B S Satyanarayana Vs Smt B a Dhanalakshmi

M/S. KNS INFRASTRUCTURE PVT LTD., A COMPANY INCORPORATED UNDER COMPANIES ACT. HAVING REGISTERED OFFICE AT: NO.1125/12, 1^ST FLOOR SERVICE ROAD HAMPI NAGAR, VIJAYANAGAR, BENGALURU – 560 040. REPRESENTED BY ITS MANAGING DIRECTOR MR.K.N.SURENDRA.

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M/S KNS OVERSEAS PVT LTD. A COMPANY INCORPORATED UNDER COMPANIES ACT. HAVING REGISTERED OFFICE AT: NO.1125/12, 1^ST FLOOR SERVICE ROAD, HAMPI NAGAR VIJAYANAGAR, BENGALURU – 560 040. REPRESENTED BY ITS MANAGING DIRECTOR MR.K.N.SURENDRA.

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SMT.B.S.HEMALATHA D/O LATE SHARADAMMA W/O DR.M.MUNIYAPPA AGED ABOUT 62 YEARS,

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DR.M.MUNIYAPPA S/O SRI. MUNICHANNAPPA AGED ABOUT 69 YEARS,

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SRI. KARTHIK MUNIYAPPA S/O DR.M.MUNIYAPPA AGED ABOUT 36 YEARS,

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THE RESPONDENT NO.4 TO 6 ARE RESIDING AT NO.136, 1^ST CROSS, NEAR SOWDAMI KALYANA MANTAPA, DOCTORS COLONY, KONANAKUNTE BENGALURU – 560 062.

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…RESPONDENTS

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(BY SRI. SRINIVASA RAGHAVAN U, SR. COUNSEL FOR SRI. NITIN RAMESH, ADVOCATE FOR R1 & R2 IN CP 7741/25; SRI. SURESH KUMAR.A.M, ADVOCATE FOR R5, R6 & R7)

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THIS MFA IS FILED UNDER ORDER XLIII RULE 1(r) OF THE CPC, AGAINST THE ORDER DT. 04.04.2025 PASSED ON IA NO. 1, 2 AND 5 IN O.S.NO.1824/2024 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL SESSION JUDGE, BENGALURU.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The appeal is filed by the appellants/defendant Nos. 6 to 9 questioning the order dated 04.04.2025 passed on I.A.Nos. I, II and V filed under Order XXXIX Rule 1 and 2 of CPC in O.S.No.1824/2024 by the XXXIX Additional City Civil and Sessions Judge (CCH-40), whereby the application filed for temporary injunction was allowed in part.

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For the sake of convenience, the parties in this appeal are referred to as they are arrayed in the suit.

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Brief facts of the case are that the plaintiffs have filed a suit for permanent prohibitory injunction against defendants No.1 and 2, their agents, henchmen, successors, General Power of Attorney holders, nominee/s and others on their behalf from trespassing on the suit schedule property and restraining all the defendants and their men from creating encumbrances of any nature in the suit schedule property.

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The plaintiffs have filed the suit with allegations

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that the suit schedule property is originally belonged to one late Sri.B.S Siddaramappa, who was the owner, executed a registered Will dated 22.07.1983 in favour of his daughter-in-law by name Smt. Sharadamma wife of S. Srinivas and bequeathed the said suit schedule property. Smt. Sharadamma by virtue of the Will got mutated her name in the revenue records in the year 1995. Smt. Sharadamma died intestate on 31.03.2020 leaving behind plaintiffs, defendant Nos. 3 and 6 as her legal heirs. The plaintiffs and defendants No. 3 to 9 executed an agreement of sale in respect of the suit schedule property in favour of defendants No. 1 and 2 viz., builders. The agreement of sale was terminated by the defendants No. 3 to 5 on 10.06.2020. At the time of registration of agreement of sale, defendants No.1 and 2 have changed versions and insisted that more clauses be added via an addendum. Taking advantage of the pressure of being at the Sub-registrar's office, defendants No.1 and

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2 coerced the plaintiffs and other signatories to execute the documents i.e., memorandum of understanding, addendum to sale agreement, registered General Power of Attorney on the same day.

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Thereafter, on 22.03.2021 a suit for partition in O.S.No.2021/2021 came to be instituted by defendant No.3. Further, on 07.07.2021, Smt. Nagarathna, daughter of Siddaramappa filed a suit for partition in O.S.No.3473/2021 at the behest of defendants No.1 and 2. Both the suits are pending for consideration before the trial Court.

