I GOURI Vs. C H IBRAHIM

JUDGEMENT

(1.) This revision petition arises out of a rejection of an application for temporary injunction filed by the plaintiffs. The plaintiffs who are petitioners here instituted a suit for partition of the plaint schedule property which is having an extent of 11 cents. The case is that the plaint schedule property was allotted to their paternal uncle, one Govindan, as per the decree in the partition suit, O. S.17 of 1953. Govindan died in 1962 and the plaintiffs and their 3 brothers who are the legal heirs of the said Govindan got the property along with another item which is 26 cents in extent, and which also lies nearby. The plaintiffs' brothers assigned the present plaint item to one Mrs. Jane James holding themselves out as the exclusive owners in the property. The conveyance was not of any undivided interest of theirs in the properties obtained under the partition decree. Mrs. Jane James assigned the property to the defendants by document dated 20-2-1970. According to the defendants they got possession by the assignment whereas according to the plaintiffs, the defendants tried forcefully to enter in the plaintiffs' property. This led to a suit, O. S.112 of 1979 filed by the plaintiffs for a permanent injunction to restrain the defendants from entering into the property. Though a temporary injunction had been granted in that suit in the first instance, after the appearance of the defendants that injunction had been vacated. Thereafter, the present suit for partition had been filed where the plaintiffs claimed 4/V share in the property. And as stated earlier along with the suit the application for temporary injunction was filed for restraining the defendants from putting up any construction in the plaint schedule property, the decision in which has led to the present revision petition.

(2.) The Trial Court granted temporary injunction in the first instance, and on the view that the suit is bad for nonjoinder of necessary parties and for partial partition dismissed the petition. Aggrieved by that the plaintiffs filed an appeal, before the District Judge, Kozhikode, C. M. A. No. 56 of 1979. The learned District Judge has confirmed the decision of the Trial Court holding that the petitioners are not entitled to the equitable relief of temporary injunction. In the circumstances the plaintiffs have approached this court.

(3.) What is contended before me by the petitioners is that by permitting the respondents to go on with the construction in the plaint schedule property, irreparable injury is being caused to the petitioners. The view of the court below that the failure of the inclusion of their entire properties and non impleading of their brothers would show mala fide intention on the plaintiffs' part is incorrect. It is pointed out that by the sale deed dated 1-3-1978 what is conveyed to Mrs. Jane James is a specific item of property and not the undivided share of the assignors. The suit cannot be bad for partial partition. As far as the other item of property is concerned, the defendants have no interest and therefore there is nothing wrong in filing a separate suit as regards the present plaint item. According to the plaintiffs it is trite law that a coowner should not be allowed to alter the nature and character of the property by making construction to defeat the rights of the major sharers. A stranger assignee from a coowner is not in law entitled to compel the plaintiffs to include all coownership properties in the suit for partition and it is open to the coowners to keep one item in common. The suit property is not coparcenary property, but only a property held in tenancy in common and the alienee has no right to insist on the inclusion of other items of coownership properties.