JUDGMENT :

The instant appeal arises from an order dated 27th February, 2023 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore, South 24-Parganas in Title Suit No. 574 of 2008; by which an application for temporary injunction filed by the plaintiff/respondent is allowed directing the parties to the suit to maintain status quo with regard to nature, character and possession of the properties described in the schedule appended to the plaint till the disposal of the suit.

2. At the very outset we must record that the manner in which the application for temporary injunction has been decided by the Trial Court is not in commensurate with the principles laid down in this regard. The order does not reveal the findings in relation to existence of prima facie case nor in relation to balance of convenience and inconvenience or irreparable loss and injury.

3. The Trial Court has proceeded simplicitor on the basis that every co-sharer in a joint property has the right, title and interest therein and, therefore, if a third party right is created, it would cause sufferance to the parties to the suit. Even if we consider that the aforesaid findings are relatable to balance of convenience and inconvenience and irreparable loss and injury, yet the ultimate order passed by the Trial Court does not appear to be in tune with the aforesaid findings.

4. Our meticulous reading of the aforesaid findings leaves an impression that it was referable to divestation of right in respect of the joint property, but the order of injunction is passed in relation to the nature, character and possession of the parties therein, which, in our opinion, appears to be inconsistent.

5. Be that as it may, we do not intend to go much deep into the aforesaid aspect after hearing the respective Counsels appearing before us.

6. The Counsel appearing for the plaintiff/respondent submits that if the share held in the joint property is transferred, it would bring an anomalous situation at the time of passing the final decree and the creation of a third party right would further jeopardize the case of the plaintiff/respondent. We do not find the nature of the order passed by the Trial Court is in commensurate with the stand of the plaintiff/respondent.

7. The Division Bench of this Court in case of Shyam Kumar Panja & Anr. vs. Lakhiniwas Chittiangia reported in (2020) 1 Cal LT 166 held that the Court should not restrain any of the co-sharers from transferring his share held by him in the joint property, as the transferee pendente lite would be bound by the decision taken in the partition suit and his right, title and interest would be subject to the final decree passed in the said suit. However, the Division Bench observed that so far as the construction to be made in the best portion of the property is concerned, the Court may depending upon the facts of each case pass an order of injunction as it may sometime invite irreversible situation in the following:

“19. Since the property is a joint property, it is presumed that the parties have their respective right, title and interest to the extent of their shares in the joint property and a co-sharer holds possession not only on his behalf but also on behalf of the other co-sharer as well in such property. The plaintiff has filed a suit for partition thereby admitting that the defendants are his cosharers. As such no injunction can be passed restraining a co-sharer from possessing the joint property. It is also equally true that a co-share