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It is submitted that during the year 2022-23, the plaintiffs through their General Power of Attorney Holder have incurred financial burden of more than Rs.10 crores in clearing the suit schedule property of slum dwellers, rehabilitation of slum dwellers, clearing of encroachments etc., and the same has been admitted by defendants No. 3 to 5 in their reply notice dated

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25.10.2023. On 26.05.2023, defendant Nos. 6 and 9

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issued legal notice to defendant Nos. 1 and 2 and cancelled and terminated the agreement of sale, MOU, GPA, Addendum to sale agreement. The defendants No.1 and 2 issued a legal notice to the plaintiffs and other defendants on 21.09.2023. The defendants No. 3, 4 and 5 have also terminated the aforesaid agreement of sale and connected agreements through their reply notice issued to defendants No.1 and 2. The plaintiffs have also cancelled the aforesaid documents on 16.12.2023 including agreement of sale executed in favour of defendants No. 1 and 2. Defendant No.6 issued a rejoinder notice to the defendants No.1 and 2 on 19.12.2023, unjustifiably and illegally claiming ownership and possession of 50% of the schedule property. On 02.01.2024, the defendants No.1 and 2 have filed a suit for specific performance in O.S.No.10/2024 which is pending.

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The plaintiffs have filed a present suit for

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injunction in O.S.No.1824/2024 on 11.03.2024 against the

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defendants by mentioning the cause of action that there are various litigations viz., cancellation of agreement of sale, MOU, General Power of Attorney and also defendant No.3 has filed a suit for partition and defendants No.1 and 2 have filed a suit for specific performance and defendants No. 1 and 2 and defendants No. 6 to 9 filed a suit for injunction.

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The defendants No. 1 and 2 have entered appearance and filed their written statement denying the allegations made against them.

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The plaintiffs have filed I.A.Nos. I, II and V filed under Order XXXIX Rule 1 and 2 of CPC praying to grant an ad-interim order of temporary injunction to restrain the defendants from encumbering/alienating or creating any charge over the suit schedule property till disposal of the suit. The Trial Court after considering the applications found that there is probability that the appellants' land under problem and in view of the fact that the litigations are pending i.e., one is for suit for partition and other is

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for specific performance of contract and the defendants have tried to interfere with the peaceful possession of the suit schedule property and trespassed into the suit schedule property. Therefore, the trial Court passed an order directing the defendants to maintain status - quo in respect of the suit schedule property and not to create law and order problem situation on the given set of circumstances and not to precipitate the matter as there are other related cases pending adjudication, in the event of parties to lis failed to comply the order of this court, legal consequences shall follow with cost as condition precedent.

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Being aggrieved by the said order, the defendant Nos.6 to 9 have filed the present appeal by raising various grounds and learned counsel for the appellants/ defendants No. 6 to 9 argued in consonance with the grounds raised in the memorandum of appeal that one Sharadamma executed a Will bequeathing the property in favour of defendant No.6. Therefore, after the

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death of Sharadamma, defendant No.6 is entitled to 50% of share in the suit schedule property. The plaintiffs and defendants No. 3 and 5 are denying the share of the property to defendant No.6.

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It is further submitted that, defendant No.8 is the elder son of defendant No.6 and he became graduate. Hence, for his livelihood, he intended to put up office in the suit schedule land as defendants No. 6 to 9 also having right, title and interest over the 50% of the suit land. The plaintiffs have filed false and frivolous suit for injunction and submitted that an order of temporary injunction cannot be granted against the one co-owner and in terms of another co-owner. It is submitted that when defendant Nos. 6 to 9 are also co-owners and one co-owner cannot maintain a suit for permanent injunction and the order of temporary injunction ought not to have been granted. The trial Court on the contrary to the established principles of law has granted an order of temporary injunction against the co-owner. Therefore,

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prays to make interference with the order of Trial Court and permit the appellants/ defendants No. 6 to 9 to make pleading of the 50% of the share in the suit schedule property as admittedly defendants No.6 to 9 are the coowners of the land along with the plaintiffs and defendants No. 3 to 5. He places reliance on the judgment of Hon'ble Supreme Court in the case of Sant Ram Nagina Ram Vs.

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Daya Rum Nagina Ram¹ .

