Case Summaries

Suit for Exclusive Possession only by way of a suit for Partition or not at all

1.) Jai Singh vs. Gurmej Singh, (2009) 15 SCC 747

Facts: The vendor being a co-owner in a joint property measuring 20 kanals, being 400/3723
share out of the total land measuring 186 kanals & 3 marlas vide a registered sale deed to the
appellants for a consideration of Rs 1,80,000.

Contentions of Respondent (other co-owner): They filed a suit for possession by way of pre-
emption pleading that the vendor had sold the land (20 kanals) out of the joint property.

According to him being the co-owner, he has a right to pre-empt the sale under S15(1)(b) of
the Punjab Pre-emption Act, 1913 (1 of 1913).

Contentions of the Defendant (the vendees): They stated that the pre-emptor (other co-owner)
has no superior right of pre-emption. Firstly the joint property containing the suit land had
been partitioned between the various co-owners much prior to the sale through an oral
partition and secondly the sale was out of the defined share of the vendor.

Relevant portions of the judgement: Thus dismissing the said appeal of the vendees before
the Supreme Court, it was held that,

a.) Paragraph 9, Point (2) - Possession of joint property by one co-owner is in the eye of the
law, possession of all even if all but one are actually out of possession.

b.) Paragraph 9, Point (3) - A mere occupation of a larger portion or even of an entire joint
property does not necessarily amount to ouster as the possession of one is deemed to be on
behalf of all.

c.) Paragraph 9, Point (4) - The above rule admits of an exception when there is ouster of a
co-owner by another. But in order to negative the presumption of joint possession on behalf
of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but
also hostile to the knowledge of the other as, when a co-owner openly asserts his own title
and denies, that of the other.
d.) Paragraph 9, Point (7) - Where a co-owner is in possession of separate parcels under an
arrangement consented by the other co-owners, it is not open to anybody to disturb the
arrangement without the consent of others except by filing a suit for partition.

e.) Paragraph 10 - It is thus evident that when a co-sharer is in exclusive possession of some
portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to
continue in its possession if it is not more than his share till the joint holding is partitioned. A
vendor cannot sell any property with better rights than himself. As a necessary corollary
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 a co-
sharer in the said land and the right to remain in its exclusive possession till the joint holding
is partitioned amongst all co-sharers.

2.) Qayamuddin & ors. vs. Jamil-ud-din & ors., (2013) 201 DLT 758 :

Facts : On 11 November, 1996, 3 appellants, co-owners to the property were forcefully

dispossessed by the defendants, without due process of law from property bearing No. B-93,
Main Road, Braham Puri, Delhi-110053 built up on an area of 175/180 sq. yds.

Contentions of Appellant (3 co-owners) : They filed a suit from which the current appeal
arose, "For Declaration, Possession under Section 6 of Specific Relief Act, Damages and
injunction" pleading that they had been forcefully dispossessed without due process of law,
from the joint property, by the defendants. It was expressly stated in Para 6 of the plaint that
the appellants being in joint possession with the defendants could not be dispossessed against
their will and consent and without due process of law because Section 6 of the Act does not
make any distinction between a joint possession and an exclusive possession.

It was further pleaded that the defendants no. 1 to 4 in the suit were planning to sell the
property and had also started raising illegal construction thereon and on the basis of the said
pleas the reliefs of injunction restraining the defendants from selling or parting with
possession of the property or from raising any construction thereon was claimed. Also
damages of Rs. 2,43,000 on account of forcible dispossession and of Rs. 5,000 per month
from the date of institution of the suit and till restoration of possession were also claimed.
Contentions of Defendants : They filed a suit under Order VIII Rule 11 of the CPC inter alia
pleading that the appellants had filed the suit under Section 6 of the Act and the relief as
claimed of in junction and damages could not be made in the plaint.

Reply By Appellants (to the above-mentioned application of the appellants) : They

appellants when filing the Reply did not deny the suit to be under Section 6 of the Act, but
pleaded that the other reliefs claimed were incidental or consequential to the relief of
Possession claimed under Section 6 of the Act.

Relevant Portions of Judgement:

The learned Additional Judge allowed the Defendants Application and held that Section 6 of
the Act is not for declaration of Rights over the property. Axiomatically the suit was
dismissed.

