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2024 DIGILAW 1555 (AP)

G. Venkata Appala Raju v. G. Narimani

2024-11-19

RAVI NATH TILHARI

body2024
JUDGMENT :- Heard Sri M. Sree Rama Rao, learned Counsel for the petitioner and Sri S.V.S.R. Subramanyam, learned Counsel representing Mrs. A. Varalakshmi, learned Counsel for the respondent Nos.2 and 5. 2. The petitioner is the plaintiff in OS No.151 of 2018 on the file of Court of X Additional District Judge, Anakapalle. The respondent Nos.1 to 6 herein are the defendants in the said suit. 3. The suit was filed for partition of the plaint schedule property. The plaintiff claimed 1/5th share in the plaint schedule property. The case of the defendants inter alia was that the plaintiff had relinquished his claim by relinquishment deed dated 16.07.2015 in "B" Schedule property of that relinquishment deed. The plaintiff's case was that even after such relinquishment, when in the partition amongst the co-owners (excluding the plaintiff) the plaint schedule property in OS No.151 of 2018 fell to the share of the father of the plaintiff late Rama Rao, on his death of (Rama Rao) the plaintiff will have 1/5th share in the plaint schedule property. The defendants' further case was that the plaintiff did not have 1/5th share but 1/25th share in the plaint schedule property. 4. The 2nd defendant filed the counter and inter alia objected the grant of temporary injunction. It was submitted that the said schedule property was ancestral properties of the defendants and the plaintiff. The plaintiff, however, wide registered relinquishment deed dated 07.06.1985 relinquished his rights over the said properties. It was also pleaded that the said 2nd defendant allowed the plaintiff to stay in the ground floor of Item-II of the plaint schedule property on mercy ground, alongwith the 2nd respondent and that was only a license to stay and consequently the plaintiff could not seek any injunction against the 2nd defendant the real owner. 5. The respondent Nos.5 and 6 filed adoption memo adopting the counter of the 2nd defendant-respondent. 6. In the suit the plaintiff-petitioner filed IA No.597 of 2018 for grant of temporary injunction to restrain the defendants from dispossessing the plaintiff from ground floor of Item No.II of the plaint schedule property, pending disposal of the suit or until further orders of the Trial Court. 7. The learned Trial Court rejected the application by Order dated 08.07.2019. 8. In the suit the plaintiff-petitioner filed IA No.597 of 2018 for grant of temporary injunction to restrain the defendants from dispossessing the plaintiff from ground floor of Item No.II of the plaint schedule property, pending disposal of the suit or until further orders of the Trial Court. 7. The learned Trial Court rejected the application by Order dated 08.07.2019. 8. The appeal of the plaintiff-petitioner, CMA No.3 of 2019, has also been dismissed by the learned X Additional District Judge, Anakapalle vide judgment dated 12.04.2024. 9. Challenging the aforesaid orders, the present civil revision petition is filed under Article 227 of the Constitution of India. 10. Learned Counsel for the petitioner submits that the rejection, by the learned Courts below, is on the ground that the temporary injunction cannot be granted against the co-owner, unless the co-owner is causing damage or mis-appropriation of the property. He submits that once the Trial Court was satisfied that (i) the property belonged to late Rama Rao, on which there was no dispute and (ii) that even as per the case of the defendant-respondent, the plaintiff-petitioner was entitled to some share in the suit schedule property, the case for grant of temporary injunction was made out, to restrain the defendants from dispossessing the plaintiff/petitioner from the plaint schedule property. He places reliance in J. Rajendran Pillai v. B. Bhasi and others, OP (C) No.2487 of 2019 of the High Court of Kerala. 11. Learned Counsel for the respondents submits that in view of the relinquishment deed of the year 1985, the plaintiff cannot maintain the suit for partition with respect to the plaint schedule property. Once the plaintiff had relinquished the plaint schedule property during the life time of late Rama Rao, the plaintiff is not entitled for partition or for any injunction. 12. Learned Counsel for the respondent however, does not dispute that in the written statement the defendant respondent has set up the case that the plaintiffs are entitled, atleast to 1/25th share in the plaint schedule property. He also places reliance on the same judgment J. Rajendran Pillai's case (supra), (Para 15). 13. I have considered the aforesaid submissions of the learned Counsels for the parties and perused the material on record. 14. He also places reliance on the same judgment J. Rajendran Pillai's case (supra), (Para 15). 13. I have considered the aforesaid submissions of the learned Counsels for the parties and perused the material on record. 14. The undisputed facts are that the plaint schedule property belonged to Rama Rao, the father of the plaintiff and defendants 2 to 4 and the husband of the defendant No.1. The defendant/respondent Nos.5 and 6 are the sons of the 2nd defendant-respondent. The Trial Court has also recorded that, the plaintiff and the defendants are the co-owners of the suit schedule property. The rejection is on the ground that the injunction cannot be granted against the co-owner, unless the other co-owners establish that the act of the co-owner is causing damage to the property. The Appellate Court has also dismissed the appeal, though holding that all the documents establish prima facie case, but observing that the plaintiff-appellant could not establish causing of damage to the suit schedule property. In the absence of such a plea and act, temporary injunction was rightly refused. 