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On the other hand, learned counsel for the respondents/plaintiffs submitted that Smt. Sharadamma died intestate ON 31.03.2020 by leaving behind plaintiffs, defendants No. 3 and 6 as her legal heirs. The plaintiffs and the defendants No. 3 to 9 have executed an agreement of sale with respect to the suit schedule land in favour of defendants No. 1 and 2 viz., developers on 10.06.2020. The pleadings in the written statement that Defendants No. 6 and 9 have admitted that Sharadamma died intestate leaving behind the plaintiffs and defendants

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1 AIR 1961 PUNJAB 528

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No. 3 and 6 as her legal heirs. Hence, the plaintiffs and defendants No. 3 and 6 are having equal share of 1/3^rd is correct.

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It is submitted that the order of injunction to be granted against the co-owner that other co-owner where there is a threat of changing the nature of land and disturbing the rights of plaintiffs. Therefore, by placing reliance on the judgment of the Hon'ble Supreme Court and Punjab High Court submitted that the order of injunction is correct. Therefore, they justified the order passed by the trial Court. Further, it is submitted that defendant No.8 has brought big truck with the crane, JCB machine and some people for which complaint has been filed before the police and also charge sheet is filed against defendants No. 3 to 6. Therefore, all these factors prima facie found that the trial Court has granted an order of status quo which needs no interference. Therefore, prays to dismiss the appeal.

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Heard the arguments from both the sides and

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perused the materials furnished in the appeal.

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Upon various submissions and perusal of the materials on record, the following points arises for consideration in this Court are:

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(i) Whether, under the facts and circumstances of the case, the defendant No.9/ appellant demonstrates that the plaintiffs have not made out prima facie case so as not to grant an order of status quo?

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(ii) Whether, under the facts and circumstances of the case, the defendant Nos.6 to 9/appellants demonstrate that the plaintiffs have not made out balance of convenience so as not to grant an order of status quo?

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(iii) Whether, under the facts and circumstances of the case, the defendants demonstrate that the plaintiffs have not shown sustaining loss or injury in case an order of temporary injunction is not granted?

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(iv) Whether, the order passed by the trial Court on granting an order of status quo requires interference from this Court?

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As set out the facts in brief, the defendant Nos.6 to 9 have stated that Sharadamma executed a Will in favour of defendant No.6, but in the written statement of defendant Nos.6 to 9 have stated that Sharadamma died intestate. Therefore, how defendant Nos.6 to 9 are entitled 50% share is not shown by defendant Nos.6 to 9.

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Learned counsel for defendant Nos.6 to 9 submitted that as per the agreement of sale entered with defendant Nos.1 and 2 developers, the proportionate share of profit to be given is 30% to the plaintiffs, 21% to defendant No.3 and 49% to defendant No.6.

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Subsequently, the said agreement of sale and memorandum of understanding, registered GPA and Addendum to sale agreement have been terminated at the instance of the plaintiffs/defendant Nos.3 to 9. It is the submission made by the counsel for the plaintiffs that at

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the instance of defendant Nos.1 and 2, defendant Nos.6 to 9 are interfering and changing the nature of suit schedule property. To this counter, learned counsel for the appellants stated that he has also issued legal notice to defendant Nos.1 to 6 for termination of the above said agreement of sale, etc.

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Learned Senior Counsel has taken this Court through the materials furnished before the trial Court, copies of which are made available in this appeal also. It is the principle contention of the learned counsel for the appellants/defendant Nos.6 to 9 that an order of injunction cannot be granted against co-owner at the instance of other co-owners. Considering the submission, let me examine the principles governing grant of temporary injunction which are as follows:

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Reg: The principle of law of injunction:

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18.1 The Hon’ble Supreme Court in the case of Ramakant Ambalal Choksi (Stated supra) held at

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paragraph Nos.22, 23, 24, 25, 26, 27, 28, 29, 32, 35, 36

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and 37 as under:

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“22. With regards to (a), this Court held thus:

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In such appeals, the appellate court will not interfere with the exercise of discretion of the court of the 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 …. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below … 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.

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This Court, while arriving at the above findings, relied on its earlier judgment in Printers (Mysore) v. Pothan Joseph reported in (1960) SCC Online SC 62 where it was held thus:

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“[…] as has been observed by Viscount Simon LC in Charles Osenton & Co v. Johnston – the law as to reversal by a court of appeal of an order made by a judge below in the exercise of his/her discretion is well established, and any difficulty that arises is due only to the application of wellsettled principles in an individual case.”

