DAMODAR AND OTHERS Vs. MOHANPRASAD AND OTHERS

JUDGEMENT

(1.) Challenge is to an order dated 04/08/2017 passed in an appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 whereby the Appellate Court affirmed the order by the trial Court rejecting petitioners' application under Order 39 Rule 1 and 2 of Code of Civil Procedure.

(2.) Suit at the instance of the petitioners is for declaration of title, partition and permanent injunction in respect of 1/4th and 1/12th share in the well situated over survey No. 234/13/5 admeasuring 0.010 hectare which in turn is on the basis of the registered sale deeds dated 07/09/2012 and 04/07/2016. Petitioners also filed an application under Order 39 Rule 1 and 2 CPC to injunct the respondents/defendants causing any interference, in use of well of their share. The prayer was opposed at on the ground that the well being a joint property, injunction cannot be granted. The trial Court recording the finding that the plaintiffs and the defendants are joint owner of the well declined to grant injunction. Even an alternative plea for use of well over their share was declined. The Appellate Court also followed the sue by dismissing the appeal.

(3.) After hearing learned counsel for the parties and taking into consideration the fact on record that both the parties jointly own the well, none of the parties have a right to prevent either from using the well.