15. This Court is of the considered view that if a co-owner interferes with the possession of the other co-owner so as to deprive him of user, or/and tried to dispossess, an injunction can be granted. Here, the prayer of the plaintiff-petitioner was to restrain the defendants from dispossessing the plaintiff petitioner from the plaint schedule property. At this stage, though, this Court is not expressing any final view, as the trial is pending, considering the nature of the property stated, the share of the plaintiffs admitted, may be to different extent, as claimed by the plaintiff-petitioner, as also the findings recorded by the Trial Court, this Court is of the view that the plaintiff made out a prima facie for grant of an injunction. The plaintiffs case was being in possession of the ground floor of Item No.2 of the plaint schedule property. It is well settled in law that the co-owner has a right not to be dispossessed by other co-owner, and not to be interfered in the exercise of right to enjoy the property. Consequently, the dispossession of the plaintiff, if affected, would have caused irreparable injury. The balance of conveyance also lies in his favour, in the facts and circumstances of the case as aforesaid. 16. Consequently, the dispossession of the plaintiff, if affected, would have caused irreparable injury. The balance of conveyance also lies in his favour, in the facts and circumstances of the case as aforesaid. 16. The proposition that an injunction cannot be granted against the co-owner is not an absolute proposition of law. In certain circumstances a co-owner is also entitled for grant of injunction against the co-owner. In Tanusree Basu and others v. Ishani Prasad Basu and others, (2008) 4 SCC 791 , the Hon'ble Apex Court observed and held that there cannot be any doubt or dispute as a general proposition of law that possession of one co-owner would be treated to be possession of all. This, however, would not mean that, as in that case, where three flats have been allotted jointly to the parties, each one of them could not be in occupation of one co-owner separately. The Hon'ble Apex Court observed that it is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. If a party takes re-course to any contrivance to dispossess another, during pendency of the suit either in violation of the order of injunction or otherwise, the Court indisputably will have jurisdiction to restore the parties back to the same position. Therefore, it follows clearly that not only the injunction can be granted to restrain the co-owner to dispossess the other co-owner, but even if such dispossession takes place either in violation of the order of injunction or otherwise, the physical possession can also be restored. 17. In Tanusree Basu's case (supra), the Hon'ble Apex Court referred the case of Israil and others v. Samset Rahman and others, AIR 1914 Cal. 362, in which it was held that a co-owner being in exclusive possession of a joint property would be entitled to injunction. 18. The Hon'ble Apex Court in Tanusree Basu's case (supra), held as under in Paras 17, 18, 23 and 24 : "17. Strong reliance has been placed by Mr. Banerjee on a judgment of Bombay High Court in Bhaguji Bayaji Pokale and others v. Kantilal Baban Gunjawate and others, 1998 (3) CCC 377 (Bom.), wherein it was held : "7. 18. The Hon'ble Apex Court in Tanusree Basu's case (supra), held as under in Paras 17, 18, 23 and 24 : "17. Strong reliance has been placed by Mr. Banerjee on a judgment of Bombay High Court in Bhaguji Bayaji Pokale and others v. Kantilal Baban Gunjawate and others, 1998 (3) CCC 377 (Bom.), wherein it was held : "7. With regard to second substantial question of law, i.e., the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned Counsel for the appellants had relied upon the Apex Court's judgment reported in Mohammad Baqar and others v. Naim-un-Nisa Bibi and others. The Apex Court has very categorically held in Para No.7 as under : "The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period." It was observed : "10........Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well settled law." 18. We are concerned in this case with a question whether if a co-owner was in specific possession of the joint property, he could be dispossessed there from without the intervention of the Court. In this case, the first respondent is not claiming title of adverse possession. The said decision has, therefore, no application to the fact of the present case. 23. It is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. If a party takes recourse to any contrivance to dispossess another, during pendency of the suit either in violation of the order of injunction or otherwise, the Court indisputably will have jurisdiction to restore the parties back to the same position. 24. In Israil and others v. Samset Rahman and others, AIR 1914 Cal. 362, it was held that a co-owner being in exclusive possession of a joint property would be entitled to injunction. If a person is entitled to a prohibitory injunction, a' fortiori he shall also be entitled to a mandatory injunction." 19. 24. In Israil and others v. Samset Rahman and others, AIR 1914 Cal. 362, it was held that a co-owner being in exclusive possession of a joint property would be entitled to injunction. If a person is entitled to a prohibitory injunction, a' fortiori he shall also be entitled to a mandatory injunction." 