial. The document of Jal Sansthan of 2001 also shows that there is a sweet shop without having any water connection and therefore water connection was supplied by the concerned institution. Therefore, at this stage, at least this much reflects that though in past the property might have been residential at the time of its purchase in 1969, however, over a number of decades, the user of the property has changed, may be to some extent, as is apparent from the shops of both sides being existent on the ground floor. Whether the nature of the building as such in toto can be said to be a dwelling house so as to attract applicability of Section 44 of the Transfer of Property Act is also an issue which shall be gone into by the trial court during the course of trial. 9. As far as the judgment in Dorab Cawasji Warden (supra) is concerned, the Supreme Court dealt with the provisions of Section 44 of the Transfer of Property Act and in the light of facts that a sale deed was hurriedly executed keeping the entire transaction secret from the plaintiff and in clandestine and hurried manner, the purchasers were trying to defeat the plaintiff's attempt to go to the court. Fundamental principles sometimes described as guidelines were also discussed taking aid of previous decisions. The judgment was pronounced in the peculiar facts of that case where the property was a dwelling house and there was no prima facie evidence of its partition or separation. In the instant case, existence of certain shops on the ground floor for the last several decades and a document of Jal Sansthan at least giving inference of some separation amongst co-sharers in the past, it raises a triable issue as regards the nature of the property also and it is for the trial court to determine the question of fact as to whether the property is completely a dwelling house as to attract Section 44 of the Transfer of Property Act and that too, in a situation where no relief of cancellation of sale deed or partition has been claimed in the present suit. 10. As far as judgment in Savitri Devi (supra) is concerned, the same had arisen out of a situation where a sale deed was executed in breach of an injunction order and the Court held the sale deed as void. The authority is not directly applicable in the facts of the present case. 11. As far as judgment in Shakir Khan (supra) is concerned, the same had arisen out of an ex-parte ad-interim injunction granted by the trial court and dismissing misc. civil appeal by the district court. This Court dealt with the law governing grant of temporary injunction and observed that object of granting temporary injunction is to preserve the suit property from being dissipated or destroyed. The Court also observed that, admittedly, the application for temporary injunction was pending and both the parties would have opportunity to address the trial court on the issues involved. In the instant case, the property is neither being dissipated nor destroyed nor is the injunction application pending consideration. Any addition to the property by way of raising construction, in the facts of the present case, shall certainly be subject to final decision in the suit and in the opinion of the Court none of the parties would suffer irreparable loss on account of raising of constructions. However, certainly, the demolition or damage to the adjoining property in possession of the appellants has also to be protected during the pendency of the suit. 12. In Mandali Ranganna (supra), the Supreme Court dealt with a case where substantial constructions had been raised after spending huge sums of money. The Supreme Court thought it proper not to stop further constructions and held that same be made subject to the ultimate decision of the suit. Direction for expeditious disposal of the suit was also issued. 13. Padhiyar Prahladji Chenaji (supra) is a judgment arising out final determination of the suit, first appeal and second appeal and the Supreme Court, after dealing with the facts of the case, decision of the High Court on the substantial question of law framed in second appeal, made observations regarding maintainability of suit. With great respect, the judgment of Supreme Court is not directly applicable in the present case where the instant appeal has arisen out of decision of an application for temporary injunction nor is the question of maintainability of suit involved before this Court. 14. In view of the above discussion, this Court is of the view that the trial court has erred in part in refusing to grant injunction and, hence, in the totality of facts and circumstances of the present, the instant appeal is disposed of with following directions:- (i) No third party rights shall be created by the parties to Original Suit No.1473 of 2024 till disposal of the suit. (ii) The respondent is permitted to complete construction of the building subject to building regulations but the appellants shall not be dispossessed from their portion as it exists on today till disposal of the suit. Constructions raised shall remain subject to ultimate decision of the suit. (iii) The construction activity shall not be carried out in the manner which may cause any damage to the portion in possession of appellants. (iv) Pleadings shall be exchanged between the parties by the end of March, 2025. (v) Issues shall be framed by the trial court by the end of April, 2025. (vi) Plaintiffs' evidence shall be completed within next three months thereafter. (vii) Defendant's evidence shall be completed within next three months thereafter. (viii) Suit shall be decided finally within next three months thereafter. Order Date :- 27.1.2025 AKShukla/- Digitally signed by :- ANIL KUMAR SHUKLA High Court of Judicature at Allahabad