Civil Procedure Code, 1908, Order 39, Rule 1, 2 -- Temporary injunction - Co-sharers - Co-sharer who is in exclusive possession of separate parcel of land can definitely seek injunction against other co-sharers, who are not in possession of requisite land - Application rightly allowed...........
Mohammedan Law -- Inheritance - Deceased expired issueless and defendants 1 to 4 were sons of brothers of deceased - Therefore, they fall within ambit of residuary as defined u/s 65 of Mohammedan Law as per Category III descendants of a father and fall within Clause IX i.e Full Brother's son - Since the defendants are residuary as defined u/s 65 of Mohammedan Law and..........
Evidence Act, 1872, Section 112 -- DNA test - Suit for declaration as to co-sharer - Matters needs to be decided by way of judicial determination and cannot revolve around DNA test - Court is only to adjudicate on claim over property and has nothing is relevant for determining parentage of children - More so, it is by means of evidence, documentary and otherwise, which..........
Civil Procedure Code, 1908, Order 39, Rule 1, 2 -- Ad interim injunction - Co-sharer - Plaintiffs able to demonstrate their possession - Defendants cannot be permitted to claim denial of right to the co-sharer to enter into land especially when such co-sharer is already in possession of land to the extent of his share - Order of Appellate Court granting ad interim..........
Partition -- Not always necessary for a plaintiff in a suit for partition to seek cancellation of alienations, for the reasons viz. (a) alienees as well as the co-sharer are still entitled to sustain the alienation to the extent of the share of the co-sharer; (b) it may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred..........
Partition suit -- Inclusion of land on which construction existed - Cannot vitiate the entire partition proceedings, as constructed houses have been allotted to co-sharer who has constructed the same along with land allotted to him - Moreover, no prejudice has been caused by such an action to either of parties - Argument that entire partition proceedings are bad cannot be..........
Partition suit -- Plaintiffs were co-sharer of suit land - Land was still joint and it was never partitioned - Concurrent findings of facts on record that there was status of jointness and plaintiffs were entitled to decree of partition - No interference warranted in said findings...........
Specific Relief Act, 1963, Section 38 -- Permanent injunction - Co-owners - Co-owners were in settled separate possession of joint property by mutual understanding - Their separate possession of joint property was with each other's consent - Plaintiff/co-sharer had already raised construction over a portion of joint land in his exclusive possession - He thus, cannot..........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Cause of action - Suit for declaration and injunction without seeking relief of partition and possession is maintainable, as plaintiff has approached the Court with a claim that he is co-sharer and co-sharer are presumed to be in possession of entire property - Cause of action is very well shown in the..........
Specific Relief Act, 1963, Section 34, Proviso -- Suit for declaration without seeking relief of possession - Maintainability - Parties succeeded to property jointly after death of deceased - They are co-sharers - Every co-sharer is deemed to be in possession of every part of joint property - Plaintiff can pray for delivery of actual physical possession in a partition..........