19. In J. Rajendran Pillai's case (supra), upon which the learned Counsel for both the parties placed reliance, the High Court of Kerala at Ernakulam, held as under in Paragraphs 19 and 20 as under: "19. Before that I would like to enlist the incidence of co-ownership, rights and liabilities of co-ownership and ouster. (1) A co-owner has right and interest in the whole property and also in every parcel and infinitesimal portion of the co-ownership property. (2) No doubt 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) One co-owner's mere occupation of a larger portion or even the entire joint property does not necessarily amount to ouster another co-owner/co-owners as the possession of one is deemed to be on behalf of all. (4) An exception to clause (3) above is; the principle of ouster. 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 and the plea of ouster is a very weak contention. (5) Mere passage of time does not extinguish the right of one co-owner, who has been out of possession of the joint property, except in the event of ouster or abandonment, which is a very weak claim and the proof for the said claim is superlative. (6) Every co-owner has a right to use the joint property in a manner which shall not be inconsistent with similar rights of other co-owners in any contingency. (7) 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. (7) 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. (8) 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 use by one co-owner; if he does so, 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.' 20. Back on the questions raised, to sum up, I am to hold that there is no rigid or an un-wavarable tenet that no injunction can be granted against one co-owner at the instance of other co-owner. In the following instances, one co-owner can maintain a suit for injunction to protect his co-ownership right. (i) If one co-owner prevents the other from enjoying the common property, the affected co-owner can certainly approach the Court for appropriate relief including prohibitory injunction to protect his co-ownership right so that one co-owner can enjoy his right over the common property without hindrance to the other co-owner/co-owners. (ii) one co-owner out of the many has no right to build on which is joint property, without the consent of others, notwithstanding that, the erection of such building may cause no direct loss to other joint owners or its stature can be termed as 'improvement', since on separation of sharers, one co-owner's right to enjoy his share shall not be hassled by such building. (iii) a co-owner cannot be permitted to erect building in the common property without the consent of other co-owners, since one co-owner on separation of his share has every right to enjoy his property even as barren land for having gentle breeze or otherwise without a building therein. (iv) one 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. (v) before an injunction can be issued, the plaintiff has to establish that he would sustain, by the act he complains, which materially would affect his position as co-owner or his enjoyment or accustomed user of the joint property would be inconvenienced or interfered with by the said act of another co-owner. (v) before an injunction can be issued, the plaintiff has to establish that he would sustain, by the act he complains, which materially would affect his position as co-owner or his enjoyment or accustomed user of the joint property would be inconvenienced or interfered with by the said act of another co-owner. (vi) What relief to be granted in such suits shall be decided by the Court having jurisdiction guided by consideration of justice, equity and good conscience, after appraisal of the attending circumstances, the nature of injury caused and on weighing the balance of convenience. (vii) If one co-owner feels or apprehends obstruction in the matter of enjoyment of his co-ownership right, he can very well institute a suit restraining the other co-owner from obstructing the enjoyment within the sphere of co-ownership right, without disturbing the similar right of the other co-owner/co-owners, even without opting for partition." 20. In J. Rajendran Pillai's case (supra), it has inter alia been held, clearly, that if one co-owner prevents the other from enjoying the common property, the affected co-owner can certainly approach the Court for appropriate relief including prohibitory injunction to protect his co-ownership right so that one co-owner can enjoy his right over the common property without hindrance to the other co-owner/co-owners. It has further been held that if one co-owner feels or apprehends obstructions in the matter of enjoyment of his co-ownership right, he can very well institute a suit restraining the other co-owner from obstructing the similar right of the other co-owner/co-owners. 