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Rukmani and ors. Vs. H.N. Thirumalai Chettiar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberL.P.A. No. 51 of 1984
Judge
Reported inAIR1985Mad283; (1985)1MLJ142
ActsTransfer of Property Act, 1882 - Sections 44; Code of Civil Procedure (CPC), 1908 - Sections 104(1) and 104(2) - Order 39, Rule 1
AppellantRukmani and ors.
RespondentH.N. Thirumalai Chettiar
Appellant AdvocateV. Natarajan, Adv.
Respondent AdvocateS.V. Ramamurthi, Adv.
Cases ReferredV. S. Boopathy Chettiar v. Radha Rukmani L.P. A.
Excerpt:
- .....to grant injunction, restraining the defendants therein from putting up constructions in the suit property bearing survey no. 263 and measuring 5.38 acres. according to the plaintiffs, the sixth defendant in the suit who is the respondent herein, though has, purchased only 2/3 share in the suit property, is putting up huge constructions in the entirety of the suit property without actually having his 2/3rd share divided by metes and bounds. the trial court, however, refused to grant injunction on the ground that there is no prima facie case made out for the grant of injunction -pending the suit. the order was challenged before this court in c. m. a. 869 of 1983, and that appeal is still pending before this court. in that appeal an interlocutory petition was filed for the grant of.....
Judgment:

Ramanujam, J.

1. This appeal arises out of an order passed by Mohan J. in CMP 17787 of 1983 in AAO 869 of 1983, refusing to grant injunction as prayed for by the appellants therein. The said C. M. A. arose out of an order dated 30-11-1983 passed by the trial court in I. A. 239 of 1983 in O. S. 65 of 1983, on the file of the Sub Court, Krishnagiri, refusing to grant injunction pending disposal of the suit O. S. 65 of 1983 for partition. In the said C. M. A. 869 of 1983, the plaintiffs in O. S. 65 of 1983 questioned the order of the trial Court refusing to grant injunction, restraining the defendants therein from putting up constructions in the suit property bearing survey No. 263 and measuring 5.38 acres. According to the plaintiffs, the sixth defendant in the suit who is the respondent herein, though has, purchased only 2/3 share in the suit property, is putting up huge constructions in the entirety of the suit property without actually having his 2/3rd share divided by metes and bounds. The trial court, however, refused to grant injunction on the ground that there is no prima facie case made out for the grant of injunction -pending the suit. The order was challenged before this court in C. M. A. 869 of 1983, and that appeal is still pending before this court. In that appeal an interlocutory petition was filed for the grant of injunction pending the appeal. That petition was dismissed by Mohan J. by the following order-

'Excepting to state that any construction put up by the respondent will be purely at his risk for which he can claim no compensation whatever, I see n& justification to grant injunction because admittedly the sixth defendant-respondent has come to purchase the 8/12 or 2/3 share. This petition is dismissed.'

The appellants in C. M. A. 869 of 1983 have filed this Letters Patent appeal.

2. The order of the learned Judge proceeds on the basis that the respondent has come to purchase 2/3rd share in the suit property and therefore he can be permitted to put up constructions at his risk on condition that he will not make any claim for compensation in future in the event of the plaintiffs succeeding. The, question is whether a co-sharer having 2/3rd share in the suit property could be allowed to put up constructions in the suit property even with such a condition as has been imposed by the learned Judge. If the respondent claims to have acquired full title to the suit property and if such a title comes to be questioned by other parties it may be that the court can prima facie proceed on the basis of his full title and permit him to put up constructions, at his own risk and cost without any claim for compensation. But where the respondent has not claimed full title to the suit property, the court cannot permit him to put up constructions on the suit property much to the prejudice of other co-sharers. If the respondent has acquired title to the property only partly, he cannot be taken to be the full owner and he cannot exercise rights of exclusive ownership to the detriment of other co-sharers. Unless he has his share demarcated in a suit for partition or by any other arrangement he cannot put up constructions either on the entirety or on a portion of the property. On the finding given by the learned single Judge that the respondent has purchased 2/3rd share in the suit property we think that it is not possible to sustain the order permitting the petitioner to put up constructions on the suit property at his risk. The respondent, being a co-sharer, cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition filed by the co-sharers. In this view, we are not in a position to uphold the order under appeal on merits.

3. At this stage, the' learned counsel for the respondent contends that the Letters Patent Appeal is not maintainable in view of S. 104(2) of the Code of Civil Procedure. S. 104(2) says that no appeal shall lie from any order passed in appeal under that section. According to the learned counsel, since the said section bars a further appeal under that section, there cannot be an appeal even under Letters Patent against an order passed under S. 104(l). In support of his plea as regards the maintainability of the Letters Patent Appeal the learned counsel refers to the decision in Obedur Rehman v. Ahmedali Bharucha, : AIR1983Bom120 . No doubt in that case, the court has held that the bar under S. 104(2) of the Civil Procedure Code applies even to Letters Patent appeals and therefore Letters Patent Appeal filed against the order under S. 104(l) refusing to grant temporary injunction were liable to be dismissed as not maintainable. However, a similar question carne up for consideration before a Division Bench of this Court in V. S. Boopathy Chettiar v. Radha Rukmani L.P. A. 6 of 1983: 1984 TLNJ 92. In that case after considering the relevant decisions of the Supreme Court, held that a Letters Patent appeal is maintainable against an order passed by a single Judge under S. 104(l) of the Code of Civil Procedure. Of the two said decisions, one a Division Bench of the Bombay High Court and the other of the. Division Bench of this Court we are inclined to follow the Division Bench decision of this Court. We therefore hold that the Letters Patent, appeal filed in this case is maintainable.

4. For the reasons stated above, the appeal is allowed and there will be an injunction restraining the respondent from proceeding with the construction on the suit site pending disposal of C. M. A. 869 of 1983 as prayed for by the appellants in this case. There will be no order as to costs.

5. Appeal allowed.


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