A co-owner cannot seek injunction against another co-owner absent ouster; possession of one co-owner is possession of all.

1. Final hearing of this second appeal has been taken - up through video conferencing.

2. The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the appellants / defendants are as under: -
"1. Whether the first appellate Court was justified in holding that defendant Nos.1 to 4 had executed a gift deed with regard to the suit property in favour of the plaintiff, by recording a finding which is perverse and contrary to the record ?
2. Whether the first appellate Court was justified in holding that plaintiff is in possession of the suit property and thereby, granting decree for permanent injunction in his favour ?"
[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

3. The dispute relates to the property left by Parau and his wife Sumrit Bai. They had four daughters namely Samundra Kunwar (defendant No.1 is her son), Badki Kani (defendant No.2), Majhali Kani (defendant No.3) and Chotkikani alias Nanki Kani (defendant No.4) and plaintiff Radheshyam is son of Chotkikani alias Nankikani. Plaintiff Radheshyam filed a suit for permanent injunction and in alternative, restoration of possession pleading inter alia that the suit property was originally held by Parau and he was in possession of the suit property during his life time. Parau and his wife Sumrit both have died and the plaintiff and the defendants became title holders of the suit property. It was further pleaded that he is son of Majhalikani and defendant Nos.2 to 4 have surrendered their share in the suit land at the time of marriage vide Exs.P3 to P5 and since 1990, the plaintiff is in cultivating possession of the suit land and he has perfected his title by way of adverse possession. Since the defendants got their names mutated in revenue records, necessity has arisen to file a suit for permanent injunction and in alternative, recovery for possession of the suit land.

4. Resisting the suit, defendant Nos.1 to 3 filed their joint written statement stating inter alia that they have never surrendered their share by way of gift deeds (Exs.P3 to P5) in favour of the plaintiff and they are in possession of the suit property jointly and as such, the suit deserves to be dismissed.

5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 7.4.2007, dismissed the suit holding that alleged gift deeds (Exs.P3 to P5) are inadmissible in evidence for want of registration, therefore, no title has been conveyed in favour of the plaintiff and the plaintiff is not in exclusive possession of the suit land, therefore, he is not entitled for permanent injunction. On appeal being preferred by the plaintiff, the first appellate Court allowed the appeal and held that though gift deeds (Exs.P3 to P5) are inadmissible in evidence but it can be looked into for collateral purpose and the plaintiff is owner of part of the suit land, therefore till the partition is effected, the plaintiff cannot be dispossessed from the suit land without following the due procedure of law and accordingly, granted decree for permanent injunction in favour of the plaintiff restraining the defendants from interfering with his possession. Being aggrieved and dissatisfied with the judgment and decree of the first appellate Court, this second appeal under S.100 of the CPC has been filed by the appellants / defendants, in which substantial questions of law have been formulated, which have been set - out in the opening paragraph of this judgment for sake of completeness.

6. Mrs. Renu Kochar, learned counsel for the appel