A co-owner can seek a temporary injunction to prevent alterations to property during ongoing litigation to protect their rights.

JUDGMENT

P.K. Lohra, J. - Appellant, by the instant appeal, under Order 43 Rule 1 read with Section 104 CPC, has challenged impugned order dated 5th of August, 2010, passed by Addl. District Judge (Fast Track) No.4, Jodhpur (for short, 'learned trial Court')- By the impugned order learned trial Court allowed the application of respondent-plaintiff under Order 39 Rule 1 & 2 CPC for grant of temporary injunction in a suit for partition and issued direction to the appellant-defendant to maintain status-quo regarding the suit property.

2. Precisely, in the application for temporary injunction filed alongwith the suit, the plaintiff stated inter-alia that she being daughter of Late Brij Kishore Agrawal is entitled to her l/3rd equal share with other co-sharer her sister Kavita and brother Deepak in movable and immovable properties left by her father. It is averred that her brother got executed relinquishment deed from her sister Kavita and wish to raise new construction on the land of disputed property, which may create unnecessary complications in future and would result in multiplicity of proceedings besides clogging the fruits of the future decree to be passed. In substance, respondent pleaded that altering the nature of property shall have also detrimental effect on her rights. She, therefore, prayed for a temporary injunction against appellant-defendant restraining him from raising any construction on the disputed property or demolish the existing building or change its shape.

3. Appellant-defendant contested the application denying the averments of the application. In the reply, appellant-defendant stated that respondent-plaintiff has already got a house situated in Milkman Colony in lieu of her share and on the disputed property no new construction is being carried out but only the existing building is being renovated.

4. The learned trial Court, after hearing arguments of rival parties, found prima facie case in favour of respondent-plaintiff and also taking into consideration other ingredients viz., balance of convenience and irreparable loss, allowed the application for temporary injunction directing the appellant-defendant to maintain status quo. I have heard learned counsel for the appellant, learned counsel for the respondent and perused the impugned order as well as material available on record.

5. Learned counsel for the appellant has assailed the impugned order on many grounds and in support thereof has placed reliance on following judgments:

1. Kochunju Nair vs. Koshi Alexxander & Ors., AIR 1999 SC 2272

2. Smt. Vimla Devi vs. Jang Bahadur, AIR 1977 Raj. 196

3. Manglam Cement Limited Vs. The Goods Supervisor, Western Railway, Kota & Ors., (1992) 2 WLC (Raj.) 742

4. Mandir Radhey Shyam Dharmarth Trust & Ors. vs. Gram Panchayat, AIR 2009 (NOC) 1495 (P&H)

5. Bachan Singh vs. Swaran Singh, AIR 2001 Punjab & Haryana 112.

6. Per contra, learned counsel for the respondent-plaintiffs has stoutly defended the impugned order and urged that no interference with the same is warranted. Learned counsel has relied on following decisions:

(1) Maharwal Khewaji Trust (Regd) Faridkot vs. Baldev Dass, (2004) 8 SCC 488.

(2) Roop Chand vs. Indradevi & Ors., AIR 1997 MP 2000.

7. There remains no quarrel in the factual position that suit filed by the respondent-plaintiff is for partition of Hindu undivided property and both the parties are siblings. Respondent-plaintiff in her suit has claimed l/3rd share from the property owned by her father Late Brij Kishore, who died intestate as well as her mother Smt. Jatan Devi also predeceased. The suit filed by the respondent is pending since 2006 and by now has materially progressed. Since passing of the impugned order also more than 8 years have passed. Although learned counsel for the appellant has laid stress on his exclusive possession over the disputed property to thwart prayer for temporary injunction of the respondent-plaintiff but then it is not an abstract principle which can be pressed into service wh