1. Challenging impugned order dated 17.12.20221 passed on I.A.No.1 filed under Order XXXIX Rule 1.and 2 CPC by XIV Addl. City Civil Judge & concurrent charge of XXXVITI Addl. City Civil Judge, Bengaluru,(CCH-39) in O.S.No0.8997/2019, this appeal is filed.

2. Appellant fierein is plaintiff, while tespondent herein was defendani. For. sake of convenience, parties shall hereinafter referred as such in this anneal.

3. G.S.No0.8997/20i9 was filed seeking for relief of permanent. injunction restraining defendant from _ interfering with plaintiff's veaceful possession and enjoyment of suit schedule oreperty bearing no.9. 1° Cross, Levelle road, Bangalore, mieasuring, approximately 5500 sq.ft. with structure on it (hereinafter referred to as ‘suit property'). In suit, plaintiff filed i.A.No.1 under Order XXXIX rule 1 and 2 of CPC seeking order of temporary injunction restraining defendant from interfering with his peaceful possession and enjoyment of suit schedule property during pendency of suit. In affidavit filed in support of application, it was stated averment in plaint were to be read as part and parcel.

4. On consideration, trial Court passed impugned order dismissing application. Aggrieved thereby, this apoea! is filed. Plaintiff/appellant appeared in person and submitted that impugned order suffers from various vices including nonapplication of mind. Elabcrating sammie, it was stated that observation of trial Court regarding extent of share of plaintiff and defendant differed in different places of impugned order.

5. While in. para no.3, it observed that plaintiff along with other family members entered into family settlement on 9.4.2010 wherein deferidant has got 50% undivided share; In para no.8, it observed that plaintiff and defendant were having 50%. undivided share and in para no.10, it observed that plaintiff's father ana his children were jointly entitled for share in suit property. Thus non-application of mind was evident.

Triai Court further observed that injunction cannot be granted against co-owner of property, which would be unsustainable since plaintiff acquired title over entire suit property, which by adverse possession. Under such circumstances refusal to grant interim order only on ground that plaintiff had made out triable case, but not prima facie case would be unsustainable.

It was further contended that being biased with false averments made in written statement, trial court held that plaintiff has not made out prima facie case.

Even reason assigned that there were no averments in application or in plaint regarding prirna face case would be unsustainable.

6. He relie¢ upon decision of Han'ble Supreme Court in Vidya Devi Alias Vidayavati (dead) by Lrs. Vs. Prem Prakash and Others (1995) 4 SCC 496, wherein, it was held in para no.28 held as under:

"28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse. possession. Broadly speaking, three elements are necessary for establishing the plea. of ouster in the case of co-owner. They are. (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and _ to_ the knowledge of other co-owner. Thus, a Coowner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."

Attention was also drawn to affidavit filed, wherein it was stated that defendant was staying in Mumbai, to substantiate that she was not in possession of suit property as on date af suit.

7. Further, relying on judgrnent of Himachal Pradesh in Ramesh Kumar Vs. Smit. Sheetai and Ors. 2021 AIR CC 643 It was submitted that a co-owner would claim injunction against another co-owner. Atteriticn was drawn to para no.17of said judgment wherein it was »9bserved that even act of co-owner in possession when detrimental to interest of other co-owners, a co-owner out of possessicn carn seek an injunction to prevent such act which is detrimental to his interest, would imply that Nlaintiff Herein can seek injunction against defendants as she was disturbing piaintiff's possession.

8. it was also submitted that entire contents of impugned order requires to be taken into account and extracted while passing orders in this appeal.

9. On the other hand, Sri. S. Basavaraj, learned Senior Counsel appearing for defendant submitted that from plaint and written statement averments, it was an undisputed fact that both plaintiff and defendants were in posséssion as ca-owners of suit property. It was further submitted that khata in respect of suit schedule property stood in riame cf defendent as on date of suit and property tax was being paid by her. It was also stated in counter affidavit that deferidant and her children were intermittently staying in suit property and hence has been in possession. It was further stated that there was no specific averment regarding plaintiff's possession in entire plaint. There was not even an assertion regarding cause of action. On reading of entire piaint, only cause of action for filing suit would be one exnressed in nara no.14 of plaint, wherein it was averred that demand was made by defendant seeking for partition of suit property. However prayer in suit was not either fer partition or declaration, but only for permanent injunction.

10. Relying upon decision in Ramesh Kumar (supra) and in Vidya Devi Alias Vidya Vati (Dead) by Lrs. Vs Prem Prakash and Others (1995) 4 SCC 496, learned counsel submitted that it was settled law that injunction could not be granted against coowner and sought for dismissal of appeal.

In reply, appellant submitted that while passing impugned order, trial Court had taken note of entire contents of written statement into account. It also contained several incorrect and false submissions and beeing influenced by same, impugned order was passed anid thi¢refore, it requires to be set aside.

11. Heard on botn side and perused record.

12. Oniy point triat arises for consideration is:

"Whether impugned order passed by trial Court.on I.A.No.1 calls for interference"

13. Firstly, submission of appellant that trial Court was influenced by false submissions and assertions made in written statement would be without much substance. Trial Court while passing impugned order has already stated reasons for passing same. Insofar as plaintiff submission that there was no application of mind, it is seen that though trial Court has emipioyed different expressions about share of plaintiff and defendants in suit property, it is merely grammatical error. But sum and substance of above would be that both plaintiff and defendants are having share in suit property and were: coowners. Therefore, reason assigned by triai Court while passing impugned order that a co-owner cannot seek injunction against another co-owner would indicate erroneous. understanding of trial Court.

