A co-owner can file a suit for permanent injunction against another co-owner to protect his rights in the property.

1. The Civil Revision Petition has been filed against the order of Principal District Judge, Nagapattinam, in C.M.A.No3/96 confirming the order of the learned District Munsif, Thiruthuraipoondi, in I.A. No. 1161/95 in O.S. No. 249/95.

2. The facts giving rise to the present Civil Revision Petition are as follows:

One Ganesa Nadar had six sons. The eldest son Ramaiah is the plaintiff in the suit and the respondent in the Civil Revision Petition. The petitioners are respectively the first and the second defendants in the suit being the widow and son of Sarangapani, brother of the respondent. The case of the respondent in the suit is as follows Ganesa Nadar died intestate. The lands were divided. Only the suit building was kept in common. This was pursuant to an oral partition. The resppondent/plaintiff was in management, realising rent, paying taxes, etc. There is a vacant site between two portions of the suit building. The revision petitioners/defendants either jointly or individually have entered into an agreement withe the third defendant in the suit one Panneerselvam and the second respondent in the Civil Revision Petition for sale of the suit property. The Revision Petitioners have no right to sell the suit property. The suit has therefore been filed for an injunction restraining, the Revision Petitioners from entering into any agreement or selling or otherwise alienating the property.

3. The Revision Petitioners are resisting the suit contending inter alia as follows:

The plaintiff/first respondent has filed the suit with ulterior motive to extract money. It is false to say that the building and house sites had not been divided. The plaintiff himself has sold the building to the Revision Petitioners and the need to dispose of the property is for celebrating the marriage of Sarangapanis daughter.

4. Pending suit the first respondent applied for temporary injunction, which was granted by the first Court and the appeal filed by the Revision Petitioners was dismissed. Aggrieved the present Civil Revision Petition has been filed.

5. Mr. V.K. Vijayaraghavan, learned counsel for the Revision Petitioners, vehemently submitted that the suit itself is not maintainable, that this kind of suit is unheard of and if at all, the plaintiff has a remedy only by way of a suit for partition. It is the submission of the learned counsel that when the main relief itself cannot be granted, the interim relief cannot be equally granted.

6. In support of his submissions the learned counsel relied on a number of decisions:

(1) K.P.M. Aboobucker v. K. Kunhamoo and others (AIR 1958 Madras 287 = 1958-I MLJ 303 = 71 L.W. 211)

(2) R. Venkataswami Naidu v. M/s. South India Viscose Ltd. (100 L.W. 801 = 1985-II MLJ 277)

The learned counsel also submitted that when the Court had no jurisdiction, this Court can exercise suo motu powers and grant relief. In support he relied on the judgment of this Court in Rasu v.

Kokilam and another (1994 TLNJ 324) and Nicco Corporation Ltd. v. Cathar Vessels Ltd. and another (1997-3- L.W. 599).

6. Per contra, Mr. Srinath Sridevan, learned counsel for the respondents, contended that the suit was perfectly maintainable and in support of his stand, he relied on the following decisions:

(1) Nagam Siva Reddy v. B. Hasamuddin Saheb (AIR 1966 Andhra Pradesh 373)

(2) Rukmani and others v. Thirumalai Chettiar (AIR 1985 Madras 283 = 98 L.W. 83 and

(3) V. Devarajan v. R. Purushothaman and three others (1998(1) CTC 22).

7. Two Courts have concurrently held that the first respondent had made out a case for injunction pending suit. No doubt, the suit itself is one for permanent injunction and the permanent injunction is prayed for against co-owners.

8. In Nagam Siva Reddy v. Hasamuddin Saheb it was held that suit for permanent injunction was a proper remedy by a co-owner against decree-holder purchaser of property in Court sale taking a stand that the property was the separate and exclusive property of the judgment debtor and not of