- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 477 OF 2009. SHRI MOHAMAD HANIF DANKEWALA …...Petitioner. V/S SHRI ABDUL KADAR DANKEWALA …..Respondent. Mr. D. Pangam, Advocate for the petitioner. Mr.S. D. Lotlikar, Senior Advocate with Mr. P. S. Lotlikar, Advocate for the respondent. Coram:- N. A. BRITTO, J. Date:- 15th July, 2010. P.C. Heard. This is a defendant's writ petition and is directed against Order dated 27.2.2009 of the learned District Judge, Margao, by which the defendant has been restrained from dispossessing the plaintiff from the suit property and from interfering with the joint possession of the plaintiff until the - 2 - disposal of the suit. 2. There is no dispute that the plaintiff and defendant are brothers and the suit property admeasures 848sq.mts alongwith small house which was purchased by both the brothers by sale deed dated 10.8.1987. This is a third suit filed by the plaintiff. Plaintiff's first suit bearing Regular Civil Suit no. 6/1992/C for declaration, dissolution of partnership and account was dismissed. It appears that the defendant carries scrap business in the house existing in the said property. That business has been held to be the business of the defendant. Shri Lotlikar, learned Senior Counsel appearing on behalf of the plaintiff, has made a statement that plaintiff will not interfere with the said business of the defendant. The statement is accepted. 3. In the said civil suit bearing no. 6/92/C the plaintiff was held to be co-owner and the counter claim filed by the - 3 - defendant, as exclusive owner of the property was dismissed. 4. The plaintiff then filed another civil suit bearing Special Civil Suit no. 22/2006/A. This suit was filed for partition and for injunction. The application filed by the plaintiff for temporary injunction was dismissed by order dated 27/11/2006 and the suit for partition was also dismissed by judgment dated 14/3/2008. The present suit was filed by the plaintiff for permanent injunction to restrain the defendant from interfering with the joint possession and business activities of the plaintiff in respect of the suit house and suit property. Application for temporary injunction filed by the plaintiff was rejected by the learned trial Court by order dated 29/11/2008 observing that in absence of cogent evidence to show that plaintiff was in physical possession of the suit property, and in view of the stand taken by the plaintiff in Special Civil Suit no. 22/2006/A no prima facie case was made out by the plaintiff to grant the relief of temporary injunction, in absence of any evidence - 4 - of possession and running of the business jointly by the plaintiff, as granting of injunction would amount to decreeing of the suit at this stage. 5. The learned District Judge in her Order dated 27/2/2009 has taken note of the fact in Regular Civil Suit no. 6/1992/C there were findings that the plaintiff and the defendant were joint and lawful owners of the property which were upheld by the District Court. The learned District Judge, also observed that although the case of the defendant was that he was in exclusive possession since the year 1988, this by itself would not be sufficient to oust the plaintiff from the suit property, in that sense the plaintiff has made out a prima facie case for grant of temporary injunction. The learned District Judge also referred to the Case of I. Gouri and Others( AIR 1980 Kerala 94), wherein it was observed that wrongful possession or an ouster by a co-owner is itself an injury to the other co-owner and the latter would not be required to prove - 5 - any other injury to them in order to sustain action for injunction. 6. Shri Pangam, learned counsel appearing on behalf of the defendant, points out to the Order dated 27/11/2006 of temporary injunction in Special Civil Suit no.22/2006/A and submits that the plaintiff application for temporary injunction was refused in the said civil suit. Learned counsel Shri Pangam, next refers to the plaintiff's averments in Special Civil Suit no. 22/2006/A wherein the plaintiff had stated that the defendant was not allowing the plaintiff from the year 1992 to enter the suit property, and then to the observation of the learned Civil Judge in the said suit wherein it was observed that the plaintiff could not restrain the defendant from interfering in the suit property more particularly when the suit property was in possession of the defendant. Learned counsel submits that the District Judge without giving findings that both the parties were in joint possession of the suit property proceeded to grant application of the plaintiff to - 6 - restrain the defendant from dispossessing the plaintiff from the suit property. 7. On the other hand, Shri Lotlikar, learned Senior Counsel has submitted that the plaintiff is co-owner of the suit property and being so, the defendant may have no right to keep the plaintiff out of possession of the suit property. As already stated, Shri Lotlikar has conceded that there is already a finding as regards the scrap business that it belongs to the defendant and therefore learned Senior Counsel submits that the plaintiff will not interfere with the said business. Learned Senior Counsel also submits that the possession of the defendant is also to be considered as possession of the plaintiff , both being co-owners. Learned Senior Counsel submits that in the absence of any evidence it has got to be presumed that the property belongs to both brothers on 50:50 basis. - 7 - 8. In my view, the conclusion recorded by the learned District Judge calls for no interference of this Court in writ jurisdiction. The plaintiff might have not been able to obtain an injunction by virtue of Order dated 27/11/2006 in Special Civil Suit No. 22/2006/A which was also dismissed. The plaintiff might have not secured an order in his favour but he was not injuncted either from entering the suit property. But the fact remains that the suit property is purchased by both and the plaintiff has been declared to be a co-owner of the suit property. If that is so, I fail to understand on what principle the plaintiff can be deprived off from entering the property which is also owned by him. The plaintiff, therefore as a co-owner was entitled to enjoy the property purchased by him alongwith his brother, the defendant. Learned District Judge by impugned Order has only restrained the defendant from dispossessing the plaintiff from the suit property and from interfering with the joint possession, until disposal of the suit. Considering the facts of the case, in my view, therefore, the - 8 - impugned order calls for no interference, in extraordinary jurisdiction. I therefore, finds no merits in this petition and consequently the same is hereby dismissed. It is clarified that although the plaintiff may enter the suit property the plaintiff will not interfere with defendant's scrap business existing in the house, in the suit property. N. A. BRITTO, J. vn*