A suit for injunction is not maintainable against a co-sharer.

N.K. Kapoor, J. - Plaintiff and defendant are real brothers. Plaintiff filed a suit for permanent injunction restraining the defendant from interfering in his possession over the land described in the head-note of the plaint. According to the plaintiff, he is owner to the extent of 1/4th share in the joint holding and in possession of the whole of the suit land i.e. remaining 3/4th on Chakota of Rs. 800/- on annual basis, since the defendant now intended to interfere in his peaceful possession, hence the present suit.

2. Defendant put in appearance and filed written statement. The defendant while admitting the ownership of the plaintiff to the extent of 1/4th share in the joint holding specifically denied his status as tenant at will on the basis of payment of Chakota amount in respect of the 3/4th share in the joint holding. According to the defendant, in fact, the never parted with possession of any part of the suit. The defendant further stated that some wrong entries made in the Khasra girdawari at the back of the defendant do not adversely affect his valuable right in any manner.

3. On the pleadings of the parties, following issues were framed:-

(1) Whether the plaintiff is in possession of the land in dispute as alleged ? OPP.

2. Whether the plaintiff is entitled to the injunction as prayed for ? OPP.

3. Whether the suit is not maintainable as against the defendant, he being co-owner ? PPD.

4. Relief.

4. The trial Court took up issues No. 1 and 2 together and after considering the oral as the well as documentary evidence adduced by the parties decided these issues in favour of the plaintiff. No evidence was led by the defendant in respect of issue No. 3 and so this issue was decided against the defendant. Resultantly, the suit of the plaintiff was decreed.

5. Defendant filed appeal against the judgment and decree of the trial Court challenging its legality as well as propriety. The lower appellate Court no reconsideration the evidence finally came to the conclusion that there is no proof on record that the defendant had inducted the plaintiff as tenant at will on payment of Chakota amount of Rs. 800/- annually as alleged by the plaintiff. Similarly, the lower appellate Court found no valid justification for the trial Court to refer the matter to a Local Commissioner to ascretion as to who was in actual cultivating possession at the spot. According to the lower appellate Court, since the matter of possession was to be determined by the Court, the same could not be entrusted to a Local Commissioner and any such finding by the Local Commissioner cannot bind a Court. At best, it can be treated as a piece of evidence and no more. The lower appellate Court further came to the conclusion that since both the parties are co-sharers, no injunction can be claimed against the other thus jeopardising his valuable right for all times. Resultantly, the appeal was accepted, thus dismissing the suit filed by the plaintiff.

6. Challenging the judgment and decree of the lower appellate Court terming it to be wholly illegal and otherwise unwarranted as per facts proved on record, counsel for the appellant once again referred to the pleadings of the parties, documentary evidence adduced to prove the contention raised as well as the oral deposition of the witnesses supporting the documentary evidence. According to the learned counsel for the appellant, defendant, in fact, had been serving in the Army and in his absence whole of land was being cultivated by the plaintiff. It is only a few years back that it was agreed between the parties that henceforth the plaintiff would pay a sum of Rs. 800/- annually as Chakota in respect of the share of the defendant and ever since then the land in dispute has remained in cultivating possession of the plaintiff to the exclusion of the defendant. The entries in the revenue record duly support the case of the plaintiff. This way the Court below has gravely erred in law in not properly construing the ent