Tukaram and Others vs Mahadev and Others

A.V. Chandrashekara, J.—This is an appeal filed by the defendants of an original suit bearing O.S. No. 169/1995, which was pending on the file of the Court of Principal Civil Judge (Jr.Dn.), Raibag. Plaintiffs had filed the suit for the relief of declaration that they are the owners to an extent of 1/2 share in the suit schedule property and relief of permanent injunction. The said suit had been resisted by the defendants on various grounds. Ultimately suit came to be decreed declaring the plaintiffs as the owners to an extent of 1/2 share, in respect of the land in survey No. 36/3 and 36/6 and injunction was also granted against the defendants from interfering with the peaceful possession and enjoyment of the share of the plaintiffs vide a considered judgment dated 24.01.2001. Against the said judgment and decree, a regular appeal u/s 96 of CPC was filed in R.A. No. 173/2008 by raising many contention. Ultimately, the appeal filed by the defendants has been allowed in part by order dated 05.02.2009 declaring that the plaintiffs are entitled for 1/2 share in respect land in survey No. 36/3 measuring 1.30 acres and 1/4 share in respect of land bearing survey No. 36/6 measuring 2.19 acres. The relief of injunction has been granted till the parties initiate final decree proceedings. These concurrent fin dings are called in question by the defendants.

On hearing the learned Counsel for the appellants, following substantial question of law is framed for consideration in this appeal:

Whether the First Appellate Court is justified in granting the relief of injunction against the defendants from interfering with the joint possession till the parties get the matter decided by way of final decree proceedings?

Perused the judgments of both the Courts and heard the learned Counsel appearing for the parties.

There is no serious dispute about the quantum of rights declared by the First Appellate Court insofar as the appellants and respondents are concerned. Anyhow, the plaintiffs are entitled for 1/2 share in respect of the land in survey No. 36/3 and 1/4 share in respect of land in survey No. 36/6. The relief of partition granted by the First Appellate Court is also not seriously disputed. What is disputed is about the injunction granted against the defendants from interfering with the possession of the plaintiffs till the dispute is finalized by initiating final decree proceedings.

Admittedly, the land in question belonged to one Ramu, the propositus. He had two sons by name Kallu and Vithoba. The first son Kallu is dead and he had two sons namely Siddu and Ganapati. These two properties i.e., land in survey Nos. 36/3 and 36/6 had fallen to the share of Vithoba or a partition between him and his brother Kallu. The second son Vithoba died intestate and he had no issues. Therefore, the share of Vithoba automatically devolved upon two sons of Kallu namely Siddu and Ganapati. Siddu had 4 sons by name Ramachandra, Tukaram, Kalu and Mahadev who are defendant 1 to 4. Defendant No. 1 Ramachandra and original plaintiff Ganapati expired during the pendency of the suit and their legal representatives were brought on record.

Naturally the share that Vithoba had will have to be equally divided between the two sons of Kallu namely, the one represented by Siddu''s branch and another represented by Ganapati''s branch. Ganapati chose to file a suit for the reliefs of declaration and permanent injunction and he died during the pendency of the suit. His four legal representatives are on record as plaintiffs. Naturally Ganapati''s branch is entitled for 1/2 share in Vithoba''s property and Kallu''s children are entitled for 1/2 share. Since deceased Vithoba had 1/2 share in the entire extent of land in survey No. 36/6, the First Appellate Court has restricted the share to 1/4 each to both the branches. Therefore, the apportionment of the shares made by the First Appellate Court is not found fault with and cannot be found fault with also.

Though the suit had been originally filed before the trial Court for the reliefs of declaration of title and permanent injunction, the First Appellate Court has molded the relief by invoking order 7 Rule 7 of CPC and has allotted requisite shares to the parties on the basis of the share that Vithoba had. Therefore, the exercise made by the First Appellate Court in molding the relief cannot be found fault with in any manner. In fact it is to be appreciated that the First Appellate Court, in stead of driving the parties for another litigation, has rightly allotted requisite shares to the parties. Anyhow, there cannot be injunction against co-owners till the share of the parties are clearly demarcated by metes and bounds as contemplated u/s 56 of CPC by initiating final decree proceedings.

Therefore, this Court is of the opinion that the First Appellate Court is not justified in granting the relief of injunction against the co-owners and after granting the relief of partition, it should have left the matter to be decided on the final decree Court.

In this view of the matter, the judgment of the First Appellate Court insofar as it relates to granting of injunction will have to be set aside by making it clear that, there cannot be any injunction against co-owners. It is also made clear that the parties will have work out their remedies by filing a petition u/s 54 of CPC.

ORDER

Appeal filed u/s 100 of CPC is allowed in part. Order of granting injunction against the defendants by the First Appellate Court as well as the trial Court is set aside. The parties are at liberty to work out their remedy by filing final decree petition u/s 54 of CPC and in the event of petition being filed u/s 54 of CPC, the final decree Court shall expedite the matter by getting suitable report from revenue officer not below the rank of Tahasildar, as per Section 54 of CPC (Karnataka Amendment).

In view of the facts and circumstances of the case and the relationship of the parties, there is no order as to costs. The quantification of shares made by the First Appellate Court is affirmed for all practical purposes.