JUDGMENT
N.K. Agrawal, J.
1. This is a revision petition by the plaintiff against the order dated July 23, 1999 passed by the Additional District Judge, Ludhiana, whereby the temporary injunction granted by the trial Court under Order 39 Rules 1 and 2, Civil Procedure Code, in favour of the plaintiff has been set aside.
2. Plaintiff filed a civil suit for permanent injunction restraining the defendant from interfering with the plaintiffs possession on the property mentioned in the suit. The case of the plaintiff as set up in his plaint is that he has purchased the land measuring 1 kanal 8 marlas by a registered sale deed dated August 5, 1997 from his father, Ram Murti. Mutation has been sanction in his favour. The defendant’s house is situated to the east of the plaintiffs property. Plaintiff stated that he is in possession of the property but the defendant is trying to oust him from the house in question. He further stated that he has been paying the house tax and also the electricity and water charges. Copies of the receipts were produced. His father, Ram Murti, had sold his half share in the land to him for Rs. 37,500/-. Ram Murti and the defendant, Mohan Lal, are brothers and co-sharers. The house tax and the electricity and water bills had been issued in the name of Ram Murti. It showed that Ram Murti, the vendor, was in possession.
3. Learned counsel for the plaintiff has argued that the payment of house tax as well as the electricity and water chargers by the vendor, Ram Murti, showed, prima-facie, that he was in exclusive possession of the land. He sold half share of the land in the capacity of a co-sharer. The purchaser is, therefore, entitled to retain possession over the entire land inasmuch as he has stepped into the shoes of a co-sharer.
4. Learned counsel for the defendant has, on the other hand, contended that the defendant is in exclusive possession of the entire property. He is running a flour mill (Atta Chakki). Boundary wall and the shops have been constructed by the defendant. He alongwith his brother Ram Murti was in possession of the land as joint owners and it has been shown as such in the Jamabandi for the year 1991-92. Ram Murti had sold half share in the land to his son, Sandeep Kumar, the plaintiff. Since Ram Murti had sold only one half share in the joint property, there was no transfer of any specific portion of the land. No partition has taken place so far. The mere fact that the house tax and also the electricity and water charges have been paid by Ram Murti would not establish that Ram Murti was in exclusive possession of the entire land. Reliance is placed on a decision of this Court in M/s R.C. Sood Co. v. M/s R. Kant and Company and Anr., (1996-2)113 P.L.R. 559, wherein it has been held that the plaintiff is not entitled to the grant of injunction where the suit is brought by him as a co-owner for restraining the defendants from raising construction and selling plots out of the undivided property. No steps were taken by the plaintiff to get the land partitioned. The defendants were in exclusive possession of the specified land.
5. Learned counsel for the plaintiff has placed reliance on a decision of this Court in Kamla Kumar Thapar v. Vinod Kumar Thapar, (1996-2)113 P.L.R. 64 wherein it has been held that the powers of the appellate Court are limited for interference with an order passed by the trial Court under Order 39 Rules 1 and 2. The appellate Court cannot upset an order passed by the trial Court without holding that the trial Court has erred in recording findings on the issues of prime-facie case, balance of convenience and irreparable loss. Similar view has again been expressed in Man Singh and Anr. v. H.S. Kohli and Ors., (1997-1)115 P.L.R. 643 and also in Bhupinder Singh v. Rana Kamarpal Singh, (1997-2)116 P.L.R. 513.
6. Reliance is also placed by the learned counsel for the plaintiff on a decision of the Supreme Court in M/s Gujarat Bottling Co. Ltd and Ors. v. The Coca Cola Co. and Ors., J.T. 1995 (6) S.C. 3. It has been held that the rent of an inter – locutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests :-
(i) Whether the plaintiff has a prima-facie case :
(ii) Whether the balance of convenience is in favour of the plaintiff: and
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for inter-locutory injunction is disallowed.
7. Relief by way of inter-locutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the inter-locutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in amount, if the uncertainty was resolved in his favour at the time.
8. Learned counsel for the plaintiff has, on the strength of the aforesaid decisions, argued that the plaintiff was entitled to the temporary injunction as was rightly granted by the trial Court. The appellate Court was not right in law in setting – aside the temporary injunction.
9. On a consideration of the matter, it is noticed that the plaintiff has purchased half share in the land from his father, who was a co-sharer. The defendant is the brother of the vendor. There is no evidence to show partition of the joint land, There is nothing further to show that any specific portion of the land was transferred by the vendor. When there is no partition, the second co-sharer shall have equal rights in the land. The mere fact that house tax and electricity and water bills were received in the name of Ram Murti, would not show that he was in exclusive possession. A co-owner has a right to use the joint property in a manner not inconsistent with the right of other co – owners. The defendant being a co-sharer cannot be prevented from using the joint land. No material has been brought on the record to show that the plaintiff is in exclusive possession of the entire land. He admittedly purchased only half share in the land from his father who is a co – sharer. The land has not yet been partitioned between the vendor. Ram Murti and the defendant. Mohal Lal. The appellate Court has taken a correct view in the matter. The trial Court was not right in law in assuming that the plaintiff was in exclusive possession of the entire land. It is a case of joint property, no specific potion of joint property could be sold unless and until partition was effected.
In the result, the revision petition is dismissed.