IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL NO.442 OF 2000 Between : Sangam Sailoo ... PETITIONER AND Sangam and another. …RESPONDENTS THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR SECOND APPEAL NO.442 OF 2000 JUDGMENT: This is a second appeal filed by the plaintiff whose suit was dismissed by trial court, but the lower appellate Court went further and passed a decree for partition in favour of the defendants. The plaintiff is substantially aggrieved by not only the dismissal of the suit for injunction, but also for grant of decree of partition. Hence the second appeal. 2. On 28.08.2000 when the second appeal was admitted, the following substantial question of law was formulated for consideration. “The substantial question of law that arises for consideration is whether the Court in a suit for perpetual injunction can pass a preliminary decree for partition? Hence, Admit.” 3. Heard both the counsel. 4. The suit is filed by the plaintiff alleging that the property of his father was partitioned among himself and the defendants several years ago; and that thereafter he purchased the present suit schedule property individually and the defendants are interfering with his possession of the same, therefore, he filed suit for grant of perpetual injunction. 5. The defendants filed written statement disputing the plaint averments and stated that there was no partition as alleged by the plaintiff; that in fact Ac.0.30 guntas of land belonging to the family was sold to one Bhuma Goud for a consideration of Rs.35,000/-; that out of the sale proceeds, the present suit schedule property was purchased; that the plaintiff being the elder one in the family, the property stands in his name; that there were disputes between the parties, which were settled in a panchayat at the village on more than one occasion wherein the plaintiff agreed that the present suit schedule property is joint property; that the defendants are also entitled to a share therein; and that as per the decisions of subsequent panchayat, a partition was agreed to share the property, including the suit schedule properties, to the defendants. 6. On the basis of the above pleadings, the following issues have been settled by the trial court for trial: 1. Whether the plaintiff is in possession of the suit lands? 2. Whether such possession of plaintiff is lawful? 3. Whether the defendants interfered into such lawful possession? 4. Whether the plaintiff is entitled for the relief of injunction? 5. To what relief? 7. Both sides lead evidence both oral and documentary, and on consideration thereof, the trial Court came to the conclusion that the plaintiff has not come to the Court with clean hands and equitable relief cannot be extended to him when he has suppressed the fact that there were ten panchayats between the parties; and that the plaintiff has executed a document accepting the share of the defendants in the said panchayat. The trial Court also gave a finding that the admissions of P.W.1 in the cross examination accepting that the plaintiff and defendants have a share in the suit schedule property is crucial for consideration. The relief of the injunction was denied based on the admissions of the plaintiff and the suit of the plaintiff was dismissed. 8. On appeal by the plaintiff, the lower appellate Court went to the consider of the entitlement of the plaintiff for the relief of injunction and it was also of the concurrent opinion that the plaintiff has not sought equitable relief with clean hands. 9. In this appeal also learned counsel for the appellant has not been able to explain the admissions of P.W.1 in the cross examination, at least to the extent of his admission that the suit schedule property was treated as joint family property as per the decision of the panchayat and thereby implying that the defendants have a share in the suit schedule property. 10. In view of the principle that that a co-owner cannot seek injunction against each other as each one of them is deemed to be the possessor of the property on behalf of other, till their shares are separated by a proper partition, the plaintiff/appellant is clearly not entitled to injunction as prayed for. Both the Courts, therefore, rightly declined to grant the decree of injunction in favour of the appellant. The lower appellate Court, however, went to a step further and granted a decree for partition. 11. Learned counsel for the appellant rightly contended that granting of such a decree, is beyond the scope of the suit itself. It is apparent that there was no issue with regard to partition nor otherwise, there was any issue with regard to the existence of joint family property. The decree passed by the lower appellant Court is, therefore, merely based upon alleged admissions of the plaintiff as P.W.1. It is also evident that the defendants have not filed any counter claim, nor the parties were focused to the aspect of partition with reference to the joint family property etc., and the suit was merely instituted for the purpose of adjudication for permanent injunction by the plaintiff. The lower appellate Court admittedly has proceeded to pass a decree with a view to shorten the litigation. But the same cannot be approved, as it would cause prejudice to the plaintiff. Neither there was any pleading nor any issue nor any evidence on the said aspect, and there was no occasion for plaintiff to explain the alleged admissions. I am, therefore, unable to appreciate the lower appellate Court’s view in passing of a decree for partition. The impugned judgment of the lower appellate Court is therefore, set aside. However, the suit for injunction filed by the plaintiff having been rightly dismissed by both the Courts below, the suit O.S.No.16 of 1996 filed by the appellant before the District Munsiff, shall stand dismissed with costs while setting aside the partition decree passed by the lower appellate Court. Plaintiff shall however be at liberty to seek relief of partition in an appropriate suit in accordance with law. Hence, the substantial question of law is answered in favour of the appellant. 12. Accordingly, the Second Appeal is allowed. There shall be no order as to costs. ___________________________ VILAS V.AFZULPURKAR,J JANUARY 27, 2011 YVL