Injunction against co-owners is not maintainable without proof of partition; remedies lie in seeking partition instead.

JUDGMENT :

A.D. MARIA CLETE, J.

1. This Second Appeal is directed against the judgment and decree of the learned Subordinate Judge, Kallakurichi, passed in A.S.No.30 of 2010, confirming the judgment and decree of the learned III Additional District Munsif, Kallakurichi, in O.S.No.1359 of 2004.

2. The plaintiffs in O.S.No.1359 of 2004 are the appellants herein. For the sake of convenience, the parties are referred to as they were arrayed before the trial court.

3. Facts in Brief:

The suit properties are admittedly ancestral properties originally belonging to one Thangavel Udaiyar, husband of the first plaintiff and father of the second plaintiff and the first defendant. The first defendant was born through Thangavel Udaiyar’s first wife, Arukaani. Thangavel Udaiyar died intestate on 05.01.1989. Defendants 2 and 3 are purchasers under the first defendant. The relationship between the parties as co-heirs of Thangavel Udaiyar is not in dispute.

4. The suit properties consist of agricultural lands and house sites situated at Kongarayapalayam Village, Kallakurichi Taluk, described in the plaint schedule under Patta Nos.737 and 1044.

5. Plaintiffs’ Case: According to the plaintiffs, after the demise of Thangavel Udaiyar, an oral partition allegedly took place on 25.09.2000, in which only 0.35 cents was allotted to the first defendant and the remaining properties were allotted to the plaintiffs. It was pleaded that an unregistered partition chit was also prepared on the same date and that the plaintiffs have been in exclusive possession thereafter. Alleging interference by the defendants, the suit was filed for bare permanent injunction.

6. Defendants’ case: The first defendant denied the alleged oral partition of 2000 and pleaded a different oral partition said to have taken place in the year 2001, under which half share was allotted to her. Defendants 2 and 3, as purchasers from the first defendant, contended that the suit properties continued to be joint family properties and that a suit for bare injunction against co-owners was not maintainable.

7. Both the Trial Court and the First Appellate Court, on a detailed analysis of pleadings and evidence, concurrently held that: the oral partition pleaded by the plaintiffs was not proved; the plaintiffs’ own evidence was inconsistent as to the year of partition; no panchayatdars were examined; the alleged partition chit was not marked; revenue records and tax receipts only reflected management and convenience, not partition or exclusive possession; the oral partition pleaded by the first defendant was also not proved, as she did not enter the witness box; consequently, the suit properties continued to be joint family / co-owned properties.

8. On the above findings, the suit for permanent injunction was dismissed, holding that injunction cannot be granted against co-owners or persons claiming under a co-owner.

9. At the time of admission, the following substantial questions of law were framed:

(i) Having held that the plea of oral partition raised by both the parties has not been established, whether the Courts below were right in refusing injunction on the ground that defendants 2 and 3 are co-owners along with the plaintiff, more so, when the sale deed in their favour of the defendant 2 &3 does not deal with an undivided share of the first defendant ?

(ii) Whether the Courts below were right in concluding that defendants 2 &3who are purchasers of specific items from the first defendant could be termed as co-owners along with the plaintiff and cannot be injuncted from interfering with the possession of the plaintiffs?

10. Learned counsel for the appellants submits that both the Courts below failed to properly appreciate the appellants’ case of an oral partition and their settled possession, and therefore erred in non-suiting them in a suit for permanent injunction; it is contended that there was an oral partition in the family and that the appellants have been in continuous peaceful possession and enj