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It is pertinent to note that is Printers (supra) this Court had held that ignoring relevant facts is also a ground for interfering with the discretion exercised by the trial court. Furthermore, Viscount Simon LC in Charles Osenton & Co v. Johnson reported in 1942 S.C. 130, after stating the above, went on to quote Lord Wright’s decision in Evans v. Bartlam reported in 1937 A.C. 473:

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“It is clear that the court of appeal should not interfere with the discretion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdiction and had all the facts before him, the court of appeal cannot review his order unless he is shown to have applied a wrong principle. The court must, if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order.”

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In Evans (supra) case, Lord Wright made it clear that while adjudicating upon the discretion exercised by the trial court, the appellate court is obliged to consider the case put forward by the appellant in favour of its argument that the trial court exercised its discretion arbitrarily or incorrectly in the circumstances.

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What flows from a plain reading of the decisions in Evans (supra) and Charles Osenton (supra) is that an appellate court, even while deciding an appeal against a discretionary order granting an interim injunction, has to:

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a. Examine whether the discretion has been properly exercised, i.e. examine whether the discretion exercised is not arbitrary, capricious or contrary to the principles of law; and

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b. In addition to the above, an appellate court may in a given case have to adjudicate on facts even in such discretionary orders.

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The principles of law explained by this Court in Wander’s (supra) have been reiterated in a number of subsequent decisions of this Court. However, over a period of time the test laid down by this Court as regards the scope of interference has been made more stringent. The emphasis is now more on perversity rather than a mere error of fact or law in the order granting injunction pending the final adjudication of the suit.

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In Neon Laboratories Ltd. v. Medical Technologies Ltd. reported in (2016) 2 SCC 672 this Court held that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. In other words, the Court took the view that to interfere against an order granting or declining to grant a temporary injunction, perversity has to be demonstrated in the finding of the trial court.

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In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan reported in (2013) 9 SCC 21 this Court emphasised on the principles laid down in Wander (supra) and observed that while the view taken by the appellate court may be an equally possible view, the mere possibility of taking such a view must not form the basis for setting aside the decision arrived at by the trial court in exercise of its discretion under Order 39 of the CPC. The basis for substituting the view of the trial court should be malafides, capriciousness, arbitrariness or perversity in the order of the trial court. The relevant observations are extracted below:

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“20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the Appellate Court could not have interfered with the exercise of discretion by the learned Trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that weighed with the learned Trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The Appellate Court, therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different conclusion. Such an exercise is not the correct parameter

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for exercise of jurisdiction while hearing an appeal against a discretionary order. While we must not be understood to have said that the Appellate Court was wrong in its conclusions what is sought to be emphasized is that as long as the view of the trial court was a possible view the Appellate Court should not have interfered with the same following the virtually settled principles of law in this regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd.”.

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The appellate court in an appeal from an interlocutory order granting or declining to grant interim injunction is only required to adjudicate the validity of such order applying the well settled principles governing the scope of jurisdiction of appellate court under Order 43 of the CPC which have been reiterated in various other decisions of this Court. The appellate court should not assume unlimited jurisdiction and should guide its powers within the contours laid down in the Wander (supra) case.

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Any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough reported in (1878) 1 LR 1r 331, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey reported in 106 NW 814, the Court defined “perverse” as “turned the wrong way”, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.

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The expression “perverse” has been defined by various dictionaries in the following manner:

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a. Oxford Advanced Learner’s Dictionary of Current English, 6^th Ed. Perverse – Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

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b. Longman Dictionary of Contemporary English – International Edition Perverse – Deliberately departing from what is normal and reasonable.

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c. The New Oxford Dictionary of English – 1998 Edition

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Perverse – Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

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d. New Webster’s Dictionary of the English Language (Deluxe Encyclopedic Edition) Perverse – Purposely deviating from accepted or expected behavior or opinion; wicked and wayward; stubborn; cross or petulant.

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e. Stroud’s Judicial Dictionary of Words & Phrases, 4^th Ed. Perverse – A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether but is altogether against the evidence.

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The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man’s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. (See: Damodar Lal v. Sohan Devi and others reported in (2016) 3 SCC 78).”

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18.2 Further, the Hon’ble Supreme Court in the

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case of Wander Ltd. and another (Stated supra) held at

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Paragraph No.14 as under:

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“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. 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 that 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 interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

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“… These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton …. 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 individual case.”

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The appellate judgment does not seem to defer to this principle.”