14. A bare perusal of piaint averments which he averred that defendant has iost her interest by way of adverse possession itself would aiso indicate that they were co-owners. Therefore observetions of trial Court about same cannot be faulted. Indeed, it wouid also require to be noted that though plaintiff has averred that ne has acquired title by way of adverse possession over property, prayer sought in suit is not for deciaration of title by adverse possession but only for permanent injunction. It would also be relevant to note that in the entire piaint plaintiff has not stated date of beginning of adverse possession and completion of 12 years prior to filing of suit, which would essential for seeking such right.

15. It is seen from application and affidavit filed by plaintiff, that except stating that averment made in plaint may be treated as part and parcel of affidavit, plaintiff has not made specific averments about prima facie case, baiance — of convenience and irreparable loss and injury, for grant of temporary injunction even in plaint. Entire narratian is mainly about various disputes between parties. Insofar as suit croperty is concerned plaintiff stated that he was in exclusive possession of suit property and defendants having been out of possession and he acquired title by way cf adverse possession.

16. Insofar as interrerence is concerned only assertion is one stated in paragrap’) no.14 that respondent is asking for partition of suit property. Admittedly both plaintiff and defendant were having joint interest in suit property. It is not case of piaintiff that there was partition. Until then both of them are deemed to be in joint possession of suit property, law regerding possession of co-owners is well settled. Even in Ramesh Kumar case, (supra) it is clarified in para no.10 by referring to earlier decision in Sant Ram Nagina Ram V. Daya Ram Naagina Ram AIR 1971 Punj.528, as follows:

"10. Since, in the case at hand, it is not in dispute that the parties to the lis are joint owners of suit land and by way of application at hand, injunction is being sought against one of he co-owners, it would be apt to deal with rights and _ liabilities of cosharers. In this regard, reliance is placed upon judgment endered by a Division Bench, of Punjab and Haryana High Court in Sant Ram Naginé kam v. Daya Ram Nagina Ram, AIR 1961 Puniab 528, wherein it has been held as under:

(1) A co-owner has an interest i7 the whole property and also in every parce! of it.

(2) Possession of the jot property by one co-owner is in the eye of law, possession cf all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire joint. property does not necessarily amcunt to ouster as_ the possession of one is aeemed to be on behalf of alt.

(4). The above rule admits of an exception when there is ouster of a co-owner by enother.. But in order to negative the presumpticen of joirit possession on behalf of ail, on the ground of ouster, the possession, of a co-owner must not only be exclusive but also fiostile to the knowledge of the other, as, when a co-owner openly asserts fiis own title and denies that of the other.

(5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other coowners.

(7) Where a co-owner is in possession of separate parcels under an_ arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a Suit for partition.”

While summoning up legal position, Court has stated as follows:

"17. It is quite apparent from. the aforesaid exposition of law that a co-owner is not entitled to an injunction restraining. another co-owner. from exceeding his rights in the common property absolutely and simply because he is a co-owner unless any act of the persori in possession of the property amounts to ouster prejudicial or adverse to the interest of the co-owner out cf possession. Mere making of construction or iniprovement in the common property does not amount to ouster rather, if by any act of the co-owner in possession the vaiue or utility of the property is diminished, ther a co- owner. out of pvossession can certainly seek. an injunction to prevent the diminution of the value and utility of the prope:ty. If the acts of the co-owner in. possession are detrimental to the interest ci other co-owners, a co-owner out of possession can seék an injunction to prevent such act whichis detrimental to his interest.”

17. It is stated that injunction against co-owner could be granted onlv where acts of co-owner would diminish value and utility of proverty. In Karam Singh Vs. Lakhbir Kaur 2011 (3) civil Court cases, 162, it is held that where possession of all co-sharers is joint, relief of injunction cannot be sought by either of co-sharers and only relief which is available to co-sharer is to seek partition by metes and bounds.

18. Insofar as adverse possession, High Court of Allahabad in Abdul Salam & Ors. Vs. Imrana Suiddiqui &. Ors.(2019) 134 ALR 54, in para no.40, has clarified about necessary facts required to be pleaded and proved nemely,

"40. In order to arrive at a finding regarding adverse possession it is absolutely essential for a person raising such a pleas to plead and prove the following ingredients:

a. on wnat date, fie came_ into possessicn;

b. what was the nature of his possession;

c. whether the factum of possession was not known to tne other party;

d. how «long. his possession has continued; and

e. his possession was open and undisturbed."

On perusal of averments in plaint, it is seen that it is absolutely bereft of any such material particulars.

19. Sucn being case, when plaintiff has not sought relief of declaration of title by way of adverse possession or relief of partition by metes and bounds, whether suit in its present state would be maintainable or not would be an serious issue.

20. Under such circumstances, refusal to grant interim order by trial Court on reasons assigned by it would not call for interference. It is settled law that relief of injunction is a discretionary relief and scope for interference in appeal weuld be limited. Unless impugned order passed by trial Court suffers from palpable error or is untenable there cannot be any interference.

21. Hon'ble Supreme Court in Mod. Mehtab Khan Vs. Khushnuma Ibrahim Khan & Others (2013) 9 SCC 221 has held that even if view taken is one of possibie view and it would not call for interference. Trial Court has observed that plaintiff's claim would have to be established in a full fledged trial. Therefore, I do not find any itustification to inierfere with the impugned order. In the result I pass following:

ORDER

1. Appeal is dismissed.

2. Both parties are directed to co-operate for expedite disposal of suit.