J U D G M E N T

Order in I.A.No.1771 of 2016 in O.S.No.274 of 2016 dated

25.06.2018 which was confirmed in CMA.No.40/2018 of the III Additional District Judge, Kollam, as per judgment dated 10.04.2019, is under challenge in this Original Petition filed under Article 227 of the Constitution of India.

2. The petitioner herein is the 7th defendant in the above Suit. Original plaintiff and defendants 1 to 6 are the respondents herein.

3. Heard the learned counsel for the petitioner and the learned counsel representing the learned counsel for the 1st respondent.

4. For easy reference, I would like to refer the parties in this Original Petition as to their status before the trial court.

5. The plaintiff filed Suit for permanent prohibitory injunction against the defendants. Along with the Original Suit, I.A.No.1771/2016 also was filed seeking temporary injunction restraining the respondents from proceeding with construction in the plaint schedule property and from inducting strangers till the disposal of the Suit.

6. The contention raised by the plaintiff before the trial court is that the plaint schedule property having an extent of 21 cents, originally belonged to one Anantharaman and on his demise, one of his sons, Sri Velu, obtained 1/8 share in the property. Velu died and his legal-heirs sold 1/8 share of Velu in favour of plaintiff as per sale deed and therefore the plaintiff is having right over 1/8 share. It has been specifically contended that O.S.No.79/1989 was filed for partition and preliminary decree was passed allowing partition and final decree proceedings are going on. At this juncture, the defendants started construction in the entire extent of property inclusive of the share entitled by the plaintiff.

7. The 7th defendant alone contested the matter before the court below admitting his 1/8 share out of 21 cents. According to the 7th defendant/the petitioner herein, the defendants started construction in the plaint schedule property and therefore they could continue the same and the interim injunction sought for cannot be granted. As per Ext.P8 order, the learned Munsiff allowed the interim injunction application and thereby the respondents are restrained from further proceeding with the construction in the plaint schedule property and from inducting strangers till the disposal of the suit.

8. Though Ext.P8 order was challenged before the District Court, Kollam as CMA.40/2018, the appellate court also confirmed Ext.P8 order.

9. The concurrent finding entered into by the trial court as well as the appellate court is under challenge in this petition filed under Article 227 of the Constitution of India.

10. While assailing the concurrent finding, it is argued by the learned counsel for the petitioner/7th defendant that no injunction can be granted against one co-owner in a Suit filed by another co-owner. In this connection, the learned counsel placed decision reported in [2020 (1) KHC 790], Omana Amma & anr. v. Thankamony Amma & Ors. Reading the above decision, a learned Single Judge of this Court considered the principle lis pendens under Section 52 of the Transfer of Property Act, 1882 and it was held that when a Suit is laid for partition over certain properties, principles of lis pendens would come into operation and any subsequent transaction by any other parties would be of no consequence and would not affect the right of the others. In fact, the facts of the case dealt with therein is alienation of share by one of the co-owners. Another decision of the Honourable Supreme Court reported in [2010 KHC 4974], Ashok Kumar T.G. v. Govindammal & anr. also has been placed. In the above said decision, while dealing with principles of lis pendens under Section 52 of the Transfer of Property Act, the Apex Court held that the title of the pendente lite transfer is only in regard to a part of that transferred property and in regard to the remaining portion of the transferred property, the transfer is invalid and the transferor would n