The relief of injunction is a discretionary relief, and the scope for interference in appeal is limited.

JUDGMENT :

Challenging impugned order dated 17.12.20221 passed on I.A.No.1 filed under Order XXXIX Rule 1 and 2 CPC by XIV Addl. City Civil Judge & concurrent charge of XXXVIII Addl. City Civil Judge, Bengaluru, (CCH-39) in O.S.No.8997/2019, this appeal is filed.

2. Appellant herein is plaintiff, while respondent herein was defendant. For sake of convenience, parties shall hereinafter referred as such in this appeal.

3. O.S.No.8997/2019 was filed seeking for relief of permanent injunction restraining defendant from interfering with plaintiff's peaceful possession and enjoyment of suit schedule property bearing no.9. 1st Cross, Levelle road, Bangalore, measuring, approximately 5500 sq.ft. with structure on it (hereinafter referred to as 'suit property'). In suit, plaintiff filed I.A.No.1 under Order XXXIX rule 1 and 2 of CPC seeking order of temporary injunction restraining defendant from interfering with his peaceful possession and enjoyment of suit schedule property during pendency of suit. In affidavit filed in support of application, it was stated averment in plaint were to be read as part and parcel.

4. On consideration, trial Court passed impugned order dismissing application. Aggrieved thereby, this appeal is filed. Plaintiff/appellant appeared in person and submitted that impugned order suffers from various vices including nonapplication of mind. Elaborating same, it was stated that observation of trial Court regarding extent of share of plaintiff and defendant differed in different places of impugned order.

5. While in para no.3, it observed that plaintiff along with other family members entered into family settlement on 9.4.2010 wherein defendant has got 50% undivided share; In para no.8, it observed that plaintiff and defendant were having 50% undivided share and in para no.10, it observed that plaintiff's father and his children were jointly entitled for share in suit property. Thus non-application of mind was evident.

Trial Court further observed that injunction cannot be granted against co-owner of property, which would be unsustainable since plaintiff acquired title over entire suit property, which by adverse possession. Under such circumstances refusal to grant interim order only on ground that plaintiff had made out triable case, but not prima facie case would be unsustainable.

It was further contended that being biased with false averments made in written statement, trial court held that plaintiff has not made out prima facie case.

Even reason assigned that there were no averments in application or in plaint regarding prima face case would be unsustainable.

6. He relied upon decision of Hon'ble Supreme Court in Vidya Devi Alias Vidayavati (dead) by Lrs. Vs. Prem Prakash and Others : (1995) 4 SCC 496, wherein, it was held in para no.28 held as under:

"28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a coowner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."

Attention was also drawn to affidavit filed, wherein it was stated that defendant was staying in Mumbai, to substantiate that she was not in possession of suit property as on date of suit.

7. Further, relying on judgment of Himachal Pradesh in Ramesh Kumar Vs. Smt. Sheetal and Ors. : 2021 AIR CC 643, It was submitted that a co-owner would claim injunction against another co-owner. Attention was drawn to para no.17of said judgment wherein it was observed that e