# Phool Kumar v. Shyam Singh & Ors

- **Citation:** (2023) 5 ILRA 1221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-05
- **Case number:** Matters Under Article 227 No. 11228 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-kumar-v-shyam-singh-ors-50162
- **Pages:** 13

## Headnote

A. Civil Law - Injunction - Status quo -
Where any property is held by several coowners, each co-owner has interest in
every part of the property, but such an
interest is qualified by similar interest of
other co-owners, and therefore, to that
extent, no damage or waste to the
property
or
illegitimate
use
of
the
property can be permitted by one of the
co-owner to the disadvantage of other coowners. (Para 28, 29)

Ownership
imports
three
essential
rights,
namely, right to possession, right to enjoy and
right to dispose. If an owner is wrongly deprived
of possession of his property he has a right to
be put in possession thereof. All the three
essentials are satisfied in the case of co-owner
of a land. All co-owners have equal rights and
co-ordinate interest in the property, though
their
shares
may
be
either
fixed
or
indeterminate. Every co-owner has a right to
enjoyment and possession equal to that of the
other co-owner or co-owners. Each co-owner
has, in theory interest in every infinitesimal
portion of the subject matter and each has the
right, irrespective of the quantity of his interest,
to be in possession of every part and parcel of
the property, jointly with others. (Para 30)

Jurisprudentially it is not correct to say that a
co-owner of a property is not its owner. He
owns every part of the composite property
along with others and it cannot be said that he
is only a part- owner or a fractional owner of
the property. The position will change only
when partition takes place. (Para 30)

B. If one co-sharer is being injuncted from
using and enjoying the land which falls in
his share also by virtue of being co-sharer,
such an aggrieved co-sharer can maintain
a suit for injunction. (Para 31)

In the plaint, the general pleading is w.r.t.
undivided shares and the only exception is para9 wherein allegations have been made that
there was a threat by the co-sharers namely the
respondents to change the nature of the land.
(Para 32)

The injunction could not have been maintained
and instead petitioner ought to have either
amended the relief clause in the plaint
demanding for partition or should have filed a
fresh suit for partition. Since the defendants
have taken the plea that they were not raising
any new construction activity and only some
repair work was going on in the old existing
construction where the defendants are residing,
such an act would not amount any destruction
or damage to the joint property, nor would
result in appropriation by the defendants of any
part of land in name of raising construction. In
these circumstances, the judgment passed by
the District Judge does not suffer from any
manifest error of law and facts. (Para 33, 34)

It is left open for the petitioner to either seek
amendment in the suit to add a relief for
partition or to file a fresh suit for partition and
also maintain an application of injunction afresh
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
in the event any new construction activity is
undertaken upon a joint land. (Para 35)

Writ petition disposed of. (E-4)

Precedent followed:

## Text

_Characters 0–39,921 of 44,166. This is a partial read: ask again with offset=39921 for what follows._

5 All. Phool Kumar Vs. Shyam Singh & Ors.
1221
court shall proceed to record the evidence
of parties after appearance of the accused
petitioner and recording therein statements
on charge and decide the questions with
reference to Section 138 of N.I. Act in
accordance with law.

19.

The
interim
order
stands
discharged.
----------
(2023) 5 ILRA 1221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 11228 of 2022

Phool Kumar ...Petitioner
Versus
Shyam Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aditya Kumar Singh, Sri Nipun Singh

Counsel for the Respondents:
Sri Syed Ali Imam, Sri Syed Ali Imam

A. Civil Law - Injunction - Status quo -
Where any property is held by several coowners, each co-owner has interest in
every part of the property, but such an
interest is qualified by similar interest of
other co-owners, and therefore, to that
extent, no damage or waste to the
property
or
illegitimate
use
of
the
property can be permitted by one of the
co-owner to the disadvantage of other coowners. (Para 28, 29)

Ownership
imports
three
essential
rights,
namely, right to possession, right to enjoy and
right to dispose. If an owner is wrongly deprived
of possession of his property he has a right to
be put in possession thereof. All the three
essentials are satisfied in the case of co-owner
of a land. All co-owners have equal rights and
co-ordinate interest in the property, though
their
shares
may
be
either
fixed
or
indeterminate. Every co-owner has a right to
enjoyment and possession equal to that of the
other co-owner or co-owners. Each co-owner
has, in theory interest in every infinitesimal
portion of the subject matter and each has the
right, irrespective of the quantity of his interest,
to be in possession of every part and parcel of
the property, jointly with others. (Para 30)

