Mr. Raj Mohan Singh, J.:- Petitioner has assailed order dated 16.04.2016 (Annexure P-2) passed by District Judge, Moga whereby order dated 19.11.2015 passed by the trial Court was set aside and application under Order 39 Rules 1 and 2 CPC was dismissed.

2. Brief facts of the case are that the plaintiff/petitioner filed a suit for permanent injunction seeking to restrain the respondent from interfering in his possession, except in due course of law. Along with suit, an application under Order 39 Rules 1 and 2 CPC was also filed. Plaintiff/petitioner alleged that he was recorded as owner of the suit land. Initially, father of the parties namely Lachman Singh was owner of the suit land, but he transferred his entire share in the suit land in the name of plaintiff/petitioner as respondent had fallen into bad company and was addicted to many vices. Mutation was sanctioned in favour of the petitioner and he was in actual cultivating possession of the suit land.

3. Defendant/respondent contested the claim of the plaintiff/petitioner on the ground that earlier, he had filed a suit for joint possession of the suit land which was pending before the trial Court, whereby the plaintiff/petitioner did not appear despite service through the process of munadi. Plaintiff/petitioner fraudulently got the property transferred from his father on 20.05.2015 during pendency of the aforesaid suit and the transfer in question was hit by doctrine of lis pendens. Plaintiff had concealed the factum of pending litigation in the present suit and the suit was claimed to be baseless.

4. Trial Court granted ad interim injunction in favour of the plaintiff/petitioner whereby the defendant was restrained from interfering in the possession of the plaintiff, except in due course of law.

5. Lower Appellate Court reversed the order of the trial Court dated 19.11.2015 on the premise that the plaintiff was not found to be in exclusive possession of any specific portion of the land, therefore, the defendant being co-sharer cannot be restrained from asserting his right of being in joint possession.

6. I have heard learned counsel for the parties.

7. Evidently, a suit for joint possession at the instance of defendant was already pending between the parties before the Civil Judge, Moga. Plaintiff/petitioner has not appeared in the said suit despite service effected through the process of munadi. Father of the parties was owner of defined share and he transferred his entire share in the name of the petitioner except Khasra Nos.50//19/3, 23/1. Mutation of aforesaid transaction was sanctioned in favour of the plaintiff. Plaintiff asserted his possession on the basis of aforesaid transfer to the exclusion of the defendant.

8. At this stage, It cannot be appreciated as to whether the property/land was self acquired or ancestral property in the hand of father of the parties Lachman Singh. The alleged status of defendant being co-sharer and in joint possession is also sub judiced in a pending suit before the Civil Judge, Moga. The pleaded case of the plaintiff is that the father of the parties was owner to the extent of 11/31 share and he transferred his entire share in the name of plaintiff, therefore, it was a case of total replacement of Lachman Singh with the plaintiff. For want of pleading, factum of co-sharership cannot be appreciated at this stage, because lis is between plaintiff and defendant alone.

9. At this stage, only a prima facie case is to be seen, which according to sanctioning of mutation of the entire share in favour of plaintiff is made out. Plaintiff is proved to be in possession. The status of defendant on the basis of joint possession is yet to be determined by the Court. It is settled principle of law that a co-sharer (though the subject matter is still sub judiced out of possession can ask for partition of the land.

10. At this stage, all the three ingredients viz. existence of prima facie case, balance of convenience and irreparable loss in the