21. In J. Rajendran Pillai's case (supra), the judgment in Sivakumar v. G. Chandrasekharan another, AIR 2019 NOC 446, of Madras High Court was also referred in Paragraph 15 which is as under: "15. Another decision of the Madras High Court in Sivakumar v. G. Chandrasekharan and another reported in 2019 KHC 4009 = AIR 2019 NOC 446, the learned Single Judge of the Madras High Court observed in Para 14 as under : "14. xxxx xxxx xxxx The contention of the appellant is that the co-owner cannot file a suit against another co-owner for the prayer of injunction. On co-owner cannot prevent the other from enjoying the common property. If one co-owner prevents the other from enjoying the common property the affected co-owner can certainly approach the Court for a relief. xxxx xxxx xxxx The contention of the appellant is that the co-owner cannot file a suit against another co-owner for the prayer of injunction. On co-owner cannot prevent the other from enjoying the common property. If one co-owner prevents the other from enjoying the common property the affected co-owner can certainly approach the Court for a relief. A co-owner can enjoy his right over a common property without hindrance to the other co-owner. The plaintiff has not approached the Court to prevent the right of a co-owner but has approached the Court to retain his right. xxxx xxxx xxxx" 22. The petitioner filed appeal under Order 43 Rule 1 CPC. The Appellate Court also committed the error of law in dismissing the appeal. This Court say so because the scope of appeal against the grant or non-grant of interim injunction is that the Appellate Court will not interfere with the exercise of discretion of the Court of the first instance and substitute its own discretion, but where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions, it is the duty of the Appellate Court to interfere with such order to do complete justice. The Appellate Court while deciding the appeal against the discretionary order refusing to grant interim injunction, has to see whether the discretion had been property exercised on the settled principles of law by the learned Trial Court or contrary to the settled principles of law. 23. The rejection of the application for temporary injunction is not justified, the exercise being contrary to the settled principles of law. 24. In Wander Ltd. v. Antox India P. Ltd., 1990 Supp. 727, the Hon'ble Apex Court has held as under, on the aforesaid point in Para 14 : "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion. After referring to these principles Gajendragadkar, J., in Printers (Mysore) Private Ltd. v. Pothan Joseph : ... These principles are well established, but as has been observed by Viscount Simon in Charles Osention and Co. v. Johnston, the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an in dividual case. The appellate judgment does not seem to defer to this principle." 25. The Appellate Court fell to the same error that an injunction cannot be granted against the co-owner. The exercise of the discretion in rejection of the application by the Trial Court was contrary to the settled law, on the point of grant of injunction in favour of the co-owner against the other co-owner. The case for interference was made out by the Appellate Court, but the Appellate Court failed to discharge its duty, judiciously. 26. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , on the exercise of power under Article 227 of the Constitution of India, the Hon'ble Apex Court observed and held as under : "49. 26. In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, (2010) 8 SCC 329 , on the exercise of power under Article 227 of the Constitution of India, the Hon'ble Apex Court observed and held as under : "49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of the High Court's jurisdiction under Article 227 of the Constitution may be formulated : (a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different. (b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on the High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above. (c) The High Courts cannot, on the drop of a hat, in exercise of its power of Superintendence under Article 227 of the Constitution, interfere with the orders of Tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or Tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (d) The parameters of interference by the High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra), have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court. (e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of Superintendence can interfere in order only to keep the Tribunals and Courts subordinate to it, 'within the bounds of their authority'. (f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (f) In order to ensure that law is followed by such Tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), the High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of Tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. (h) In exercise of its power of Superintendence the High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the Tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. (i) The High Court's power of Superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar v. Union of India and others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful. (j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of the High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227. (k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu. (l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. (m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to High Court. (n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above. (o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality." 27. The case for exercise of power under Article 227 of the Constitution of India is made out. The impugned orders deserve to be set aside. 28. The civil revision petition is allowed. 29. The parties shall maintain status quo with respect to Item-II of the plaint schedule property till the final disposal of the suit. 30. The suit is of the year 2018. The learned Trial Court shall make endeavour to expeditiously decide the suit without granting unnecessary adjournments. 31. No order as to costs. 32. Consequently, the miscellaneous petitions, if any, pending shall stand closed.