Jurisprudentially it is not correct to say that a
co-owner of a property is not its owner. He
owns every part of the composite property
along with others and it cannot be said that he
is only a part- owner or a fractional owner of
the property. The position will change only
when partition takes place. (Para 30)

B. If one co-sharer is being injuncted from
using and enjoying the land which falls in
his share also by virtue of being co-sharer,
such an aggrieved co-sharer can maintain
a suit for injunction. (Para 31)

In the plaint, the general pleading is w.r.t.
undivided shares and the only exception is para9 wherein allegations have been made that
there was a threat by the co-sharers namely the
respondents to change the nature of the land.
(Para 32)

The injunction could not have been maintained
and instead petitioner ought to have either
amended the relief clause in the plaint
demanding for partition or should have filed a
fresh suit for partition. Since the defendants
have taken the plea that they were not raising
any new construction activity and only some
repair work was going on in the old existing
construction where the defendants are residing,
such an act would not amount any destruction
or damage to the joint property, nor would
result in appropriation by the defendants of any
part of land in name of raising construction. In
these circumstances, the judgment passed by
the District Judge does not suffer from any
manifest error of law and facts. (Para 33, 34)

It is left open for the petitioner to either seek
amendment in the suit to add a relief for
partition or to file a fresh suit for partition and
also maintain an application of injunction afresh
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
in the event any new construction activity is
undertaken upon a joint land. (Para 35)

Writ petition disposed of. (E-4)

Precedent followed:

1. Awadh Narain Vs Additional District JudgeIVth, Jaunpur & ors., 2001 ALLJ 2551 (Para 4)

2. Radhay Shyam & ors. Vs Uma Shankar &
ors., 1997 ALLCJ 9 (Para 4)

3. Ram Prasad Tiwari Vs Shankur Tiwari, Manu /
U.P. / 0282/1964; (2003) 5 SCC page 150 (Para
4)

4. T. Lakshmi Pati & ors. Vs T. Reddy & ors. and
Girdhar Lal Vs Ram Lal, SCC Online J&K 693;
AIR 2019 J&K 1 (Para 4)

5. Virendra Kumar Vs A.D.J., Kannauj & ors.;
2014 (3) Current Civil Cases 43 (Para 7)

6. Chhedi Lal Vs Chhote Lal, AIR 1951 ALL 199
(Para 7)

7. K.P.M. Aboobucker Vs K. Kunhamoo & ors.,
1958 AIR Madras 287 (Para 7)

8. Robert Watson and Co. Vs Ram Chand
Dutt & ors., (1989-90) L.R. 17 I.A. 110 (Para
14)

9. Midnapur Zamindary Comp. Ltd. Vs Naresh
Narayan Roy & ors., (1923-24) L.R. 51 I.A. 293
(Para 15)

10. Paras Ram Vs Sherjit, (1887) ILR 9 All 661
(Para 14)

11. Lala Bishwambhar Lal Vs Raja Ram, (1869)
3 Beng. L.R. Appendix 67 (Para 15)

12. Shadi Vs Anup Singh, (1890) ILR 12 All 430
(Para 15)

13. Ram Lal Vs Jagan Nath, 1950 AWR 336
(Para 16)

14. Lala Sheo Nath Vs Lala Shiam Behari,
Second Appeal No. 445 of 1942, decided on
23.12.1948 (Para 16)
15. Abhai Singh Vs Gyan Singh, 1971 JKLR 326
(Para 26)

16. Chagan Lal Vs St. of Raj., 2022 Latest
Caselaw 9493 Raj. (Para 26)

17. Sant Ram Nagina Ram Vs Daya Ram Nagina
Ram & ors., AIR 1961 PH 528 (Para 26)

18. Kochkunju Nair Vs Koshy Alexander & ors.,
AIR 1999 SC 2272 (Para 28)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioner and Shri Syed Ali
Imam, learned counsel appearing for the
respondents.

