A co-owner out of possession may seek an injunction against a co-owner in possession if the acts of the latter, such as raising construction while simultaneously blocking partition proceedings, are detrimental to the interests of other co-owners.

VIRINDER AGGARWAL, J.

1. The present Regular Second Appeal (here-in-after referred to as ‘RSA’) has been preferred against the judgment and decree dated 26.02.1998 passed by the learned Additional District Judge, Sangrur, whereby the appeal filed by the appellants–defendants came to be dismissed.

2. Briefly stated, the respondent–plaintiff instituted a suit for mandatory injunction on the averment that the parties are co-owners in the suit land. It was pleaded that the plaintiff had moved an application seeking partition of the suit land; however, defendants No.1 and 2 instituted a civil suit and succeeded in obtaining a stay of the partition proceedings. It was further alleged that the defendants were threatening to raise construction over the joint land and had already raised construction up to a height of approximately 7–8 feet. According to the plaintiff, the defendants had no legal right to raise any construction over the joint property without the same being partitioned. Consequently, the suit was filed seeking a decree restraining the defendants from raising construction over the suit land without prior partition and for issuance of a mandatory injunction directing the defendants to demolish the construction already raised upon the joint land.

3. The defendants, in their joint written statement, contested the suit by asserting that they were in exclusive possession of the suit land as owners. It was further pleaded that an electric motor had been installed on the land about 10–12 years earlier and that they had also constructed a room and a manger for cattle. On this premise, it was contended that, being in exclusive possession, they were fully entitled to raise construction on the suit land.

4. The plaintiff filed replication controverting the assertions made in the written statement. Upon a careful and comprehensive examination of the pleadings, documents, and submissions of the parties, the learned Trial Court framed the following issues for adjudication so as to facilitate a proper and effective determination of the controversy between the parties:-

1. Whether the plaintiffs are entitled for injunction, as prayed for? OPP.

2. Whether the plaintiffs are entitled for mandatory injunction, as prayed for? OPP.

3. Whether the plaintiffs have no locus-standi to file the present suit? OPD.

4. Whether the instant suit is not maintainable in the present form? OPD.

5. Relief.

5. The parties were afforded adequate opportunities to adduce evidence in support of their respective claims. Upon appreciation of the evidence and after hearing the arguments advanced by learned counsel for the parties, the learned Additional Senior Sub-Judge, Sunam partly decreed the suit and restrained the defendants from raising any further construction over the suit land without first obtaining its partition or without the concurrence of the plaintiff.

5.1. The appeal preferred against the aforesaid judgment and decree came to be dismissed. Aggrieved by the concurrent findings and judgments rendered by the Courts below, the present appeal has been instituted.

6. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab and Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Referen