Injunctions against co-owners are impermissible without clear evidence of one party's superior claim to exclusive possession.

Dated, this the 28th October, 2023 The respondent in C.M.A.No.118/2021 of the Additional District Court-III, Palakkad is the petitioner herein. The petitioner is aggrieved by Ext.P8 order passed by the learned District Judge in the said C.M.A, which restrains him from trespassing into the plaint schedule property, from altering the lie and nature of the property and also from committing any act of waste therein.

2. Heard the learned counsel for the petitioner and the learned counsel for the respondent.

3. Petitioner herein is the defendant in the Original Suit. The suit was preferred by the respondent seeking an injunction simplicitor. A Will was propounded in support of the title claimed by the plaintiff. The defendant claimed right of the property in his capacity as a co-owner pursuant to the death of the mother. The plaintiff and defendants are brothers, who remains unmarried. An ad-interim order of injunction sought for by the plaintiff was refused by the learned Munsiff, against which the subject C.M.A was preferred by the plaintiff. The learned District Judge correctly found that the validity of the Will is a matter to be decided based on evidence after trial and even if the Will is not considered for the time being, the plaintiff will be a co-owner. However, if the plaintiff is a co-owner, per force, the defendant is also a co-owner, wherefore injunction granted against a co-owner cannot be sustained, is the sum and substance of the submission made by the learned counsel for the petitioner.

4. This contention was opposed by the learned counsel for the respondent. It was pointed out that the Will now propounded is the third one, executed by the mother bequeathing the subject property in favour of the plaintiff, wherefore the defendant has no right, whatsoever, in the same. Although the learned counsel submitted about the previous litigation between the parties after the death of the mother, the same is not strictly germane for consideration, having regard to the scope of the present proceedings.

5. This court finds force in the submission made by the learned counsel for the petitioner that a co-owner cannot be injuncted from entering into a property, of which both have equal rights, sans the Will which is propounded by the plaintiff. As rightly found by the court below, the validity of a Will is a matter to be considered after trial based on evidence. It will be a safe proposition to treat the parties as co-owners for the time being, for the purpose of the interim injunction sought for. That being so, that part of the order in C.M.A vide clause (3), which restrains the petitioner herein from “trespassing into the plaint schedule property”, which may also prevent his entry into the same can hardly be sustained. The rest of the injunction restraining the petitioner herein from altering the lie and nature of the property, as also, from committing any act of waste therein is perfectly in order, for, the status quo with respect to the property has to be maintained.

6. In the circumstances, the direction in clause no.(3) in the relief portion of the order in C.M.A (Ext.P8) restraining the petitioner herein from trespassing into the scheduled property is done away with. However, it is also directed that the petitioner shall not indulge in any activity, which may affect the peaceful residence of the plaintiff in the plaint schedule property, simultaneous with recognising the petitioner's right to enter into the property for all reasonable purposes.

Sd/-

C.JAYACHANDRAN, JUDGE ww APPENDIX OF OP(C) 1553/2023 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ALLEGED WILL EXECUTED BY THRESSIAMMA THOMAS, DATED 28-4-2016.

EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S.NO.150 OF

2021 ON THE FILE OF THE MUNSIFF'S COURT, ALATHUR, DATED 7-6-2021.

EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.150 OF 2021 ON THE FILE OF THE MUNSIFF'S COURT, ALATHUR, DATED 16-09-

2021.

EXHIBIT P4 TRUE COPY OF I.A.NO.1 OF 2021 IN O.S.NO.150 OF 2021 ON THE