JUDGMENT : 1. This appeal was admitted to hearing on 21.08.2003 on the following substantial question of law:- “Whether a co-owner can seek an injunction, restraining the other co-owner from using a joint property or raising construction thereon without seeking relief of partition?” 2. I have heard learned counsel for the parties at length on the aforesaid question of law. Before I proceed to deal with the rival contentions, it would be appropriate to refer to the factual matrix in the context of which, this Civil Second Appeal has arisen. 3. The appellant herein was defendant in the trial Court. The respondent herein was the plaintiff who had filed the suit for permanent prohibitory injunction against the defendant, who is appellant herein. To avoid confusion, the parties are hereinafter referred to as “the plaintiff” and “the defendant”. The suit filed by the plaintiff against the defendant was for seeking a decree of permanent prohibitory injunction; with a further relief of mandatory injunction on the ground that the plaintiff and the defendant were joint owners in possession of the land measuring 4 kanals 10 marlas comprised in Khasra No.703 situated in village Dhanori, Tehsil Udhamapur in equal shares. The case set up by the plaintiff in the suit was that the parties without going for partition by metes and bounds had constructed their respective houses in two different portions of the aforesaid joint holding and that in between the houses of the parties, there exited a common passage. It was alleged that the defendant, who was raising the construction of his house had also raised the plinth over the common passage. The suit was resisted by the defendant on the ground that he had already completed the construction and was only to fix the doors and windows etc. and that he had raised the construction after dismantling the old structure of his house which was in his settled possession for the last several years. The defendant, however, admitted in the written statement that he had laid the plinth for Varandha but had not completed the construction. A specific plea was taken by the defendant that since the suit land was the joint property of the parties which had not been partitioned and therefore, the plaintiff was not entitled to claim any relief unless the suit land was partitioned by metes and bounds. A specific plea was taken by the defendant that since the suit land was the joint property of the parties which had not been partitioned and therefore, the plaintiff was not entitled to claim any relief unless the suit land was partitioned by metes and bounds. The maintainability of the suit on this score was challenged by the defendant. 4. On the basis of pleadings of the parties, four issues were framed by the trial Court. The issue No.1 which pertained to the maintainability of the suit was treated as a preliminary issue and the same was decided in favour of the plaintiff and against the defendant by the order of the trial Court dated 22.05.1998. The other issues were not held proved in favour of the plaintiff and, accordingly, the suit was dismissed. The trial Court found discrepancy in the oral evidence with regard to the extent of encroachment allegedly made by the defendant over the suit passage. The trial Court also found fault with the frame of suit on the ground that the plaintiff in his suit had not specifically indicated demarcation and dimension of the suit passage. On an appeal, the appellate Court reversed the judgment and decree passed by the trial Court and decreed the suit in favour of the plaintiff. The appellate Court reversed the judgment and decree of the trial Court primarily on the ground that the discrepancy in the oral evidence brought on record by the plaintiff was minor and inconsequential and the plaintiff had amply proved that their existed a common passage between the residential houses of the parties and the defendant had encroached a part of it by laying plinth for construction of his Varandha. The appellate Court also relied upon the statement of the defendant to come to the aforesaid conclusion. 5. Feeling aggrieved, the defendant has come up before this Court in this Civil Second Appeal. As noted above, this Court on consideration of the matter admitted this petition on the solitary question of law as reproduced hereinabove in the beginning of this Order. 6. 5. Feeling aggrieved, the defendant has come up before this Court in this Civil Second Appeal. As noted above, this Court on consideration of the matter admitted this petition on the solitary question of law as reproduced hereinabove in the beginning of this Order. 