HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 14521 of 2024 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. Versus Counsel for Petitioner(s) : Devaang Savla, Udayan Nandan Counsel for Respondent(s) : Sharad Chand Rai Rajkumar Tiwari .....Petitioner(s) Munnalal Tiwari And Another .....Respondent(s) 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 A227 No. 14521 of 2024 2 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. September 24, 2026 A. V. Singh A227 No. 14521 of 2024 3 (Rohit Ranjan Agarwal,J.) Digitally signed by :- AJAY VIKRAM SINGH High Court of Judicature at Allahabad