PREM NATH Vs. MAKHAN KRISHEN

JUDGEMENT

(1.) This revision arises out of an order made by the City Munsiff Srinagar, on a preliminary issue which was to the following effect :-

(2.) The suit was for injunction. The plaintiff's case was that the land in suit was the joint property of the parties as also other co-sharers whom he had not arrayed as parties to the suit. His further case was that the land was still unpartitioned but even the defendant had started building over a portion of the same. He, therefore, claimed a decree for permanent injunction restraining the defendant from building on the suit land unless it was partitioned. One of the objections raised by the defendant in reply was that the suit could not proceed without the other co-sharers being made parties to it. Accordingly, a preliminary issue, as aforesaid, was framed and found against the plaintiff. Hence this revision.

(3.) It is no doubt a settled principle of law that a co-sharer can hold and enjoy a specific portion of the joint land and even transfer such possession to his alienee while alienating his interests in the joint land subject to adjustment at the time of partition, hut it does not mean that he or his alienee can change the character of the portions so held-by them or that they-or any one of them can use-it in a manner as might amount to total deprivation of the other co-sharers from the portions held by them. Accordingly where a co-sharer changes the char er of the portion of the joint land held by him or does it in a manner as to cause the total deprivation of the other co-sharers, one or more of such co-sharers may bring a suit to restrain him from so doing without impleading other co-sharers as parties to the suit? The view to the contrary expressed by the trial Court is therefore erroneous. Disagreeing with the trial court, I, therefore, hold that other co-sharers were not necessary parties to the suit in the present case. In that view the finding of the trial court on the preliminary issue and the consequential order of the amendment of the plaint are not sustainable and must be set aside.