Prem Nath vs Makhan Krishen

(1) This revision arises out of an order made by the City Munsiff Srinagar, on a preliminary issue which was to the following effect :

Whether the necessary parties have not been impleaded in the present suit and if so what will be its effect upon the suit ?

(2) The suit was for injunction. The plaintiff's case was that the land in suit was the joint property of the parties as also other cosharers whom he

had not arrayed as parties to the suit. His further case was that the land was still unpartitioned but even the defendant had started building over a

portion of the same. He, therefore, claimed a decree for permanent injunction restraining the defendant from building on the suit land unless it was

partitioned. One of the objections raised by the defendant in reply was that the suit could not proceed without the other cosharers being made

parties to it. Accordingly, a preliminary issue, as aforesaid, was framed and found against the plaintiff. Hence this revision.

(3) It is no doubt a settled principle of law

that a cosharer can hold and enjoy a specific portion of the joint land and even transfer such possession to his alienee while alienating his interests in

the joint land subject to adjustment at the time of partition, hut it does not mean that he or his alienee can change the character of the portions so

heldby them or that theyor any one of them can useit in a manner as might amount to total deprivation of the other cosharers from the portions held

by them. Accordingly where a cosharer changes the character of the portion of the joint land held by him or does it in a manner as to cause the

total deprivation of the other cosharers, one or more of such cosharers may bring a suit to restrain him from so doing without impleading other

cosharers as parties to the suit? The view to the contrary expressed by the trial Court is therefore erroneous. Disagreeing with the trial court, I,

therefore, hold that other cosharers were not necessary parties to the suit in the present case. In that view the finding of the trial court on the

preliminary issue and the consequential order of the amendment of the plaint are not sustainable and must be set aside.

(4) I therefore, accept this revision petition and make an order accordingly.

(5) The file will go back to the trial court for further proceedings in accordance with law. The parties are directed to appear in the trial court on

2521974.