6. In the backdrop of aforesaid facts, learned counsel for the appellant submits that the appellate Court failed to appreciate that in the absence of proper identification and demarcation of the suit passage and the exact encroachment made thereon, the suit of the plaintiff could not have been decreed and even if decreed, the same would be incapable of being put to execution. He, therefore, urges that the learned appellate Court committed a serious error of law and facts in reversing the well-reasoned judgment of the trial Court. He further reiterates his arguments with regard to the maintainability of the suit. Learned counsel submits that the suit for permanent prohibitory injunction by one co-sharer against the other was not maintainable as the plaintiff had an equal efficacious remedy of filing the suit for partition. Elaborating his arguments, learned counsel for the defendant submits that the suit passage as per the plaintiff was jointly owned and possessed by the parties and not in the exclusive possession of the plaintiff and therefore, that being the position, the suit for injunction simpliciter was not maintainable unless the plaintiff would have prayed for partition of the joint property including the suit passage by metes and bounds. Learned counsel for the defendant places strong reliance upon the judgment of Punjab and Harayana High Court rendered in the case of Jaga Ram and others v. Amar Singh and others reported in 1998 AIHC 2717 and the judgment of Calcutta High Court rendered in the case of Sachindra Nath Sarkar and others v. Binapani Basi and others reported in AIR 1976 Cal. 277 . 7. Per contra, learned counsel for the respondent argues that since the appellant and the respondent were the joint owner in possession of the suit passage and therefore, the defendant was not entitled to encroach upon the passage which was not exclusively in his possession and was, therefore, liable to be restrained by a decree of permanent prohibitory injunction. He places reliance upon the judgment of Punjab and Harayana High Court passed in case of Sant Ram Nagina Ram v. Daya Ram Nagina Rai reported in AIR 1961 Pun. He places reliance upon the judgment of Punjab and Harayana High Court passed in case of Sant Ram Nagina Ram v. Daya Ram Nagina Rai reported in AIR 1961 Pun. 528 and judgment of this Court in the case Abhey Singh v. Gian Singh and others, reported in 1971 JKLR 326 and other judgment relied upon by the plaintiff is by the High Court of Rajasthan in the case of Chhagan Lal v. Kesar Lal and others. 8. To the plea of the appellant that the suit could not have been decreed by the appellate Court as the suit property was neither identified nor the alleged encroachment was specified, learned counsel appearing for the respondent submits that as rightly observed by the appellate Court, the contradictions pointed out by the trial Court were trivial and inconsequential. He submits that from the pleadings of the parties, it was amply on record that there existed a common passage between the respective houses of the plaintiff and the defendant and the plaintiff had sufficiently demonstrated by way of his own evidence as also by recording the statement of the concerned Patwari that the common passage had been encroached. He further urges that the aforesaid plea raised by the learned counsel for the plaintiff pertains to the disputed question of facts and do not give rise to any additional substantial question of law. He, therefore, submits that in these proceedings, this Court should confine itself to the determination of the substantial question of law framed at the time of admission of this appeal. 9. Considering the submissions made by the learned counsel appearing on both the sides, I am of the view that the question of law formulated is no longer res integra and therefore, strictly speaking, is not a substantial question of law for the purpose of admission of a Civil Second Appeal. 10. In the case of Sachindra Nath Sarkar (supra) relied upon by the defendant, rendered by the Calcutta High Court, issue has been very succinctly dealt with. The observations of the Calcutta High Court made in Paragraph No.18 of the judgment are noteworthy and are therefore, reproduced herein under:- “18. 10. In the case of Sachindra Nath Sarkar (supra) relied upon by the defendant, rendered by the Calcutta High Court, issue has been very succinctly dealt with. The observations of the Calcutta High Court made in Paragraph No.18 of the judgment are noteworthy and are therefore, reproduced herein under:- “18. Consistent with the decisions of this Court, the position in law is as follows:- (a) the co-owner is not entitled to an injunction restraining another co-owner from exceeding his rights in the common property, absolutely and simply because he is a co-owner. (b) before an injunction can be issued, the plaintiff has to establish that he would sustain, by the act he complains of some injury which materially would affect his position or his enjoyment or accustomed user of the joint property would be inconvenienced or interfered with. (c) the question as to what relief should be granted is left to the discretion of the Court in the attending circumstances on the balance of convenience and in exercise of its discretion the Court will be guided by consideration of justice, equity and good conscience.” 