Final Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 18 CS SCJ 2367/24
ANJAN CHATTERJEE Vs. PRADEEP KUMAR CHATERJEE
& ANR.
19.12.2024
Present: Sh. Manmohan Goel, Ld. counsel for plaintiff.
Submissions in terms of the last order heard on
behalf of the plaintiff.
Be put up for order for today.
(KAPIL GUPTA)
Civil Judge-06 (Central)
Tis Hazari Courts
Delhi/19.12.2024
At 3:00 PM
Present: None.
ORDER
1. On the last date of hearing, clarifications were
sought from the plaintiff as the present suit had been filed
seeking injunction against co-owners without seeking the relief
of partition. Submissions heard on behalf of the plaintiff. Record
perused. Ld. counsel for the plaintiff had placed reliance upon
judgment of the Hon'ble High Court of Kerala in case titled as J.
Rajendran Pillai Vs. B. Bhasi & Ors., OP (C) No. 2487 of 2019
dated 25.01.2022 in support of his contentions.
2. It was argued on behalf of the plaintiff that the
plaintiff is in possession of the suit property and therefore, the
plaintiff need not seek the relief of partition to claim injunction
against the defendants who are the co-owners of the suit property.
It was further argued that the plaintiff need not seek partition in
-- 1 of 8 --
-2-
view of the ratio laid down by Hon'ble High Court of Kerala in
case titled as J. Rajendran Pillai Vs. B. Bhasi & Ors., OP (C) No.
2487 of 2019 dated 25.01.2022 in para no. 20.
3. It is the case of the plaintiff that grandfather of
plaintiff and defendant namely Sh. Sati Nath Chatterjee was the
sole and absolute owner of property bearing House no. 4899
situated at 85, Daryaganj, New Delhi-110002 measuring 19.7/9
yards X 16.13/36 yards (hereinafter referred to as ‘suit property’)
by virtue of Lease Deed dated 15.02.1940 and the suit property is
built upto three floors and a terrace. It is stated that after death of
the grandfather in the year 1952, the property devolved upon his
nine children, two of them being father of plaintiff and father of
the defendant, who were real brothers and had expired intestate.
It is submitted that after death of father of the plaintiff on
10.10.2011, the undivided portion is owned by the plaintiff and
the plaintiff alongwith his family is residing in the suit property
since the last about 20 years and defendant no. 2 is a permanent
resident of USA and is not staying in the suit property and even
defendant no. 1 has not resided in the suit property for the last
20-25 years. It is stated that however, defendants have retained
possession of some rooms in the suit property being two living
rooms on the ground floor, one latrine, one kitchen and two
temporary rooms in the courtyard of the ground floor. It is
contended that on 04.12.2024, the defendants came to the suit
property and after about 05 years informed that they are willing
to enter their portion of the suit property on the ground floor
-- 2 of 8 --
-3-
which was bonafidely allowed by the plaintiff but thereafter,
defendants started to enter other rooms on the ground floor of the
suit property which were not in their possession and upon
objection from the plaintiff, defendants attempted to break open
locks of other rooms on the ground floor of the suit property and
replace them with new locks and were even willing to handover
the new keys/ possession to other unknown persons, however, on
05.12.2024, plaintiff maintained his own locks/ possession of his
portion of the suit property. It is stated that on 06.12.2024,
defendants came outside the property and created ruckus and
again on 07.12.2024, defendants came outside the suit property
and clicked photographs and there is an apprehension that
defendants are trying to create third party interest in the suit
property. It is submitted that defendants are threatening the
plaintiff to forcefully throw him out of the suit property or to
dispose off the first floor portion of the suit property which is in
possession of the plaintiff. It has been prayed that a decree of
permanent injunction be granted to restrain the defendants from
unlawfully and forcefully dispossessing the plaintiff from the suit
property, decree of mandatory injunction be granted to restrain
the defendants from illegally and unlawfully selling out/
disposing off/ letting out/ mortgaging the suit property, decree of
permanent and mandatory injunction be granted to restrain the
defendants from illegally and unlawfully creating third party
interest or parting with possession of the suit property and to
restrain the defendants or their representatives from entering the
suit property without prior information or knowledge of the
-- 3 of 8 --
-4-
plaintiff and in presence of the plaintiff.
4. It is not in dispute that parties are the co-owners of
the suit property. It is the case of the plaintiff that he is in
possession of major portion of the suit property since long and
the defendants are in constructive possession of some portion of
the suit property. Moreover, it is also not the case of the plaintiff
that the portions in the suit property are divided/partitioned.
5. It has been held by the Hon'ble High Court of
Kerala in case titled as J. Rajendran Pillai Vs. B. Bhasi & Ors.,
OP (C) No. 2487 of 2019 dated 25.01.2022 as follows:
20. Back on the questions raised, to sum up, I am to
hold that there is no rigid or an unwavarable tenet
that no injunction can be granted against one co-
owner at the instance of other co- owner. In the
following instances, one co-owner can maintain a
suit for injunction to protect his co-ownership right.
(i) If one co-owner prevents the other from enjoying
the common property, the affected co-owner can
certainly approach the Court for appropriate relief
including prohibitory injunction to protect his co-
ownership right so that one co-owner can enjoy his
right over the common property without hindrance
to the other co-owner/co-owners.
