Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1757

IN THE HIGH COURT OF ALLAHABAD
Ajit Kumar, J.
Phool Kumar – Petitioner
Versus
Shyam Singh And Others – Respondents
Matters Under Article 227 No. - 11228 of 2022
Decided On : 05-01-2023

Advocates:
Advocate Appeared:
For the Petitioner: Aditya Kumar Singh, Nipun Singh
For the Respondent: Syed Ali Imam, Syed Ali Imam

A co-owner cannot seek injunction against another co-owner without a suit for partition. The right to relief for demolition and injunction depends on the circumstances of each case.

Headnote:
Injunction - Joint Property Dispute - 2001 ALLJ 2551, 1997 ALLCJ 9, Manu /U.P. /0282/1964 (2003) 5 SCC page 150, T, Lakshmi Pati and others v. T. Reddy and others and Girdhari Lal v. Ram Lal; SCC Online J & K 693 : AIR 2019 J & K Page 1
Fact of the Case:
The plaintiff sought permanent prohibitory injunction against the defendant-respondents to prevent construction on joint land. The trial court granted the injunction, but the District Judge set it aside on appeal.
Finding of the Court:
The court found that the plaintiff's claim for injunction was not maintainable without a suit for partition. The defendants claimed that there was a mutual partition and only repair work was being done on their share of the property.
Issues: The main issue was whether the plaintiff's claim for injunction was maintainable without a suit for partition. The court also considered the nature of the construction activity and the existence of a mutual partition.
Ratio Decidendi: The court held that a co-owner cannot seek injunction against another co-owner without a suit for partition. It also emphasized that the right to relief for demolition and injunction depends on the circumstances of each case.
Final Decision: The court disposed of the petition, allowing the petitioner to seek amendment in the suit for partition or file a fresh suit for partition and maintain an application for injunction if new construction activity is undertaken on the joint land.

JUDGMENT :

1. Heard Sri Nipun Singh, learned counsel for the petitioner and Shri Syed Ali Imam, learned counsel appearing for the respondents.

2. Petitioner before this Court is the plaintiff in the suit instituted for permanent prohibitory injunction being O.S. No. 106 of 2020. In the suit, he moved a temporary injunction application being paper no. 6C along with an affidavit. After the written statement was filed and so also the objection to the pending 6C application by the defendant-respondents, the said application was finally granted by the trial court in favour of the petitioner with a direction to the parties to maintain status quo in respect of the suit property vide order dated 16.3.2021.

3. However, upon a miscellaneous appeal being filed under Order XLIII Rule 1(r) by the defendant-respondents, the said appeal came to be allowed by the District Judge, Gautam Buddha Nagar vide order dated 24.11.2022 setting aside the order of the status quo passed by the trial court.

4. The petitioner pleads that even in case no partition of the suit property has taken place in metes and bounds amongst co-sharers, the Court in order to protect the suit property and from being damaged by raising any construction in any manner or demolition exercise, direct the parties to maintain status quo. Reliance has been placed upon various judgements of this Court :

Awadh Narain v. Additional District Judge-IVth, Jaunpur and others; 2001 ALLJ 2551, Radhay Shyam and other v. Uma Shankar and others; 1997 ALLCJ 9, Ram Prasad Tiwari v. Shakur Tiwari, Manu /U.P. /0282/1964 (2003) 5 SCC page 150, T, Lakshmi Pati and others v. T. Reddy and others and Girdhari Lal v. Ram Lal; SCC Online J & K 693 : AIR 2019 J & K Page 1.

5. Learned counsel for the petitioner submits that it is because the defendant-respondents started raising construction upon a joint land that the necessity arose to institute the suit for permanent injunction. He submits that the plaintiff would have instituted the suit for partition, but he instituted the suit for permanent injunction, instead to ward off an eminent danger of a part of land being appropriated by a co-sharer.

6. Per contra, it is argued by the learned counsel appearing for the contesting respondents that the petitioner having admitted the property to be the joint property, the suit for injunction simpliciter was not maintainable and the proper cause for the plaintiff was to institute suit for partition in which he would have claimed injunction also. It is submitted that no injunction can be granted against another co-sharer because possession of one is possession of all the co-sharers in equal measure and any injunction order if passed would amount to direct interference in the enjoyment of the property by the other co-sharers.

7. Learned counsel for the respondent has relied upon the judgement of this Court in the case of Virendra Kumar v. Additional District Judge, Kannauj and others; 2014 (3) Current Civil Cases, page 43, Full Bench of this Court in the case of Chhedi Lal v. Chhote Lal, AIR 1951 ALL 199 and a judgement of Madras High Court in the case of K.P.M. Aboobucker v. K. Kunhamoo and others; 1958 AIR Madras 287.

8. Before I proceed to deal with the rival submissions made by the respective parties, it is necessary to refer to certain basic facts pleaded in the plaint and in the written statement filed by the respondents. The suit property is relating to khasra/plot no. 112, in which the heirs except one Kripal from the branch of Kanhaiya Lal (the second son of Udai Singh) are impleaded as defendant first set and heirs from the branch of Natthu Singh (the first son of Udai Singh) and one Kripal son of Kanhaiya Lal have been impleaded as defendant second set. In the plaint case while seeking a decree of permanent prohibitory injunction, a pedigree is given of all the parties to the suit and the common ancestor being Uday Singh. The plaintiff-petitioner is also the son of Kanhaiya Lal.

9. The suit property is stated to ha