MODELS OF PLAINT IN PARTITION SUIT

IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 324 OF 2015, (ARISING OUT OF SLP(C) No.14024/2013)

Shasidhar & Others Vs Smt. Ashwini Uma Mathad & Anr.

Abhay Manohar Sapre, J.

Dated;January 13, 2015.

It was held: well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenary property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. his/her

Secondly, how the devolution of Interest consequent upon in the property his/her death took on place surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect

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Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner?

Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see “Hindu Law” by Mulla 17th Edition, Chapter XVI Partition and Reunion Mitakshara Law pages 493-547). 25.

IMPORTANT:

whether a co-owner of the property is entitled to seek an injunction against other co-owner who has been in exclusive possession of the entire or part of the property restraining him from making any construction in that part of the property.

3. In the case of common property the joint tenants or tenants-in-common, all of them are entitled to the said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of this own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the co-sharers is the possession of all of them. At the same time, it cannot be said that the person who has been in pessession of the property is holding the property not only for himself but also in favour of other co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the same. The possession of one of them is possession of all in the eye of law unless the person who has been in exclusive possession asserts his title in himself to the exclusion of the other co-sharer which may amount to ouster. We need not dwell upon this aspect of the matter in this revision petition. Suffice to say, it is for the co-sharer who claims or asserts ouster to prove the same. The point with which we are concerned is: Should a co-sharer abuse the joint property, or otherwise infringe the rights of his co-sharer, what is the remedy available to the other co-sharer? The remedies open to the other co-sharers are:-

(i) partition

(ii) declaration of right, damages and account of profits:

(iii) decree for joint possession: and

(iv) injunction.

There cannot be any problem with the first three remedies open to the co-sharers. The difficulty arises only in the case of remedy of injunction which can be availed of by one co-sharer and under what circumstances the co-sharer who is not in possession of the property can avail the remedy; of injunction.

4. The English Courts have considered it to be against the policy of law to entertain claims of injunctions between joint-tenants or tenants-in-common, a remedy being open to the parties in the form of partition. The Court interposes to restrain the party in possession in the case of coparceners, joint tenants and tenants-in-common, unless the act of co-sharer in possession amounts to destruction, waste or spoliation or unless the wrong doer is insolvent or incapable of paying to the other the excess of the value beyond his own share. If one tenant-in-common is doing merely what any other co-owner might do, the other cannot have an injunction merely on the ground that he does not choose to do so, since each tenant-in-common has a right to enjoy as he pleases. Therefore, a joint owner cannot prevent by injunction the carrying out of the necessary work by another co-owner in property held in common. But if the act amounts to destruction, of the thing itself is (or amounts to) an ouster. When there are acts of positive and actual destruction, an injunction has to be granted since such acts are not done in the legitimate exercise of the enjoyment arising out of the nature of the party's title to that which belongs to him and the other party.

Having regard to the rights of the co-owners, qua the common property, the question for consideration is whether one co-owner restraining another from enjoying the property which has been in his possession can be interfered with by granting an injunction A Full Bench of the Allahabad High Court in Chhedi Lal and Anr. v. Chhotey Lal, AIR 1951 Allahabad 199 after considering the various decisions held as follow:-

"As a result of the foregoing decision, it appears to us that the question of the right of co-sharers in respect of joint land should be kept separate and distinct from the question as to what relief should be granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The conflict in some of the decisions has apparently risen from the confusion of the two distinct matters. While, therefore, a co-sharer is entitled to object to another co-sharer exclusively appropriating land to himself to the detriment of other co-sharers, the question as to what relief should be granted to the plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The right to the relief for demolition and injunction will be granted or withheld by the Court according as the circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the evidence establishes that the plaintiff cannot be adequately compensated-at the time of the partition and that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if material and substantial injury will be caused to the defendant by the granting of the relief, the Court will no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise its discretion upon proof of circumstances showing on which side the balance of convenience lies. That the Court in the exercise of discretion will be guided by considerations of justice, equity and good conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused."

8. In Bhartu v. Ram Sarup (Supra) it has been held that a co-sharer who is in possession exclusively of some portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to continue to be in possession till the joint holding is partitioned. It has also been held that when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. The Full Bench re ferred to a Division Bench decision of Lahore High Court in Sukhdev v. Parsi and Ors., A.I.R. 1940 Lah. 473 wherein it was held that a co-sharer who is in exclusive possession of any portion of a joint Khata can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition and that other co-sharer's rights will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferees in the land in dispute will be that of co-sharers subject to adjustment at the time of partition and that a declaratory decree in nothing but a judicial recognition of the existing rights and such a decree does not tend to create any rights.

Punjab-Haryana High Court, Bachan Singh vs Swaran Singh on 6 March, 2000, Equivalent citations: (2000) 126 PLR 416

Author: T ChalapathI, Bench: G Singhvi, T Chalapathi

JUDGMENT T.H.B. Chalapathi, J.