Jammu & Kashmir High Court: A Single Judge Bench of Sanjeev Kumar, J., dismissed a second appeal filed against the order of the appellate court.
The appellant and the respondent were joint owners of a particular piece of property, both of them had constructed their respective houses on the same piece of land. The dispute arose when the appellant used started construction on the land which was a common passage for both the parties.
The main issue, in this case, was whether a co-owner can seek an injunction, restraining the other co-owner from using a joint property or raising construction thereon without seeking relief of partition.
The Court observed that it is undisputed that the suit property was a common passage for both the parties and it is not the case of the defendant that except for the land under their respective occupation in the shape of construction of the houses, the rest of the land is vacant and un-partitioned. The existence of common passage was also backed by the evidence of Patwari who had inspected the land in presence of both the parties. In cases where one co-owner of a property encroaches upon the property which is jointly owned by all the co-owners, then in those cases, a suit for injunction-simpliciter is maintainable.
However, the Court held that there is no absolute law that a suit for injunction by one co-sharer against another co-sharer is not maintainable and the co-sharer approaching the Court should be relegated to the alternative efficacious remedy of seeking partition. Hence, the Court upheld the order of the appellate court and dismissed the appeal of the appellant. [Girdhari Lal v. Ram Lal, 2018 SCC OnLine J&K 693, order dated 03-10-2018]