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18.3 Further, the Hon’ble Supreme Court in the

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case of D.R. Chawla and Others (Stated supra) held at Paragraph No.30 as under:

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“30. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court granted such relief according to the legal principles --- ex debito jutitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. ”

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18.4 Further, the Hon’ble Supreme Court in the

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case of Gangubai Bablya Chaudhary and Others

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(Stated supra) held at Paragraph No.6 as under:

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“6. When an interim injunction is sought, the court may have to examine whether the party seeking the assistance of the court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this court

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may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9000 sq. metres of land on which they can put up construction.”

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18.5 Further, the Hon’ble Supreme Court in the

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case of C.J. International Hotels Ltd. and Others

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(Stated supra) held at Paragraph No.11 as under:

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“11. At the stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail. What the Court has to examine is: (i) the plaintiff has a prima facie case to go for trial; (ii) protection is necessary from that species of injuries known as irreparable before his legal right can be established; and (iii) that the mischief of inconvenience likely to arise from withholding injunction will be greater than what it likely to arise from granting int. The principles governing the grant of injunction are well settled. The power is discretionary and is to be exercised on sound judicial principles. Where no violation of the rights of the plaintiffs was involved, the interim injunction should not be granted. It is on these principles that the Court has to examine the respective case of the parties.”

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18.6 Further, the Hon’ble Supreme Court in the case of Sourav Sarkar (Stated supra) held at Paragraph

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No.16 as under:

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“16. The term ‘irreparable injury’ means substantial injury which cannot be adequately remedied or compensated by way of damages and the Court shall consider whether protection is necessary from the species of injuries known as ‘irreparable’ before his legal right can be established. Court shall consider whether the mischief or inconvenience likely to arise from withholding injunction will be greater than which is likely to arise if granted. At this stage of deciding the application for temporary injunction, the Court is not required to go into the merits of the case in detail.”

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18.7 Further, the Hon’ble Supreme Court in the case of Jharkand State Housing Board (Stated supra)

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held at Paragraph No.11 as under:

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“11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.”

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Defendant Nos.1 and 2 have filed suit in O.S.No.10/2024 for specific performance of contract, which is pending. Also, the defendant No.3 has filed suit for partition in O.S.No.2021/2021 which is also pending. Furthermore, Smt.Nagarathna who is the daughter of Siddaramappa has filed a suit for partition in O.S. No.3473/2021 which is also pending. No doubt defendant Nos.6 and 9 are having their share in the suit schedule property but the question is if an order of temporary injunction is not granted, whether the plaintiffs and defendant Nos.3 to 5 suffers loss and injury, which is to be considered.

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Learned counsel for the appellants/defendant Nos.3 to 6 by placing reliance on the order of this Court in M.F.A. No.6218/2025 dated 16.09.2025 between Smt. Akheela Begum and Sri. Nadimulla Khan, as share of the appellants/defendant Nos.3 to 6 be reserved. In the above said case, the facts and circumstances that the suit filed for partition. Therefore, in the said case, the

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defendants/appellants are directed to reserve lands to the extent of 6/7^th share in 1/2 share. But here in the present case, it is not the submission of the learned counsel for the appellants to reserve share but defendant No.8 being the son of defendant No.6 is intending to establish the office and for parking the vehicles of his clients. Therefore, there are differences in the factual matrix of the above said case to the present case since defendant Nos.6 to 9 are attempting to utilize the land for establishing the office and for making use of the said land for parking vehicles. Therefore, the above said order of this Court is not applicable to the present case.

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There are two suits are pending which are O.S.No.2031/2021 and 3473/2021 for partition as above stated. The Court is yet to grant share and demarcate the schedule property. If at this stage, defendant Nos.3 to 6 are alone to establish the office, then it would cause disturbance for making use of the land by the plaintiffs and defendant Nos.3 to 5.

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Considering the reliance placed by the learned

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counsel for the respondents/plaintiffs regarding grant of order of temporary injunction against the co-owner at the instance of the other co-owners, for easy reference of this Court, the same is extracted as hereunder:

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22.1 In the case of Vishwanath stated supra at paragraph Nos. 21, 28 and 29, which reads as follows:

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In the case of Sant Ram v. Daya Ram MANU/PH/0161/1961: AIR 1961 Punjab 528, a Division Bench of the High Court of Punjab after considering various judgments with regard to the distinctive features of co-ownership and the basic rules laying down the rights and obligations inter se, has held as follows:

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"78. The weight of the authorities and the principles which have been discussed above, give rise to the following propositions-

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(1) A co-Owner has an interest in the whole property and also in every parcel of it.

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(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.

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(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.

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(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

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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.

