No injunction when the plaintiff’s share is 6 pies and 3.125% in the entire suit property, and when the total undivided share of the other co-sharers including the plaintiffs share is 49%

The Chief Justice of India, Justice Shri Dipak Misra during the 24th Foundation Day Function of the National Human Rights Commission (NHRC), in New Delhi on October 12, 2017 (cropped).jpg

The Chief Justice of India 

No injunction when the plaintiff’s share is 6 pies and 3.125% in the entire suit property, and when the total undivided share of the other co-sharers including the plaintiffs share is 49% . Injunction order – Trail court granted – Hight court affirmed – Apex court held that The original plaintiff i.e., respondent No.1, holds 6 pies i.e., more than 3% in the suit property. Other defendants also have shares in the property which are specifically mentioned and out of which Kantilal has further purchased 2.1% shares of one Babubai and thus, Kantilal, the predecessor in title , was having approximately 51% share. Thus, the other persons including the original plaintiff, are holding 49% undivided share in the entire property. It is informed that one or two co-sharers have also filed suits against the present appellant. Thus, the plaintiffs in the suit may be having 3.125% share in the entire property but the total of other co- sharers is 49% and hence, not at all negligible. The appellant has challenged the title of the respondent/original plaintiff and also the document of 7.10.1965 is disputed. However, it is a matter of evidence. At this stage, the share of the appellant and the other co-sharers comes to nearly 50% and, therefore the appellant alone cannot be allowed to transfer, alienate or develop the suit property even to the extent of some share unless the suit property is partitioned especially, when he is predecessor-in-title who was a co-sharer had abandoned the property to him without the consent of other co-sharer earlier. Thus, though the share of the present plaintiff is 6 pies and 3.125% in the entire suit property, the total undivided share of the other co-sharers including the plaintiffs share is 49% and hence, i am of the view that the order passed by the learned trial Judge is correct and hence, not to be disturbed. The order of injunction is concerned, we are of the view that an adequate analysis was not made by the High Court and, therefore, the said order is set aside. The learned Single Judge while considering the proposals may look into various aspects and pass a reasoned order keeping in view the concept of � prima facie case� , balance of convenience and irreperable injury.