Tej Singh vs Gulabi Devi and Others

Kamlesh Sharma, J.—This is a Regular Second Appeal against the decree and judgment dated 26-2-1979 of Additional District Judge, Mandi, whereby the decree and judgment dated 27-2-1978 of Sub Judge, Mandi. was set aside and the suit was remanded to the trial court with directions that issues on merit would be framed and the case would be tried in accordance with law.

Smt. Gulabi Devi, Respondent-Plaintiff, had filed a suit against the Appellant-Defendant Sh. Tej Singh for permanent prohibitory injunction restraining him from planting orchard in the suit land. Her case was that she, Sh. Tej Singh and Performa Respondents-preformed Defendants Smt. Lanka and Smt. Manchali were joint owners in possession of the suit land and their separate possession was just for the sake of cultivation. According to her, the suit property was liable to be partitioned and Sh. Tej Singh had no right to plant orchard on the land which was in his possession. Sh. Tej Singh denied that the suit land was jointly owned and possessed by the parties and was liable to be partitioned. According to him, the suit land had fallen to his share in a private partition and was in his exclusive possession.

The trial court framed preliminary issues only and decided the case on the basis of findings thereon, inter alia, that the suit was not maintainable. The first appellate Court set aside those findings of the ground that Smt. Gulabi Devi could file a suit for permanent prohibitory injunction restraining Sh. Tej. Singh who is one of the co-owners from planting orchard over the suit land which was joint between the parties.

I have heard the learned Counsel for the parties and gone through the record. On my pointing out, at the very outset, that no regular second appeal u/s 100 CPC lies against a remand order which is purported to have been passed under Order 41, Rule 23 CPC Sh. Vijay Thakur appearing on behalf of Sh. Tej Smgh prayed for treating this appeal as first appeal from order under Order 43 Rule 1(U) CPC Sh. M.L. Sharma, learned Counsel for Smt. Gulabi Devi has no objection. I find that there is no impediment to treat this Regular second appeal as First Appeal from Order. Therefore, in order to decide the appeal on merit and to do substantial justice between the parties, I treat it as First Appeal from Order.

Sh. Vijay Thakur has vehemently argued that a co-owner cannot ask for an injunction against another co-owner as has been done by Smt. Gulabi Devi in the present case. He has referred to Section 41(h) of Specific Relief Act and has relied upon Khimji Mulji v. Popatlal Bhanji and Ors. AIR 1951 Sau 85 and Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, According to him, Smt. Gulabi was required to get the suit land partitioned instead of filing the present suit. The proposition of law laid down in Khimji Mulji''s case and Sant Ram Nagina Ram''s case (supra) is not in dispute but their ratio does not apply to the present case. In the present case as held by the District Judge, Sh. Tej Singh has failed to prove family partition as well as his exclusive possession over the suit land. Smt. Gulabi Devi has not filed this suit to distrub the possession of Sh. Tej Singh over the suit land. Her limited prayer is that Sh. Tej Singh may be restrained from raising an orchard over te suit land. Her apprehension that if an orchard is raised, Sh. Tej Singh will claim some advantage at the time of partition seems, prima-facie, to be genuine. Therefore, in these circumstances, her suit was maintainable.

Sh. Vijay Thakur has not raised any other point challenging the remand order.

In the result, I dismiss this appeal and uphold the remand order dated 26-2-1979 of Additional District Judge, Mandi. The record be sent to the Senior Sub Judge, Mandi immediately, who will restore the suit to its original number and decide it as expeditiously as possible. The parties are directed to appear before the Senior Sub Judge, Mandi, on January 5, 1991.