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2003 DIGILAW 1392 (RAJ)

Magni Ram v. Banshi Lal

2003-10-13

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. The following substantial question of law is involved in this appeal: (i) Whether both the courts below have committed illegality in passing the decree in a suit for prohibitory injunction in a manner resulting into division of alleged joint property without there being any suit for partition? Admit. No need to issue notice. 2. At the request of learned counsel for the parties the appeal is heard finally. 3. Perused the reasons given by the trial court in the judgment dated 25th Nov., 1992 and the reasons given by appellate court in the judgment dated 15th Dec.. 1995 and the record of the case. 4. Brief facts of the case are that the plaintiff filed the suit for permanent injunction against his brother on 16.1.1987 alleging that the suit house is joint house of the plaintiff and defendant, there Is one open Chowk lying in the western side of the house and that was lying open for the use of the plaintiff and defendant, the defendant started to construct a wall in the Chowk for which he had no right. Therefore, plaintiff-respondent filed the suit for injunction seeking a relief that the appellant-defendant be restrained from raising any construction in the Chowk marked as ABCD and be further restrained from interfering in the peaceful enjoyment of Chowk by the plaintiff also. The plaintiff submitted a sketch map of the property in dispute. 5. The defendant submitted written statement and admitted that plaintiff and defendant both are the real brothers. It is also admitted that the plaintiff and defendant have three more brothers Bheru Lal, Madhu Lal and Sandhu Lal. It is said that the property was partitioned among five brothers and the suit property was partitioned among the plaintiff and defendant. It is also to submitted that the plaintiff and defendant have got their own houses and open land. The defendant submitted that the Chowk in dispute is not the joint Chowk, but is in the share of the defendant. The defendant also submitted sketch map of the property. 6. The trial court framed the issues and the trial court after hearing the parties held that the suit property, particularly, the Chowk in dispute is the joint property and no one has right to raise any construction over the joint property Chowk without consent of the other co-sharer. The defendant also submitted sketch map of the property. 6. The trial court framed the issues and the trial court after hearing the parties held that the suit property, particularly, the Chowk in dispute is the joint property and no one has right to raise any construction over the joint property Chowk without consent of the other co-sharer. However, while doing so, the trial court passed the decree that north half portion of the Chowk will be used by the plaintiff whereas southern half portion of the Chowk will be used by the defendant. The decree of the trial court dated 25.11.1992 was challenged by the appellant by filing appeal. The appellate court dismissed the appeal by judgment and decree dated 15.12.1999. 7. Learned counsel for the appellant vehemently submitted that in a suit for mere injunction, the trial court has passed the partition decree depriving es the defendant, who was found to be co-sharer of the property in dispute, from using the part of the joint family property and virtually partitioned the property. It is also submitted that in a suit for partition a decree for partition can be passed after giving opportunity of hearing to the parties, who are having share in the property and during the course of that proceeding only the demarcation of the property can be made, that too, only after affording opportunity of hearing to the parties on the point how property can be partitioned. Here in this case, the trial court straightway without getting opinion of any expert as required for passing decree for partition by metes and bounds, passed the decree and if this decree remains as it is, the appellant will be deprived of half of the joint property and the respondent will be deprived of half of the property without determination whether two half on equal or not. 8. Learned counsel for the respondent vehemently submitted that that part of the decree if set aside still the decree for injunction cannot be set aside. It is also submitted that for modification of the decree, the matter may be remanded to the first appellate court or to the trial court. 9. 8. Learned counsel for the respondent vehemently submitted that that part of the decree if set aside still the decree for injunction cannot be set aside. It is also submitted that for modification of the decree, the matter may be remanded to the first appellate court or to the trial court. 9. In view of the fact that admittedly, the suit was filed only for injunction so that both the parties may enjoy the property in dispute as it exists without raising construction by any of the parties without the consent as of other co-sharer and for seeking relief of injunction against deprivation of enjoyment of part of the property by other party. The trial court as well as the appellate court found that the Chowk in dispute is joint property then the courts below were right in holding that both the parties have right to enjoy the property and the defendant has no right to raise construction over the so joint property without the consent of the other party as in view of the proposed construction, one of the party, namely, plaintiff will be deprived of the benefit of enjoyment of the part of the property. The courts below. therefore, were fully justified in permitting both the parties to enjoy the property. 10. There is force in the submission of learned counsel for the appellant that the decree resulted into partition of the property, that too, without determination. Even basic fact that if the said division will remain as it is then whether both the parties will get the exact half of the share of the property or has not been determined nor it could have been determined. There is also force in the submission of learned counsel for the appellant that for division to of immovable property by metes and bounds, the reasonable opportunity is required to be given to the parties so that they may demonstrate the exact measurement for which they are entitled. The decree passed by the courts below is illegal and that too, contrary to the relief claimed by the plaintiff as instead of permitting plaintiff and defendant to enjoy every inch of joint is property, the courts below restrained both the parties from enjoying the part of the joint property 11. The decree passed by the courts below is illegal and that too, contrary to the relief claimed by the plaintiff as instead of permitting plaintiff and defendant to enjoy every inch of joint is property, the courts below restrained both the parties from enjoying the part of the joint property 11. In view of the above and in view of the fact that there cannot be serious opposition to the ground submitted by learned counsel for the appellant, this second appeal deserves to be allowed and the part of the judgment and decree passed by the trial court upheld by the appellate court deserves to be set aside. 12. Therefore, the appeal of the appellant is allowed and the part of the decree, by which the trial court held that the plaintiff will be entitled to use only northern side of the Chowk and defendant will be entitled to Southern side of the Chowk, that too, for particular purpose mentioned in the decree, is set aside. Rest of the decree is upheld. No order as to costs.Appeal Allowed - Decree to Extent of Division of Property Set Aside. *******