11. However, in the second judgment relied upon by the defendant rendered in the case of Jaga Ram and others (supra) the Punjab and Haryana High Court while dealing with the issue of maintainability of a suit for possession by a co-sharer against another co-sharer in Paragraph No.5 held thus:- “5. Keeping in view the ratio decidendi of the aforesaid authorities, I am of the view that the learned District judge was wrong in observing that the remedy of the appellants’ lay not in a suit by way of permanent injunction but in an action for partition. The rulings alluded to by him in support of his observations are clearly distinguishable and have no bearing on the present case which does not relate to a cultivable land and in which it is also established from the evidence lead by both the parties that the construction of the Chhun (cattle shed) on the banks of the pond near Devasthan would not only cause obstruction to a large number of co-sharers in performing puja and other rituals but would also pollute the water of the pond which is used for drinking and washing purposes.” 12. Similarly, in the case of Abhey Singh (supra) rendered by this Court, it has been clearly laid down that one co-sharer out of the many has no right to build on what is joint land without the consent of others notwithstanding that the erection of such building may cause no direct loss to other joint owners. Similarly, the High Court of Rajasthan in the case of Chhagan Lal (supra) alluded to the same question of law and held that in suit for injunction against the co-owner relating to the encroachment on joint property, there is no occasion for the plaintiff to show any special damage. It is sufficient for the plaintiff to demonstrate that all by an act and admission of defendant, he has been deprived of the user of the property as it stood originally. In the case of Sant Ram Nagina Ram (supra) the Division Bench of Punjab and Haryana High Court after elaborately discussing the issue in paragraph No.78 laid down nine propositions. It would not be inappropriate to reproduce what was held by the Punjab and Haryana High Court in Paragraph No.78 of the aforesaid judgment:- “78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions:– (1) A co-Owner has an interest in the whole property and also in every parcel of it. (2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to anyone to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.” 13. When the issue raised in this appeal is examined in the backdrop of the legal position adumbrated herein above, it is noticed that indisputably the suit property in the instant case is a common passage existing between the houses of the plaintiff and the defendant. It is not the case of the defendant that except for the land under their respective occupation in the shape of construction of the houses, the rest of the land is vacant and un-partitioned. Rather the defendant in his written statement and also in his statement recorded before the trial Court has admitted that there exists the common passage between the two houses belonging to the plaintiff and the defendant respectively. There is un-rebutted statement of the plaintiff and corroborated by the evidence of Patwari, who had visited the site in the presence of both the parties that the suit passage existing between the two houses has been encroached. There is un-rebutted statement of the plaintiff and corroborated by the evidence of Patwari, who had visited the site in the presence of both the parties that the suit passage existing between the two houses has been encroached. In that view of the matter, the contradiction with regard to the description and dimension of the suit property and exact extent of encroachment as noted by the trial Court is, in essence, trivial and inconsequential. Once it has been demonstredly proved that a common passage between the houses of the parties exists and that a part of it, is encroached by the defendant, the trial Court had no option but to decree the suit and to ensure that the defendant does not encroach upon the common passage and thereby caused hindrance in the ingress and egress of the plaintiff. It has not been proved by the defendant in the trial Court that he had laid the plinth for raising of construction of Varandha on a land which was exclusively in his possession. Had that being the case, perhaps, going by the principles laid down on the subject, suit by the plaintiff was not maintainable, without seeking partition of the joint property by metes and bounds. In such situation, where one of the co-sharers is found encroaching upon the property which is jointly owned and possessed by all the co-sharers, in my humble opinion and as held in the judgments referred to above, suit for injunction simpliciter is maintainable. There is no absolute law that a suit for injunction by one co-sharer against another co-sharer is not maintainable and the co-sharer approaching the Court should be relegated to the alternative efficacious remedy of seeking partition. Under certain set of circumstances as explained above, particularly, those enumerated in Paragraph No.78 of the judgment rendered in the case of Sant Ram Nagina Ram (supra) suit for injunction by the co-sharer(s) against another co-sharer (s) is maintainable. 14. In view of the foregoing reasons, I do not find any merit in this appeal. The appellate Court committed no illegality in reversing the judgment and decree of the trial Court. Accordingly, this appeal is dismissed along with connected MP(s).