A co-sharer can file a suit for injunction against another co-sharer to prevent construction of a building over the undivided land. However, where a suit for division of holding is pending, the proper course for the co-sharer is to file an application in that suit for preparation of final decree on the basis of preliminary decree. In such a case, a suit for permanent injunction is not maintainable.

( 1 ) THIS is an appeal against order dated 18th August, 1998 passed by Civil Judge, Agra by which an order of injunction issued earlier has been vacated.

( 2 ) THE brief facts of the case are that one Smt. Kanak Lata and plaintiff/appellant Smt. Urmila devi jointly purchased a piece of bhumidhari land consisting of plot No. 425/area one bigha and 426 Minjumla/seven biswa situate in Mauza Gehrana Mustqll pargana and tehsil Agra in the year 1965 having equal share. Out of the said area of one bigha seven biswa, seven biswa of plot No. 426 and five biswa of plot No. 425 was acquired by Rig. Division of Irrigation Department for which compensation was paid to the appellant and Smt. Kanak Lata leaving 15 biswa of plot No. 425/1 with Smt. Urmila Devi and Smt. Kanak Lata. Smt. Kanak Lata by a sale deed dated 2. 4. 1986 sold 7. 5 biswa of said land to defendant/respondents Pooran Chand and Abhay Gupta, which is equivalent to her share in whole of the plot. When Pooran Chand and Abhay Gupta started construction on one half of western portion of the land, Smt. Urmila Devi filed a suit for permanent injunction in which a temporary injunction was granted in her favour on 28th April, 1998 by Court below. Being aggrieved against the order of injunction, an appeal was filed before this Court and on 27th May, 1998 this Court ordered the parties to maintain status quo. However, the defendant got the appeal before this Court dismissed as not pressed on 29th May, 1998.

( 3 ) ON 1st of July, 1998, the defendants filed an application before Court below for recall of injunction order dated 28. 4. 1998 and by the Impugned order dated 18th August, 1998. the Court vacated order of injunction in exercise of power under Order XXXIX. Rule 4, C. P. C. Hence this appeal filed by the plaintiff.

( 4 ) WE have heard Sri Vineet Saran, learned counsel for the plaintiff/appellant and Sri Dinesh dwlvedi, learned counsel for the defendants/respondents, and have perused the record.

( 5 ) IT was argued by the learned counsel for the respondents that a suit for injunction was. not maintainable and the proper remedy for the plaintiff was to file a suit for partition. Learned counsel for the plaintiff/appellant has cited certain authorities in which it has been held that a co-sharer can file a suit for injunction against another co-sharer so as to prevent construction of a building over the undivided land.

( 6 ) IN our opinion, it is not necessary to go into this legal question because we find from record that not only a suit under Section 176 of U. P. Zamindari Abolition and Land Reforms Act (in short "act") for division of holding had been filed by Smt. Kanak Lata but the suit was also decreed and a preliminary decree was passed. This is admitted by plaintiff Smt. Urmila Devi herself in her application dated 10th July, 1998 that an ex parte preliminary decree has been passed by Sub-Divisional Officer, Agra on 27th July, 1997 in the suit filed by Smt. Kanak Lata against her. The Court assigned one half share to Smt. Kanak Lata and one half share to Smt. Urmila Devi but no final decree has been prepared as neither party applied for the preparation of the same. It is well-settled that in a suit for partition, all the co-sharers, who have been assigned share, are in the position of a decree-holder. Therefore, the proper course for Smt. Urmila Devi was to have filed an application in that suit for preparation of final decree on the basis of preliminary decree dated 27. 7. 1987. As the suit for division of holding is still pending while transferee of Smt. Kanak Lata started construction over part of the plot soon after purchase of said plot. It was not open to Smt. Urmila Devi to have filed a suit for permanent injunction.

( 7 ) THE learned counsel for appellant contended that in a suit for division of holding, no injunction can be issued under Order XXXIX of Code of Civil Procedure in respect of grant of temporary injunction. We are not inclined to accept