Defendants in possession putting up construction of property.

1. This second appeal has been preferred by the plaintiff.

2. The suit was filed for permanent injunction. According to the plaintiff, the suit property is an undivided property among the plaintiff and other co-sharers, including one B. Rengasamy Naidu. In O.S.No.257 of 1946, a large item of property was sought to be partitioned. The said B. Rengasamy Naidu has half share in the entire property. The plaintiff got 2/24 i.e., 1/12th share in the suit property.

In O.S.No. 257 of 1946, the Court directed the suit property to be sold and shared by the sharers, but that was not done. The defendants 2 and 3 purchased a portion of the suit property from Rengasamy Naidu. They were attempting to put up some construction in the undivided suit property. Hence, the plaintiff filed the suit.

3. The written statement filed by defendants 1 to 3, it is contended that they are the co-sharers in the suit property. The plaintiff is not entitled for partition against his co-sharers. His remedy is to file a suit for partition. According to the defendants, the suit property has been divided and each party put up a thatched shed in their respective shares and the thatched shed has been rented out to third parties. According to the defendants, the plaintiff is in possession of the property in the west and has put up sheds. The first defendant has stated that he has put up construction in a portion of the property in his possession. He has also undertaken to remove the construction in the portion if the portion does not fall to his share, if it is found that there was no division already.

4. The third defendant has stated in her written statement that she purchased a portion from Rengasamy Naidu, son of Srinivasan, a specified portion which was in enjoyment of his vendors. She also states that each co-sharer is in possession of certain area in the suit property for the purpose of enjoyment. According to her also the remedy for the plaintiff is to file a suit for partition.

5. The trial Court after considering the evidence granted injunction in favour of the plaintiff. On appeal by the defendants, the Subordinate Judge, Coimbatore, allowed the appeal and set aside the decree and judgment of the trial Court.

6. The main contention urged by the learned counsel for the appellant is that no injunction can be granted against a co-sharer. There was no division by metes and bounds. Hence, the presumption is that each of the co-sharer is in possession of several parts of the land. Therefore, the defendants are not entitled to put up any construction.

7. On the other hand, the learned counsel for the respondents contended that the plaintiff obtained a decree for partition in O.S.No.257 of 1946. In the final decree in the said suit, it was directed that the suit property must be sold and the sale proceeds must be shared among the co-sharers. But this direction in the final decree was not complied with. On the other hand, the plaintiff is deliberately attempting to prevent the defendants from putting their share into proper use. Hence, he is not entitled to do so.

8. The appellate court has taken/note of the directions in the final decree and also admitted the fact that the plaintiff was entitled to 1/12th share in the suit property. Considering that if the defendants have put up construction, the plaintiff would not be put to any prejudice, the lower appellate Court set aside the trial Court’s decree and judgment and thereby refused to grant injunction.

9. The share of the plaintiff is only 1/12th, it is fraction compared to the share of the defendants. Further, the conduct of the plaintiff also could be taken note of. The interim final decree is dated 22-2-1954, as seen from Ex.A.1. The suit has been filed only in 1980. For such a long time, the plaintiff has not chosen to work out his remedy by getting the property sold and having a share in the sale proceeds. When his rights has been finally crystalised i.e., to get a share in the sal