Case Note & Summary
The appellant, Namdeo Bhau Chavan, was the original defendant in a suit for injunction filed by respondent No.1, Shantabai Kundlika Chavan, who was the original plaintiff. The plaintiff sought to restrain the defendant from interfering with her possession over Gat No. 347, a property in Sidhewadi, Taluka Miraj, District Sangli. The trial court decreed the suit and granted an injunction in favor of the plaintiff, restraining the defendant from interfering with her possession. The defendant appealed to the lower appellate court, which dismissed the appeal. The defendant then filed a second appeal before the Bombay High Court. At the time of admission, two substantial questions of law were framed: (1) whether the decree passed by courts below is sustainable under Section 36A of the Prevention of Fragmentation Act, 1947, and (2) whether the courts below were correct in issuing an injunction against the appellant who is a co-owner of Gat No. 347. The appellant argued that the suit was barred under Section 36A of the Prevention of Fragmentation Act, 1947, and that being a co-owner, he could not be restrained by injunction. The respondent contended that the plaintiff was in possession and the defendant had no right to interfere. The High Court held that Section 36A of the Prevention of Fragmentation Act, 1947 does not bar a suit for injunction by a co-owner in possession against another co-owner. The court further held that a co-owner in possession can seek injunction against another co-owner who interferes without ouster. The concurrent findings of fact by the courts below that the plaintiff was in possession and the defendant failed to prove ouster were not perverse and did not warrant interference in second appeal. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Concurrent Findings - In second appeal, court will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. (Paras 2, 6) B) Property Law - Co-owner - Injunction - Possession - A co-owner in possession can seek injunction against another co-owner who interferes without ouster. The plaintiff proved possession and defendant failed to prove ouster. (Paras 4, 6) C) Prevention of Fragmentation Act, 1947 - Section 36A - Bar of Civil Suit - Section 36A does not bar a suit for injunction by a co-owner in possession against another co-owner. The provision applies only to suits for partition or transfer of fragmented holdings. (Paras 2, 6)
Issue of Consideration
Whether the decree passed by courts below is sustainable under Section 36A of Prevention of Fragmentation Act, 1947 and whether courts below were correct in issuing injunction against appellant who is co-owner of Gat No. 347.
Final Decision
Appeal dismissed. No order as to costs.
Law Points
- Section 36A of Prevention of Fragmentation Act
- 1947 does not bar civil suit for injunction by co-owner in possession
- co-owner can seek injunction against another co-owner who interferes without ouster
- concurrent findings of fact not interfered with in second appeal unless perverse.
