AIR 2004 ORISSA 5 ::(2004) 1 CLR 65 (ORI) ::(2003) 3 CivilCourtC 178 ::(2003) 4 RecCivR 501 ::(2004) 2 CurCC 547 ::2003 (2) OrissaLR 270 ::2003 (96) CutLT 246

Orissa High Court

Hon'ble Judge(s): A. S. Naidu , J

Civil P.C. (5 of 1908) , O.20 R.18— Suit for partition - Common passage kept joint by registered partition deed - Plaintiff one of co-owners taking resort to S. 39 of Specific Relief Act by filing suit for mandatory injunction against defendant, other co-owner for removing encroachment - Order for mandatory injunction passed - Plaintiff cannot again file suit for partition of common passage. Specific Relief Act (47 of 1963) , S.39— Hindu Law - Joint family property - Partition - Common passage kept for ingress and egress - When can be partitioned. Under the Hindu Law, both ancient and modern, a passage or a common road for ingress and egress is impartible and indivisible. If a particular passage is kept joint in a partition legally entered into, the presumption is that it would continue joint and undivided even after the partition. It cannot make any difference if the characteristic of a land is sought to be changed by one of the joint owners. The only exception, when a common passage can be partitioned is only by consent of all the parties. Law is well settled that if there is any breach of terms by any of the parties who tries or has raised construction by obstructing a common passage, the remedy open to the other side is a suit for mandatory injunction with a prayer for issuing direction to the party to restore the land to its original cond....