Under challenge is Ext.P4 order passed by the lower appellate court in C.M.A.No. 19/2013.
2. The petitioner instituted O.S.No. 694/2012 before the Sub Court, Ernakulam which is the suit for partition.
3. The petitioner as well as respondents 2 to 5 are the children of Late Terrance and the first respondent is his wife. It is admitted by the petitioner that the property having an extent of 56 cents belonged to Terrance. An extent of 10 cents were transferred by the late Terrance to the plaintiff. That is shown as B schedule pathway. The entire property is shown as A schedule and B schedule is the pathway provided for access to the property. The allegation in the plaint is that the petitioner is working abroad and the defendants are trying to alienate their share in the property. The complaint is that if the sale is effected and the possession is handed over to strangers, it will cause irreparable loss and injury to the petitioner. He had also a complaint regarding the tampering of the B schedule pathway by the defendants with ulterior motive. On the basis of these allegations, the plaint was laid seeking necessary reliefs. Along with the plaint, I.A.No.4361/2012 was filed for interim injunction. The trial court after hearing both sides, passed an order restraining defendants from transferring their share of the property and causing any obstruction of plaint B schedule pathway till the disposal of the suit.
4. The aggrieved defendants carried the matter in appeal as C.M.A.No.192013. The lower appellate court found that, that part of the interim injunction restraining the defendants from alienating their share cannot be sustained in law and therefore vacated that portion of the order of the trial court but however, ensured that the plaint schedule property is protected from any act of waste being committed by the defendants. The lower appellate court was also careful enough to preserve the right of way through the B schedule pathway.
5. Aggrieved by that portion of the order vacating the interim injunction with regard to the alienation, the plaintiff in the suit has come up before this Court.
6. The learned counsel appearing for the petitioner pointed out that the lower appellate court erred in both on facts and in law in vacating the order of the trial court with regard to the transfer of property involved in the suit. It is pointed out that if the defendants are allowed to transfer the property, they may induct strangers which will cause inconvenience to the petitioner and that is to be avoided.
7. The lower appellate court has noticed that the petitioner is only a co-owner and so also the defendants. The lower appellate court is right in its finding that a co- owner cannot be restrained from assigning his share of the property and no injunction can be granted in that regard.
Merely because the co-owner may assign the property to a stranger by itself is not a ground to seek injunction against him for which he has absolute right. The court below has only stated that the defendants cannot be restrained by an order of injunction from alienating their share as they are co- owners and entitled to do so.
7. The court below, as already noticed, has provided steps to preserve the property and also to ensure that the B schedule pathway is not tampered.
This Court finds no ground to interfere with the order of the court below. This petition is without merits and it is accordingly dismissed.
ds //True copy// Sd/- P.BHAVADASAN JUDGE P.A. to Judge