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Shyam Lal v. State Of U.P. And Others - WRIT - C No. 27375 of 2006 [2006] RD-AH 9929 (19 May 2006)


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Heard the learned counsel for the petitioner.

Respondents-plaintiffs has filed a suit for permanent injunction in which they also presented temporary injunction application stating that the property in question has come to their share on partition between the parties. The parties are from the same family. As per the plaint allegations, the defendant-petitioner is trying to usurp the property of the plaintiffs. The injunction application has been contested and it has been stated by the defendant-petitioner that the property in question is joint and one co-sharer cannot get injunction as against the other co-sharers as all the share-holders in the property have joint title and possession over every inch of the joint property. The trial court after appreciating the respective contention of the parties found that primafacie it has not been reflected on record that the property in question has been partitioned and accordingly one co-sharer cannot be permitted to object to any construction which is being raised by the other   co-sharer in the joint property.

In the aforesaid view of the matter, the respondents' application of temporary injunction was dismissed by the trial court against which the appellate court has allowed the respondents' appeal and issued temporary injunction against the petitioner directing him not to raise any construction in the disputed land.

The learned counsel contends that since the plaint contention that the respondents are exclusive owners of the property in question was not primafacie reflected on record and the parties are from the same family, there is presumption of jointness between them and, therefore, the property in question being joint, one joint owner is not entitled to get temporary injunction against the other co-sharer. The respondent-plaintiff should have filed suit for partition instead of suit for permanent injunction. The appellate court has also not found that there has been any partition of the shares of the joint family property between the parties.

Issue notice to the respondents No. 2 to 6 returnable within six weeks.

List thereafter on the date fixed in the notices.




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