A co-owner cannot seek an injunction against another co-owner regarding shared property; the appropriate remedy is partition.

ORDER :

1. The respondents No. 1 to 3 herein commenced a civil suit against 14 (fourteen) persons. The three appellants herein and the proforma respondents No. 4 to 14 are the said fourteen defendants. The civil suit filed by the respondents No. 1 to 3 against the appellants and proforma respondents No. 4 to 14 was for seeking a decree of permanent prohibitory injunction restraining 14 (fourteen) defendants (appellants and proforma respondents No. 4 to 14) from transferring, alienating, raising any sort of construction or changing the nature of land comprising khasra Nos. 18(26K-19M), khasra No. 73(5K-18M), khasra No. 70(9K-19M), khasra No. 92(3K-17M) out of khewat No. 3, khasra No. 40(8K-2M), khasra No. 42(1K-11M), khasra No. 50 (8K-8M) comprising khewat No. 4 and khasra No. 61(1K-1M), khasra No. 74(7K-16M), khasra No. 92(13K-13M), khasra No. 96(8K-17M), khasra No. 93/1(2K-5M) comprising khewat No. 6, total land measuring 98 kanals & 6 marlas situated at village Sitni, Nagrota, Jammu.

2. The suit was instituted before the court of Sub Registrar (Munsiff), Jammu on file No. 238/Civil dated 22.01.2008. The defendants No. 1 to 3, who are the appellants herein in the civil suit, came forward to contest the suit whereas the proforma respondents were proceeded ex parte.

3. On the basis of the written statement submitted by the appellants, the trial court of Sub Registrar, Munsiff came to frame issues in which Issues No. 1 & 2 came to be treated as preliminary issues and the same are as under:

1. Whether the suit in the present form is hit by Section 56 of the Specific Relief Act.

2. Whether the suit in the present form by a co-sharer against another co-sharer is not maintainable?

4. The trial court of Sub Registrar, Munsiff, Jammu, by virtue of an order dated 31.07.2014, has come to hold that the suit filed by the respondents No. 1 to 3 in essence was a suit against co-sharers and that law does not permit a co-sharer to sue another co-sharer of a property be it movable or immovable property in terms of its enjoyment and seeking injunction for and against each other.

5. Against this order of dismissal of suit, the respondents No. 1 to 3 preferred a civil 1st appeal under section 96 of the J&K Code of Civil Procedure, Svt. 1977 before the court of 1st Additional District Judge, Jammu which came to overturn the order of learned Sub Registrar-Munsiff, Jammu by virtue of a judgment dated 19.10.2018 with a direction to trial court to decide the suit in accordance with the procedure provided under law.

6. It is against this judgment of the 1 st appellate court that the appellants as being defendants No. 1 to 3 herein came to lay the civil 2nd appeal before this Court which has remained pending on the docket of this Court from January, 2019.

7. When this Court peruses the plaint filed in the suit by the respondents No. 1 to 3 in its entirety it admits of no doubt that the respondents are seeking decree of permanent prohibitory injunction against all the 14 (fourteen) defendants while pleading in the plaint that the defendants No. 4 to 14 are the co-sharers and joint holders of the suit land though not possessing the land as per their entitlement.

8. In the face of this express averment in the plaint obtaining and also the relief being sought in the suit meant against all the defendants there cannot be any escape from the fact that the one set of co-shares/co-owners are seeking to injunct other set of co-owners and co-sharers with respect to enjoyment of the co-owned/co-shared property and if such like decree is to be granted then that would mean that one set of co-sharers/co-owners are dictating the course of enjoyment of co-owned/co-shared property by the other set of co-owners/co-sharers and that is why the suit of said nature is conceived not to be maintainable in the eyes of lawgiven the fact that the best legal remedy which is available to a co-sharer/co-owner of an immovable property is to go for partition and have his/her share separated righ