(ii) one co-owner out of the many has no right to
build on which is joint property, without the consent
of others, notwithstanding that, the erection of such
building may cause no direct loss to other joint
owners or its stature can be termed as
`improvement', since on separation of sharers, one
co-owner's right to enjoy his share shall not be
hassled by such building.
(iii) a co-owner cannot be permitted to erect
building in the common property without the
consent of other co-owners, since one co-owner on
separation of his share has every right to enjoy his
-- 4 of 8 --
-5-
property even as barren land for having gentle
breeze or otherwise without a building therein.
(iv) one co-owner is not entitled to an injunction
restraining another co-owner from exceeding his
rights in the common property, absolutely and
simply, because he is a co-owner.
(v) before an injunction can be issued, the plaintiff
has to establish that he would sustain, by the act he
complains, which materially would affect his
position as co-owner or his enjoyment or
accustomed user of the joint property would be
inconvenienced or interfered with by the said act of
another co-owner.
(vi) What relief to be granted in such Suits shall be
decided by the court having jurisdiction guided by
consideration of justice, equity and good
conscience, after appraisal of the attending
circumstances, the nature of injury caused and on
weighing the balance of convenience.
(vii) If one co-owner feels or apprehends
obstruction in the matter of enjoyment of his co-
ownership right, he can very well institute a Suit
restraining the other co-owner from obstructing the
enjoyment within the sphere of co-ownership right,
without disturbing the similar right of the other co-
owner/co-owners, even without opting for
partition.”
6. In the above stated judgment of the Hon’ble Kerala
High Court, the relief of partition had already been sought by the
parties. Moreover, the reliefs claimed in the present suit by the
plaintiff are not covered in the ratio laid down by the Hon’ble
High Court of Kerala and therefore, such judgment does not
come to the aid of the plaintiff.
7. At this juncture, reliance is placed on the judgment
of Hon'ble High Court of Punjab and Haryana titled as Bachan
-- 5 of 8 --
-6-
Singh Vs. Swaran Singh, (2000) 126 PLR 416 wherein it has
been held as follows:
“15. On a consideration of the judicial
pronouncements on the subject, we are of the
opinion that:
(i) a co-owner who is not in possession of any part
of the property is not entitled to seek an injunction
against another co-owner who has been in
exclusive possession of the common property
unless any act of the person in possession of the
property amounts to ouster, prejudicial or adverse
to the interest of co-owner out of possession. (ii)
Mere making of construction or improvement of, in
the common property does not' amount to ouster.
(iii) If by the act of the co-owner in possession the
value or utility of the property is diminished, then a
co-owner out of possession can certainly seek an
injunction to' prevent the diminution of the value
and utility of the property.
(iv) If the acts of the co-owner in possession are
detrimental to the interest of other co-owners, a co-
owner out of possession can seek an injunction to
prevent such act which, is detrimental to his
interest.
In all other cases, the remedy of the co-owner out
of possession of the property is to seek partition,
but not an injunction restraining the co-owner in
possession from doing any act in exercise of his
right to every inch of it which he is doing as a co-
owner.”
8. Further, it has been held by the Hon'ble High Court
of Madhya Pradesh in case titled as Nanhe Khan Vs. Vajeer
Khan, SA No. 112/2022, decided on 08.07.2013 as follows:
7. Perusal of the evidence and material available on
record and the concurrent findings of both the
courts below, this Court is of the view that the
-- 6 of 8 --
-7-
plaintiff could not have succeeded by merely
seeking a decree of permanent injunction without
also claiming a decree for a declaration and
ownership and possession of the relief part of the
suit property. This Court is fortified in it's view by
the decision of single Bench of this Court reported
in ILR 2011 MP 2493 (Municipal Council Jaura v.
Chand Khan).
8. The claim of the plaintiff also fails on the ground
that he claimed relief of permanent injunction
against co-owner (defendants) without proving the
factum of partition as laid down by this Court in the
case of Roop Chand v. Indira Devi reported in AIR
1997 MP 200.”
9. In view of the above judgments, it is seen that the
rights of co-owners over undivided property are same and a co-
owner cannot seek an injunction of the nature as claimed in the
present suit against other co-owners without seeking the relief of
partition. The relief of partition has not been sought in the present
case. As observed earlier, the plaintiff is claiming to be the co-
owner of the suit property alongwith the defendants and the share
of the parties is undivided. Therefore, the plaintiff in the present
case cannot seek simplicitor injunction of nature as claimed in
the present suit against the defendants without seeking the relief
of partition. In view of such discussion, the present plaint is
liable to be rejected. Moreover, judgment of the Hon'ble High
Court of Kerala does not come to the aid of the plaintiff in the
facts and circumstances of the case as the reliefs sought in the
present case are not covered in the ratio laid down by the Hon'ble
High Court of Kerala and the present case is not a case where a
simplicitor injunction suit can be filed by the plaintiff without
-- 7 of 8 --
-8-
seeking the relief of partition.
10. In view of the above discussion, present plaint is
rejected U/O 7 Rule 11 (d) CPC being barred by law.
11. Decree sheet be prepared accordingly.
12. File be consigned to record room after due
compliance.
(Kapil Gupta)
Civil Judge-06/Central/
THC/19.12.2024
-- 8 of 8 --