GOPI NATH BAYU Vs. PRABHA WATI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the SUb Judge (CJM) Srinagar, whereby he has set aside the judgment and decree of the 1st. Addl. Munsiff Srinagar dismissing the plaintiffs suit. The plaintiff claimed to be the exclusive owner of the land and the house included in survey No. 985 situated in village Kuhnmuh, Tehsil Khass, The claim was founded upon a compromise deed executed by the parties in a previously instituted suit. The case of the plaintiff was the entire surety number including the house standing over it had fallen to her exclusive share. His further case was that ever since the compromise was effected she was in possession of the disputed property. Her case also was that lately the defendant had started interferring with her possession. She asked for a permanent injunction restraining the defendant form interferring with her proprietory possession of the dispute property. The defendant resisted the suit. In the written statement filed by him he did not deny the plaintiffs title to the house. His case, however, was that the land included in survey No. 985 was owned by the parties in equal shares. His further case was that the plaintiffs share included the land underneath the house. On consideration of the evidence, the trial court up hold the defendants case and dismissed the suit - In appeal, the learned Sub Judge, CJM, Srinagar, negatived the defendants case and up held the plaintiffs case and decreed the suit.

(2.) THE learned Sub Judge has approached the case both on the basis of title and possession. He has found that survey No. 985 exclusively belongs to the plaintiff. Further he has found that she is in exclusive possession thereof. In coming conclusion that the plaintiff is the exclusive owner of the disputed land, the learned Sub Judge, has mis -read the compromise deed dated 11.8.1958. According to the compromise deed the plaintiff agreed that the land measuring 52 kanals and 12 marlas included in survey Nos. 9856, 521, 560, 561, 562, and 563 situate in village Kuhnmuh shall be deemed to be their joint property, and that each shall be entitled to one half share thereof. They also agreed that the house standing over survey No. 985 shall go to the plaintiff. The compromise deed no where shows that the land was partitioned by mates and hounds. The effect of the compromise is that the parties are the joint owners of the land included in various survey Nos. including survey No, 985 mentioned above.

(3.) IT is settled law that one co owner cannot sue another co -owner for permanent injunction restraining him from interfering with his joint property. In the circumstances irrespective of the fact, whether it was the plaintiff or the defendant who was in possession of the disputed land, the suit for permanent injunction could be passed in favour of the plaintiff against the defendant. In that view, it is not necessary for me to go into the question as to whether it is the plaintiff or the defendant who is in the exclusive possession of the disputed land? I leave that question open.