2. Petitioner before this Court is the
plaintiff in the suit instituted for permanent
prohibitory injunction being O.S. No. 106
of 2020. In the suit, he moved a temporary
injunction application being paper no. 6C
along with an affidavit. After the written
statement was filed and so also the
objection to the pending 6C application by
the
defendant-respondents,
the
said
application was finally granted by the trial
court in favour of the petitioner with a
direction to the parties to maintain status
quo in respect of the suit property vide
order dated 16.3.2021.

3. However, upon a miscellaneous
appeal being filed under Order XLIII Rule
1(r) by the defendant-respondents, the said
appeal came to be allowed by the District
Judge, Gautam Buddha Nagar vide order
dated 24.11.2022 setting aside the order of
the status quo passed by the trial court.

4. The petitioner pleads that even in
case no partition of the suit property has
taken place in metes and bounds amongst
co-sharers, the Court in order to protect the
suit property and from being damaged by
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1223
raising any construction in any manner or
demolition exercise, direct the parties to
maintain status quo. Reliance has been
placed upon various judgements of this
Court : Awadh Narain v. Additional
District
Judge-IVth,
Jaunpur
and
others; 2001 ALLJ 2551, Radhay Shyam
and other v. Uma Shankar and others;
1997 ALLCJ 9, Ram Prasad Tiwari v.
Shakur Tiwari, Manu / U.P. / 0282/1964
(2003) 5 SCC page 150, T, Lakshmi Pati
and others v. T. Reddy and others and
Girdhari Lal v. Ram Lal; SCC Online J
& K 693 : AIR 2019 J & K Page 1.

5. Learned counsel for the petitioner
submits that it is because the defendantrespondents started raising construction
upon a joint land that the necessity arose to
institute the suit for permanent injunction.
He submits that the plaintiff would have
instituted the suit for partition, but he
instituted the suit for permanent injunction,
instead to ward off an eminent danger of a
part of land being appropriated by a cosharer.

6. Per contra, it is argued by the learned
counsel
appearing
for
the
contesting
respondents
that
the
petitioner
having
admitted the property to be the joint property,
the suit for injunction simpliciter was not
maintainable and the proper cause for the
plaintiff was to institute suit for partition in
which he would have claimed injunction also.
It is submitted that no injunction can be
granted against another co-sharer because
possession of one is possession of all the cosharers in equal measure and any injunction
order if passed would amount to direct
interference in the enjoyment of the property
by the other co-sharers.

7. Learned counsel for the respondent
has relied upon the judgement of this Court
in the case of Virendra Kumar v.
Additional District Judge, Kannauj and
others; 2014 (3) Current Civil Cases,
page 43, Full Bench of this Court in the
case of Chhedi Lal v. Chhote Lal, AIR
1951 ALL 199 and a judgement of Madras
High Court in the case of K.P.M.
Aboobucker v. K. Kunhamoo and
others; 1958 AIR Madras 287.

8. Before I proceed to deal with the
rival submissions made by the respective
parties, it is necessary to refer to certain
basic facts pleaded in the plaint and in the
written statement filed by the respondents.
The suit property is relating to khasra/plot
no. 112, in which the heirs except one
Kripal from the branch of Kanhaiya Lal
(the second son of Udai Singh) are
impleaded as defendant first set and heirs
from the branch of Natthu Singh (the first
son of Udai Singh) and one Kripal son of
Kanhaiya Lal have been impleaded as
defendant second set. In the plaint case
while seeking a decree of permanent
prohibitory injunction, a pedigree is given
of all the parties to the suit and the
common ancestor being Uday Singh. The
plaintiff-petitioner is also the son of
Kanhaiya Lal.

9. The suit property is stated to have
devolved upon the heirs of the Nathu Singh
and Kanhaiya Lal in equal measure i.e. 1/2
share.
The
dispute
arose
after
the
acquisition of an area measuring 1.138
hectares out of total area 1.846 hectares
from plot no. 112 by the State for New
Okhla Development Authority (NOIDA)
and thus only 0.7080 hectares land was left
with the parties. It is stated vide paragraph8, that parties to the suit are jointly
enjoying the property measuring 0.7080
hectares of plot no. 112 which is now a
minjumla number i.e. 112m.
1224 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Now the grievance raised is that
the defendants first set started deliberately
construction activity and thereby taking
possession of a specific piece of land in the
remaining area of 0.7080 hectares of plot
no. 112m. The petitioner, therefore, has
pleaded that in the absence of any partition
on such a unilateral act on the part of the
respondents to change the nature of the
land on spot and to take possession of a
particular piece of that land by raising
constructions was not permissible and
hence the suit.

