Order 39 Rule 1 & 2 CPC | Mere Pendency Of Partition Suit Does Not Entitle Plaintiff To Injunction Restraining Reconstruction Of Residential Building: Kerala High Court

Kerala High Court, in a significant ruling dated 30 September 2026, held that a plaintiff in a partition suit is not automatically entitled to an order of interim injunction restraining the defendant from undertaking the reconstruction of a residential building on the disputed property.

A bench of Justice S. Manu observed that where a defendant seeks to reconstruct a house at the same location where an old, uninhabitable structure previously stood, the court must weigh the balance of convenience, particularly when the plaintiff’s claim is subject to proving disputed lineage and a share in the property.

The dispute involves a property originally belonging to the late Kunjan Chacko, who died in 1962. The respondent (plaintiff) initiated a suit for partition in 2021, claiming a share in the estate, which was dismissed by the trial court due to a failure to prove lineage and the suppression of material facts regarding a 1963 partition deed. While an appeal against this dismissal is pending, the respondent obtained an interim injunction from the Sub Court, Cherthala, preventing the appellants from constructing a new house on the site of a demolished family home.

The primary question before the court was whether the appellate court was justified in granting an order of interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC) against the reconstruction of a dwelling house by a co-owner during the pendency of a partition appeal. The court was also tasked with determining whether the failure of the respondent to establish a prima facie case at trial should preclude the grant of such equitable relief.

Plaintiff’s Failure to Establish Prima Facie Case

The court noted that the suit was dismissed at the trial stage after the plaintiff failed to establish his status as a legal heir. The bench observed that the respondent’s challenge to a partition settled over five decades ago was, at this stage, an "experimental litigation" that lacked a robust prima facie basis. The court held that without a strong foundation, the mere pendency of an appeal cannot be a ground for an absolute restraint on the defendants' right to enjoy their property.

Balance of Convenience and Irreparable Injury

The court emphasized that the 3rd appellant sought only to rebuild a residence that had become uninhabitable, at the exact site where the old structure stood. The bench noted that the respondent failed to establish that he would suffer any irreparable injury that could not be compensated later. "Learned Judge ought to have noted that the interest of the respondent is limited to a fractional share and in the event the suit is decided in his favour, appropriate relief can be granted to him and hence no irreparable injury will be caused," the Court observed.

"In the event of the respondent ultimately succeeding, his interest can be protected by appropriate allotment of his share or even by payment of the value of the share."

Rights of Defendants in Possession

The court further highlighted that the balance of convenience overwhelmingly favoured the appellants, as the 3rd appellant had no other land for a residential building and was currently forced to reside in rented accommodation. The bench concluded that the Sub Court had omitted to consider that the construction was a bona fide effort to provide housing on a family property that had been in the possession of the appellants' branch for decades.

The High Court set aside the order of the Sub Court and dismissed the application for an interim injunction. It directed the lower court to expedite the final disposal of the appeal, ensuring that the legal rights of the parties are adjudicated on merits without allowing the interlocutory stage to cause undue hardship to the occupants of the property.

Date of Decision: 30 September 2026