1. This appeal was admitted to hearing on 21.08.2003 on the following substantial question of law:-

“Whether a co-owner can seek an injunction, restraining the other co-owner from using a joint property or raising construction thereon without seeking relief of partition?”

2. I have heard learned counsel for the parties at length on the aforesaid question of law. Before I proceed to deal with the rival contentions, it would be appropriate to refer to the factual matrix in the context of which, this Civil Second Appeal has arisen.

3. The appellant herein was defendant in the trial Court. The respondent herein was the plaintiff who had filed the suit for permanent prohibitory injunction against the defendant, who is appellant herein. To avoid confusion, the parties are hereinafter referred to as “the plaintiff” and “the defendant”. The suit filed by the plaintiff against the defendant was for seeking a decree of permanent prohibitory injunction; with a further relief of mandatory injunction on the ground that the plaintiff and the defendant were joint owners in possession of the land measuring 4 kanals 10 marlas comprised in Khasra No.703 situated in village Dhanori, Tehsil Udhamapur in equal shares. The case set up by the plaintiff in the suit was that the parties without going for partition by metes and bounds had constructed their respective houses in two different portions of the aforesaid joint holding and that in between the houses of the parties, there exited a common passage. It was alleged that the defendant, who was raising the construction of his house had also raised the plinth over the common passage. The suit was resisted by the defendant on the ground that he had already completed the construction and was only to fix the doors and windows etc. and that he had raised the construction after dismantling the old structure of his house which was in his settled possession for the last several years. The defendant, however, admitted in the written statement that he had laid the plinth for Varandha but had not completed the construction. A specific plea was taken by the defendant that since the suit land was the joint property of the parties which had not been partitioned and therefore, the plaintiff was not entitled to claim any relief unless the suit land was partitioned by metes and bounds. The maintainability of the suit on this score was challenged by the defendant.

4. On the basis of pleadings of the parties, four issues were framed by the trial Court. The issue No.1 which pertained to the maintainability of the suit was treated as a preliminary issue and the same was decided in favour of the plaintiff and against the defendant by the order of the trial Court dated 22.05.1998. The other issues were not held proved in favour of the plaintiff and, accordingly, the suit was dismissed. The trial Court found discrepancy in the oral evidence with regard to the extent of encroachment allegedly made by the defendant over the suit passage. The trial Court also found fault with the frame of suit on the ground that the plaintiff in his suit had not specifically indicated demarcation and dimension of the suit passage. On an appeal, the appellate Court reversed the judgment and decree passed by the trial Court and decreed the suit in favour of the plaintiff. The appellate Court reversed the judgment and decree of the trial Court primarily on the ground that the discrepancy in the oral evidence brought on record by the plaintiff was minor and inconsequential and the plaintiff had amply proved that their existed a common passage between the residential houses of the parties and the defendant had encroached a part of it by laying plinth for construction of his Varandha. The appellate Court also relied upon the statement of the defendant to come to the aforesaid conclusion.

5. Feeling aggrieved, the defendant has come up before this Court in this Civil Second Appeal. As noted above, this Court on consideration of the matter admi