N. K. Kuppuraj v. N.D. Lenin S/O N. K Dasaratha

In the High Court of Judicature at Madras Dated: 24.08.2016 Coram The Honourable Mr.JUSTICE K.RAVICHANDRABAABU Second Appeal No.712 of 2016 and CMP No.13466 of 2016 N.K.Kuppuraj ... Appellant/Appellant/Plaintiff Vs.

N.D.Lenin ... Respondent/Respondent/Defendant Prayer:Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 05.04.2016 of the learned Subordinate Judge, Kancheepuram made in A.S.No.38 of 2012 confirming the judgment and decree dated 30.03.2012 made in O.S.No.471 of 2008 by the learned Principal District Munsif, For Appellant : Mr.D.Rajagopal For Respondent : Mr.V.Manoharan

J U D G M E N T

The unsuccessful plaintiff before the courts below is the appellant. He filed the suit for bare injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit property. Though the plaintiff accepted that the defendant is one of the co-sharer of the suit property, has however sought the relief of injunction by contending that he is in possession of the suit property and doing the business therein. The said suit is resisted by the defendant. The trial court as well as the appellate court found that the plaintiff has not disputed the fact that the suit property belongs to the defendant also as one of the co-sharer of the same. The courts below also found that the defendant is in possession of the suit property and that the alleged interference by the defendant on 20.09.2008 was not proved by the plaintiff. Therefore, the

courts below dismissed the suit. Now, the present second appeal is filed before this court challenging the concurrent findings. 2.Heard Mr.D.Rajagopal, the learned counsel appearing for the appellant and V.Manoharan, the learned counsel appearing for the caveator.

3.Admittedly, the present suit is the one for bare injunction. It is seen that the plaintiff is not claiming exclusive right over the suit property and on the other hand he admits that the defendant is also one of the co-sharer. The well settled proposition of law is that a co-owner cannot seek an injunction against the other co-owner in respect of the property owned jointly. If any dispute arises the appropriate course of action would be by way of filing a suit for partition and other reliefs and not for injunction. In this case, the courts below have rendered a factual finding that the plaintiff is not in possession of the property and that the alleged interference on 20.09.2008 has also not been proved.

When that being the factual finding rendered by the courts below, I am of the view that this court by exercising the power under section 100 CPC cannot interfere with such concurrent findings rendered by the courts below more so, when no substantial question of law arises for consideration. Therefore, the second appeal fails and the same is dismissed. The dismissal of the present appeal shall not stand in the way of the respective parties to file a separate suit for partition and other reliefs and if any such suit is filed, any of the findings rendered in this proceedings including the findings rendered by the courts below will not stand in the way of deciding such suit on its own merits and in accordance with law independently. No costs. The connected petition is also dismissed.

Sd/- Asst. Registrar.

/true copy/ Sub Asst. Registrar.

vri To 1.The Subordinate Judge,

2.The Principal District Munsif, +1 CC to M/s. D. Rajagopal, Advocate Sr.No.48479 +1 CC to M/s. V. Manoharan, Advocate Sr.No.48397 S.A.NO.712 OF 2016 RSK (CO) MD : 13/10/2016