Precaution to be taken by court while granting permanent injunction in partition suit

IN THE HIGH COURT OF HIMACHAL PRADESH

R.S.A. No. 89 of 2017

Decided On: 02.05.2017

Surat Ram and Ors.
Vs.
Ramesh Chand and Ors.

Hon’ble Judges/Coram:
Tarlok Singh Chauhan, J.

Citation: AIR 2017 HP125

1. The plaintiffs are the appellants, who filed a suit for permanent prohibitory injunction, which was decreed in their favour by the learned trial Court. The learned first Appellate Court though affirmed the decree passed by the learned trial Court to the effect that the parties were co-sharers as has been claimed by the plaintiffs, however, the relief granted by it was modified by limiting the relief of injunction till the time the land inter se the parties was not partitioned by metes and bounds. It is against this judgment and decree passed by learned first Appellate Court that the appellants have filed the instant appeal on the ground that the judgment and decree passed by learned first Appellate Court is based on surmises and conjectures and, therefore, is not sustainable in the eye of law.

I have heard Mr. Adarsh K. Vashista, learned counsel for the appellants and have gone through the records of the case carefully.

2. It is not in dispute that the suit of the plaintiffs was based on the plea that they along with others were co-sharers of the suit land and, therefore, the defendants/respondents do not have any right, title or interest to interfere, transfer and fence the property.

3. As observed earlier, the learned trial Court held the parties to be co-sharers, but then proceeded to pass a decree of permanent prohibitory injunction in favour of the plaintiffs which was impermissible in law, because such right would at best be available only till the time the share of the parties is not partitioned i.e. till the time they continued to be co-sharers.

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4. Once there is severance of status in partition proceedings and the interest inter se the parties ceases to be joint, then obviously a party would only be entitled to seek protection of the rights over that portion of the land which is allotted to him during the partition proceedings and cannot seek right in anyone else land.

5. Thus, the learned first Appellate Court has committed no irregularity much less illegality by modifying the relief of injunction granted by the learned trial Court by limiting the same till the suit land was partitioned by metes and bounds.

6. The judgment and decree passed by learned first Appellate Court is strictly in accordance with law or else in case the judgment and decree of the learned trial Court is allowed to stand as it is, it would amount to the plaintiffs being permitted to use the land in perpetuity. Having said so, I find no merit in this appeal and the same is dismissed in limine, leaving the parties to bear their own costs. Pending application also stands disposed of.

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