1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 168 OF 2008 Shri Vallabh Anant Raut Dessai, aged about 36, married, businessman, resident of Assolda, Quepem-Goa. ... Petitioner versus Shri Sanjay Anant Raut Dessai, aged about 45, married, businessman, resident of Assolda, Quepem-Goa. ... Respondent Shri D. Pangam, Advocate for the Petitioner. Shri V. A. Lawande, Advocate for the Respondent. CORAM : N. A. BRITTO, J. DATE : 2ND JULY, 2009. ORAL JUDGMENT Rule. 2. By consent heard forthwith. 3. This Writ Petition is by the plaintiff in R.C.S. No.7/2008. Plaintiff's application for injunction was rejected by the trial Court and that order has been upheld by the first appellate Court. 2 4. The plaintiff and the defendant are brothers and sons of Anant Soiru Raut Dessai. The house in dispute belonged to their father but was in occupation of the defendant who wanted to build a storey on and above it. There was a suit filed by the defendant being R.C.S. No.63/2003. The said suit was dismissed with a finding that the properties of the said Anant had remained common and even during his life time the said Anant had not partitioned even orally any of his properties even amongst his sons. It appears that the said Anant had one more son besides the plaintiff. It was further held that the suit properties including the mills were common and undivided till that date. It appears that in the said Civil Suit the now plaintiff had taken a plea that there was an oral partition by which the mill was allotted to him and the house to the defendant. 5. Shri D. Pangam, learned Counsel on behalf of the Petitioner/Plaintiff referring to a Judgment dated 16-12-2006 in R.C.S. No.63/2003 submits that there is a clear cut finding given between the parties that the properties of late Anant have remained undivided and therefore the defendant as a co-owner of the house or the properties could not have extended the same house by building another storey on top or above it. 6. On the other hand, Shri V. A. Lawande, learned Counsel on behalf of the Respondent has submitted that the defendant was in exclusive possession of the said house and being so he was entitled to raise a storey on or above it. 3 Counsel concede that there were already pillars erected by the father. That would hardly make a difference. In this context, Shri Lawande has placed reliance on a decision of the Apex Court in Tanusree Basu and others v. Ishani Prasad Basu and others((2008) 4 SCC 791) wherein the Apex Court has held that a co-owner being in exclusive possession of the joint property would be entitled to injunction. That observation was made in the context of the case where Defendant No.1 was in possession of a flat No.201 at all material times and a padlock was put to it and the plaintiffs had contended that they were in joint possession and the padlock was directed to be removed. The facts of this case are entirely different. 7. In the case at hand, the defendant might have been in occupation of the ground floor of the house which admittedly is common property belonging to their father, and after his death, to his children, including the plaintiff. That being the case, the plaintiff on his own without the consent of the other co-owners could not have raised a storey over and above the said house as long as the said property or house had remained undivided. In this view of the matter, the plaintiff was entitled to injunct the defendant from proceeding ahead with the construction of the first floor and both the Courts below therefore ought to have granted an injunction to the plaintiff in that regard. 8. Consequently, the petition succeeds. Rule is made absolute in terms of prayer clause (A). The orders of both the Courts below are hereby set aside. 4 The defendant is hereby directed to maintain status quo as regards the said first floor pending the hearing and final disposal of the suit. N. A. BRITTO, J. RD