On appeal before The Honourable High Court of Delhi, it was held that -

a.) Paragraph 13, lines 5-9 - The suit for the said reliefs without the relief of possession
would not even be maintainable. As far as the relief of declaration is concerned, though the
title of the suit undoubtedly shows the same to be also for declaration, but the declaration
claimed is also of the forceful dispossession alleged being illegal, unwarranted and without
due process of law.

b.) Paragraph 14, lines 1-4 - The remedy under Section 6 of the Specific Relief Act is a
summary remedy against dispossession otherwise than in due process of law, where the only
question to be adjudicated is of such dispossession and without adjudicating any question of
title and which adjudication takes time.

c.) Paragraph 14, lines 9-10 - Sub Section (4) of Section 6 clarifies that dismissal of a suit
under Section 6 does not bear suing again for the relief of Possession on the basis of title.

3.) Ashok Kumar vs. Sushma Gupta, MANU/HP/1140/2014 :

Facts :The appellant is the defendant who is aggrieved by the Judgement and decree dated
23.05.2002 passed by the learned District Judge, Kangra at Dharamshala.
The predecessor of the respondents, namely Kesari Devi, instituted the suit for declaration
with permanent and prohibitory injunction, restraining the appellant/defendant from changing
the nature, digging foundations and raising constructions over the land known as 'Gair
Mumkin Sehan' entered in Khata No. 76 min, Khatauni No. 156 min, Khasra No. 942,
measuring 93.39 sq. mtrs. situated in Up-Mohal Tehsil Chowk, Mouza Ujjain, Tehsil and
District Kangra, H.P (hereinafter referred to as the land in dispute) and in case any
encroachment is effected, the same be got demolished and removed by grant of mandatory
injunction, on the pleadings that land in dispute is entered as 'Gair Mumkin Shan', jointly
owned and possessed by the parties and the plaintiff is simpleton and a widow whereas the
defendant is a very clever, shrewd and strong headed person and the defendant, since the
beginning of May 1990, started collecting material and is threatening to lay foundation,
change the nature and raise construction over the jointly owned and possessed property,
which he no right to do and if the construction is raised over any portion of the land in
dispute, the same deserves to be removed and demolished by grant of mandatory injunction.
During the pendency of the suit, the original plaintiff Kesari Devi died and her legal
representatives were substituted by the order of the trial court dated 11.8.1993.

Contentions of defendant/appellant: They contested the plaintiff's suit by filing a written

statement saying that there is a temporary arrangement between the parties, and the defendant
is in possession of the land in dispute by way of arrangement between the parties and has
raised foundation after getting an approval from the Municipal Committee, Kangra.

Contentions of the plaintiff: The plaintiff filed the replication the written statement of the
defendant/appellant and reiterated all the allegations made in the plaint and denied those of
the written statement.

Relevant Portions of the judgement of Trial Court: One of the points the Trial court took into
consideration in this case was 'whether there had been private arrangement between the
parties and the suit land is in the exclusive possession of the defendant as alleged.'
(Paragraph 5, Point 5)

After recording the evidence and evaluating the same the trial court passed the decree in
favour of the plaintiff.
Relevant Portions of Judgement of the Honourable High Court of Himachal Pradesh at
Shimla: Aggrieved by the Judgements and decrees passed by the Trial Court, the
appellant/defendant has come up before the High Court in his second appeal.

One of the points the High Court took into account was 'whether in law a co-owner or co-
sharer in joint possession is precluded from utilizing exclusively the joint holding to the
extent of less than his undivided share in such joint holding.' (Paragraph 8, Point 1)

Further the Honourable High Court held that -

a.) Paragraph 11 - The parties are not at variance that the land in dispute is recorded as 'Gair
Mumkin Sehan" and is jointly owned and possessed by the parties. This land is being put to
common use and purpose and, therefore, no co-sharer has right to raise construction over the
same without consent of the other co-sharers.
b.) Paragraph 12 - The learned Courts below have concurrently found the property to be joint
and further contention of the appellant that he was in possession of the land in dispute by
virtue of an arrangement has also been negated by both the learned Courts below. These are
pure findings of fact and cannot be interfered with by this Court in exercise of its jurisdiction
under Section 100 of the Code of Civil Procedure.
c.) Paragraph 13 - The appellant has led no evidence to show that the land in dispute is less
than his undivided share in such joint property and having failed to prove this fact, the Courts
have committed no illegality while passing a decree for mandatory injunction thereby
ordering the removal of the construction raised by the appellant.
d.) Paragraph 14 - In view of clear cut exposition of law, it can be safely concluded that the
appellant being only one of the co-sharers had no right to appropriate a part of the joint land
without the same having been partitioned and, therefore, he could not have raised
construction over the same. The learned Courts below have correctly appreciated the
pleadings and the evidence calling for no interference by this Court.

Hence the High Court held that there is no merit in the appeal of the appellant/defendant and
dismissed it in favour of the plaintiff.