A suit for permanent prohibitory injunction against a co-owner is not maintainable unless a formal partition has occurred, reaffirming the principle of joint ownership.

ORDER :

1. Heard learned counsel for the parties.

2. The civil suit came to be commenced by three plaintiffs, namely, Raj Kumari, Sham Parsad, Jagdish Kumar against Lakhmi Chand. The suit so filed by the said three plaintiffs came to be on file No. 210/Civil of 2006 before the court of Sub Judge, Poonch.

3. Through the medium of the suit, the said three plaintiffs sought a decree of permanent prohibitory injunction for restraining said sole defendant-Lakhmi Chand with respect to suit land measuring 7 marlas in khasra No. 1565/3 new (3014/772 old) forming subject matter of sale deed dated 09.10.1969 and land measuring 9 marlas comprised in khasra No. 1566/1 in located in City Poonch.

4. The suit went to contest generating the following issues:

“Issue No. 1 - Whether the injunction suit in present form against co-sharer/co-owner is not maintainable? (OPD)

Issue No. 2- Whether this suit of plaintiffs is hit by the principle of Resjudicate. (OPD)

Issue No. 3- Whether plaintiffs are in possession of half share in suit land i.e. land measuring seven marlas in Kh. No. 1563/3 and one marla in Kh. No. 1566/1 situated at Poonch City? (OPP)

Issue No. 4- Whether ancestral kaccha house which is existing in the suit land is exclusive property of plaintiffs? (OPP)

Issue No. 5- If the issues No. 3 and 4 are proved in affirmative then whether the defendants are making any kind of interference into the suit property? (OPP)

Issue No. 6- Whether defendant is going to cause obstruction into the right of light, air and pathway leading to the house of plaintiffs by raising construction over the suit land? (OPP)

Issue No. 7- Relief, if, any is the plaintiff entitled to? (OPP)”

5. By virtue of an order dated 09.07.2009, issue No. 2 came to be decided in favour of the plaintiffs as being a preliminary issue and rest of the issues were put to evidence.

6. On the basis of the evidence so led from both sides, the trial court of learned Sub-Judge, Poonch came to hold issue No. 1 in favour of the sole defendant by holding that the suit for permanent prohibitory injunction by one co-sharer against another co-sharer is not maintainable as the plaintiffs and sole defendant were found to be.

7. With respect to issue No. 3, the same was held against the plaintiffs holding the property forming subject matter of the sale deed to be in a state of jointness and with respect to claim of possession of one marla of land in khsara No. 1566/1, the same was held against the plaintiffs.

8. Issue No. 4 also came to be decided against the plaintiffs and in favour of the defendant.

9. Issue No. 5 also came to be held in favour of the sole defendant and against the plaintiffs.

10. The cumulative effect of the evidence and the findings returned by the trial court led to the dismissal of the suit of the plaintiffs against which a civil 1st appeal under section 96 of the Jammu and Kashmir Code of Civil Procedure, Svt. 1977 came to be taken on file No. 25/Appeal of 2018 before the court of Principal District Judge, Poonch.

11. Said civil 1st appeal also suffered dismissal thereby confirming the findings of facts returned by the trial court. Civil 1st appeal so filed by the plaintiffs came to suffer dismissal by virtue of a judgment and decree dated 19.10.2023.

12. Aggrieved of the outcome of the civil 1st appeal, the original plaintiffs came forward with the present civil 2nd appeal, though at the time of filing of present civil 2nd appeal, one of the plaintiffs, namely, Ram Parsad had died and so his legal representatives, the appellants No. 3 & 4 came to join appellants No. 1 & 2 as being the original plaintiffs to be in the present civil 2nd appeal.

13. This Court, in terms of an order dated 03.05.2024, came to admit the present civil 2nd appeal on the substantial question of law as proposed in the memo of appeal which is reproduced herein as under:

“Whether the courts have erred, factually and legally, in overlooking and statement of the respondent recorded under Order X of the Code of Civil Proce