JUDGMENT :

Alok Mahra, J.

Present appeal has been preferred against the judgment and order dated 25.06.2025 passed by the learned Civil Judge (Senior Division), Nainital in Civil Suit No. 55 of 2023 “Deepa Shah and Others vs. Dr. Gangadhar Prasad Shah & Others”. By the said order, the learned trial court partly allowed the application for temporary injunction (Paper No. 52- Ga) filed by respondent nos. 1 to 3/plaintiffs in a partition suit and restrained the appellant, who is one of the four co-sharers of the suit property, from running and advertising car parking in the tennis court area situated to the south of Rituraj building (as described in Schedule ‘A’ of the plaint), without the prior permission of other co-sharers, and further restrained the appellant from creating third-party interests over the property during the pendency of the suit.

2. Brief facts necessary for adjudication of the appeal are that in the year 2003, respondent nos. 1 to 3/plaintiffs instituted a suit for partition and permanent injunction in the court of Civil Judge (Senior Division), Nainital against the appellants and other respondents (nos. 4 to 7). The said suit is still pending. During pendency, plaintiffs moved an application for temporary injunction to restrain the appellants from running a car parking in the tennis court area. The trial court, by the impugned order, granted injunction against the appellants. Hence, this appeal.

3. Learned counsel for the appellants would submit that the plaintiffs themselves admitted in their plaint that Late Smt. Basanti Devi Shah, wife of late Chandra Lal Shah, was the owner of Schedule ‘A’ property. By a Will, she bequeathed the same to her daughter Smt. Vidya Sah and her four sons, namely: (i) Krishna Lal Shah, (ii) Dr. Gangadhar Prasad Shah (respondent no.4 herein), (iii) Chandra Shekhar Shah (predecessor of respondents nos.1–3), and (iv) Mahesh Prasad Shah (husband/father of respondents nos.5–7). Mutation was accordingly done in Municipal Board records. The said four sons along with Smt. Vidya Sah also inherited Schedule ‘B’ property after the death of late Bhawani Das Shah. All four brothers thus became co-owners, each entitled to 1/4th share in Schedule ‘A’ and Schedule ‘B’ properties. Plaintiffs further admitted the subsequent deaths of the co- sharers (Vidya Sah in 1999, Krishna Lal in 2005, Mahesh Prasad in 2015, and Chandra Shekhar in 2020), whereas respondent no.4 is still alive. Thus, the appellants are entitled to 1/4^th undivided share in both Schedule ‘A’ and Schedule ‘B’ properties.

4. Learned counsel for the appellant would submit that despite such admission, plaintiffs/respondents with mala fide intention, in order to grab the tennis court area (6270 sq.ft.) where appellants are running a car parking for a considerable time, filed the temporary injunction application on frivolous grounds. The trial court, ignoring appellants’ objections and documents, wrongly allowed the injunction; that, respondents nos.1–3 are already in possession of the bulk of Schedule ‘A’ property, including the entire Rituraj Building consisting of 21 rooms and outhouses, except four rooms occupied by respondents nos.5–7. The plaintiffs fenced and enclosed the area in their occupation with iron gates without any partition, despite holding only ¼ share. Now, by seeking injunction, they want to deprive appellants of even the small portion used as car parking.

5. Learned counsel for the appellant would further submit that the car parking area (tennis court) is only 6217 sq.ft. out of 4 acres (1,74,240 sq.ft.) comprising Schedule ‘A’. With mutual consent of co-sharers, this portion was being used by appellants, who remain in possession. Plaintiffs, therefore, have no legal right to restrain appellants from its use. Learned Counsel further points out that plaintiffs/respondents nos.1–3 forcibly occupied major portions of Rituraj building and land, beyond their ¼ share; that, respondent no.4 (Dr. Gangadhar Prasad Shah) has cons