A co-owner cannot seek permanent injunction against another co-owner without proof of exclusive possession or ouster. The remedy for a co-owner out of possession is to file for partition, not to seek an injunction.

JUDGMENT :

ALKA SARIN, J.

CM-3495-C-2020

1. For the reasons mentioned therein, the application seeking condonation of 154 days delay in refiling the appeal is allowed. The delay in refiling the appeal is condoned.

RSA-1090-2020

2. The present regular second appeal has been preferred by the plaintiff No.2 (plaintiff-appellant) against the judgements and decrees dated 24.05.2016 and 22.04.2019 passed by the Trial Court and the First Appellate Court dismissing the suit for permanent injunction.

3. The suit for permanent injunction was filed by the plaintiffs - Smt. Mitlesh Devi (plaintiff No.1-respondent No.2 herein) and Smt. Savitri Devi (plaintiff No.2-appellant herein) - averring that they were the owners in possession of the suit land and had raised a boundary wall around it by spending a huge sum of money. Though the defendant-respondent No.1 had no concern with the suit land but he was forcibly bent upon to interfere in the peaceful use and possession of the plaintiffs by ousting them after taking forcible possession and raising construction as well as alienating the suit land. Though the plaintiffs had repeatedly requested the defendant- respondent No.1 not to interfere in their peaceful use and possession of the suit land by way of raising construction and taking forcible possession, but to no avail. Hence, the suit. The suit was contested by the defendant- respondent No.1 who in his written statement raised preliminary objections regarding maintainability, locus-standi, cause of action and concealment of true and material facts, estoppel, etc. The defendant-respondent No.1 set up his ownership over 100 sq. yards out of the suit land vide sale deed dated 30.07.2012 got executed through court in execution of a decree for specific performance. The competency of the vendors of the plaintiffs to sell them the suit land was also challenged. No replication was filed by the plaintiffs.

4. From the pleadings of the parties following issues were framed by the Trial Court :

1. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for in the head note of the plaint ? OPP

2. Whether the suit is not maintainable in present form ? OPD

3. Relief.

5. Vide judgement and decree dated 24.05.2016 the Trial Court dismissed the suit of the plaintiffs. Only the plaintiff-appellant herein i.e. plaintiff No.2 filed an appeal against the judgement and decree of the Trial Court. However, the said appeal of the plaintiff-appellant was also dismissed by the First Appellate Court vide judgement and decree dated 22.04.2019. Hence, the present regular second appeal by the plaintiff-appellant.

6. Learned counsel for the plaintiff-appellant has contended that both the Courts have erred in dismissing the suit of the plaintiffs. It is urged that the plaintiffs had purchased the suit land vide registered sale deed and were in possession thereof and therefore their suit for permanent injunction deserved to be decreed.

7. Heard counsel for the plaintiff-appellant and perused the paper-book.

8. In the present case the suit of the plaintiffs has been dismissed by both the Courts. It has been found by the First Appellate Court that the parties i.e. the plaintiffs and the defendant are co-sharers in the suit land. In the absence of any evidence led by the plaintiff-appellant that she was in exclusive possession of the suit land and that there had been a partition, the First Appellate Court has rightly held that the suit for injunction qua a co-sharer would not be maintainable.

9. A Full Bench of this Court in the case of Bhartu vs. Ram Sarup [1981 PLJ 204] has held as under :

“(a) A co-owner has interest in the whole property a