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(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property except in the event of ouster or abandonment.

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(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.

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(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other coowners, it is not open to anyone to disturb the arrangement without the consent of others except by filing a suit for partition.

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(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.

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(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."

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(emphasis supplied)

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In the case of J.Rajendran Pillai v. B.Bhasi & Others MANU/KE/0303/2022 a co-ordinate Bench of the Kerala High Court considering as to whether an injunction can be granted against one coowner at the instance of another co-owner, upon noticing various judgments including the case of Sant Ram MANU/PH/0161/1961: AIR 1961 Punjab 528 has held as follows:

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"20. Back on the questions raised, to sum up, I am to hold that there is no rigid or an unwaverable tenet that no injunction can be granted against one co-owner at the instance of other co-

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owner. In the following instances, one co-owner can maintain a suit for injunction to protect his co-ownership right.

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(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 coowner can enjoy his right over the common property without hindrance to the other co-owner/co-owners.

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(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 e hassled by 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 such building.

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(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.

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(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.

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(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 coowner.

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(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.

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(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

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disturbing the similar right of the other co-owner/co-owners, even without opting for partition."

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(emphasis supplied)

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Having regard to the position of law as noticed above, it is clear that a co-owner is entitled to seek for an order of injunction against another co-owner, if his co-ownership right is in any manner infringed upon. A co-owner is entitled to approach the Court seeking for appropriate relief when there is an obstruction in the matter of enjoyment of his co-ownership right. The only aspect that has to be kept in mind while granting an order of injunction so as to protect the enjoyment of a co-ownership right by one co-owner is that a similar right of another co-owner ought not to be disturbed.

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22.2 Also, the observations made by the Punjab and

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Haryana High Court in the case of Bachan Singh stated

¶230

supra at paragraph Nos.3 & 4, which reads as follows:

¶231

(3) In the case of common property the joint tenants or tenants-in-common, all of them are entitled to the said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of his own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the co-sharers is the possession of all of them. At the same time, it cannot be said that the person who has been in possession of the property is holding the property not only for himself but also in favour of other co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the same. The possession of one of them is possession of all in the eye of law unless the person who has been in exclusive possession asserts his

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title in himself to the exclusion of the other co-sharers which may amount to ouster. We need not dwell upon this aspect of the matter in this revision petition. suffice to say, it is for the co-sharer who claims or asserts ouster to prove the same. The point with which we are concerned is: Should a co-sharer abuse the joint property, or otherwise infringe the rights of This co-sharer, what is the remedy available to the other co-sharer? The remedies open to the other co-sharers are:

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(i) Partition

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(ii) declaration of right, damages and account of profits:

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(iii) decree for joint possession; and

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(iv) injunction.

¶239

(4) There cannot be any problem with the first three remedies open to the co-sharers. The difficulty arises only in the case of remedy of injunction which can be availed of by one co-sharer and under what circumstances the cosharer who is not in possession of the property can avail the remedy of injunction.

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Therefore, if one co-owner apprehends

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obstruction in the matter of enjoyment by other co-owner, then to prevent such obstruction, an order of temporary injunction is to be granted against the other co-owner. In the present case, the shares of the respective parties is

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yet to be decided in the suit filed for partition and also by metes and bounds. Considering the nature of property and at this stage, if defendant Nos.6 and 9 are allowed to change the nature of property that would be amounting to obstruction over the other co-owner and also the trial

¶245

Court has expressed apprehension that there would be chances of changing nature of land. Hence, the trial Court had granted an order of status quo. The order of the trial Court is found to be not having any perversity or illegality so as to make interference with the said order by this Court. But, the trial Court has just passed an order to maintain status quo over the possession by directing the parties in the suit. Considering the submission made by the learned counsel for plaintiffs that defendant No.3 to 6 are in possession over the property of defendant Nos.1 and 2 is the question to be considered before the trial. This is also one of the circumstance to maintain the suit schedule land as it is. Furthermore, Nagarathna who is daughter of Siddaramappa has also filed suit for partition

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which is also pending for adjudication. Therefore, the order passed by the trial Court is not found to be perverse or illegal. Therefore, there is no need to make interference in the order of the trial Court. Accordingly, my answer to points No.1 to 4 is in the negative. Therefore, the appeal

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is liable to be dismissed and accordingly, dismissed.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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JS/KA List No.: 1 Sl No.: 10

B S Satyanarayana v. Smt B a Dhanalakshmi

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B S Satyanarayana v. Smt B a Dhanalakshmi

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