KUSUM KAPOOR Vs. PROMILA KAPOOR & ORS.

JUDGEMENT

(1.) Appellant instituted a civil original suit against the respondents praying therein that the decree of partition by meets and bounds of house constructed on plot No. 21-A & 21-B particular whereof are given in the plaint, be passed in her favour and a decree for separate possession was also sought for. The appellant also filed an application under Order 39 Rules 1 and 2 CPC, wherein she prayed that the respondents be restrained from raising any construction on the suit property. Learned trial Judge vide its order dated 10.04.2012 dismissed the injunction appli cation. It is this order, which is called in question, in this appeal.

(2.) The contentions raised by the learned counsel for the parties in this appeal were considered. Learned trial Judge has fallen into error by dismissing the appli cation on the ground that no decree or order of injunction can be issued against co-owner, as the co-owner cannot be restrained from enjoying the joint property, when no such relief was sought. The judgments referred to in the impugned order provide that no injuction can be issued against a co-owner in a suit filed by another co-owner, so as to restrain him from enjoying the joint property. In the case on hand appellant had not sought an injuction against the respondents, so as to prevent them" from enjoying the joint property. The injunction application was filed with the prayer that respondents be restrained from raising construction on the joint prop erty. Learned trial Judge has not considered this aspect of the matter. Learned trial Judge was under legal duty to consider the issue raised in the suit and in the written statement and had to return a, prima facie, finding as to whether, in the facts and circumstances, of the case respondents may or may not be restrained from raising the construction on the suit land. In a case of like nature the application seeking to place restrain on the other side to raise construction is competent and maintainable, but the learned trial Court has to decide the same on the settled principles of law for grant or otherwise of the injunction. Since the learned Judge has not adverted its attention to this aspect of the matter and on presumptuous conclusion has dismissed the application, when as a matter of fact the case was not set up by the appellant that respondents be restrained from enjoying the joint property.

(3.) For the above stated reasons, the appeal is allowed. The order impugned passed by learned Additional District Judge, Jammu is set aside. Learned trial Judge to reconsider the injunction application in accordance with law and decide the same preferably within a period of thirty day from the date record is received.