11. When the suit was instituted, the
trial court considering the urgency granted
injunction order of status quo. The
defendants thereafter appeared in the suit
and filed written statement. In the written
statement, it has been pleaded that the
defendants were entitled to 1/2 share in the
land and of which mutual partition had
taken place some 30 years ago by way of
family arrangement and ever since then the
parties had made permanent construction of
their respective houses and were in
possession thereof. It is stated videparagraph-6 of the written statement that
every share holder had got separate share
and had fortified his land falling in his
share. But what is interesting to note is that
the area in plot no. 112m is being disputed
vide para-9 and the defendants seem to be
claiming larger area than what exactly
stated in the plaint case. The pleadings of
both the parties if are tested on the revenue
records, I find that in plot no. 112 minjumla
the total area shown is 0.7080 hectares in
which names of the parties have continued
in the revenue record as on 1428 fasli and
the New Okhla Development Authority is
also shown to be in possession of plot no.
112
minjumla
1.1380
hectares.
The
pleadings in paragraph-7 of the plaint show
total area to be 1.846 hectares as against the
area shown in plot no. 112m to be 1.1380
hectares. Nowhere it is pleaded either in the
plaint or in the written statement as to what
is the exact total area of plot no. 112m. If
the parties had agreed to the mutual
understanding
for
family
arrangement
preciously at some point of time then at
least there should not have been dispute
regarding the area that was left with the
tenure holders after the part of the land
stood
acquired
for
the
New
Okhla
Development Authority.

12. In view of the above, prima facie
it appears that no partition in metes and
bounds has taken place. However, it would
be a matter of evidence when the suit is
tried. The raising of construction upon a
joint land in the absence of partition, would
certainly be disturbing the nature of the suit
land and, therefore, with this plea, the
plaintiff sought injunction in the suit.

13. This Court as early as in the year
1950 had already held that ordinarily an
injunction should not be granted to a coowner against other co-owner.

14. The Full Bench decision in the
case of Chhedi Lal (supra) delivered on
16.11.1950 has not been overruled till date.
The Full Bench held that while it was not
an absolute rule to deny injunction to one
co-owner against another co-owner but it
can be granted when an exclusively coowner uses a unpartioned property to the
exclusion of right of others co-sharers. In
other words, the Full Bench accepted right
enjoyment of property by co-sharers inter
se, i.e. an interest and right of a co-sharer in
a property with those others is absolute, but
this rightly stands qualified by the interest
of other co-owners. The Full Bench
referred to the judgement of the Judicial
Committee in Robert Watson and Co. v.
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1225
Ram Chand Dutt and others; (1989-90)
L.R. 17 I.A. 110, which runs as under :

"It appears to their Lordships
that, in a case like the present, an
injunction is not the proper remedy. In
India a large proportion of the lands,
including many very large estates, is held
in un- divided shares, and if one
shareholder can restrain another from
cultivating a portion of the estate in a
proper and husbandlike manner, the whole
estate may, by means of cross-injunctions,
have
to
remain
altogether
without
cultivation until all the shareholders can
agree upon a mode of cultivation to be
adopted, or until a partition by metes and
bounds can be effected-a work which, in
ordinary course, in large estates would
probably occupy & period including many
seasons. In such a case, in a climate like that
of India, land which had been brought into
cultivation would probably become waste or
jungle, and greatly deteriorated in value. In
Bengal the courts of justice, in cases where
no specific rule exists, are to act according to
justice, equity and good conscience, and if, in
a case of shareholders holding lands in
common, it should be found that one
shareholder is in the act of cultivating a
portion of the lands which is not being
actually used by another, it would scarcely be
consistent with the rule above indicated to
restrain him from proceeding with his work,
or to allow any other shareholder to
appropriate to himself the fruits of the other's
labour or capital."

15 . The Bench also quoted the
observations
made
in
the
case
of
Midnapur Zamindary Company Limited
v. Naresh Narayan Roy and others;
(1923-24) L.R. 51 I.A. 293 :

"Where lands in India are so held
in common by co-sharers, each co-sharer is
entitled to cultivate in his own interests in a
proper and husband like manner any part
of the lands which is not being cultivated
by another of his co-sharers, but he is
liable
to
pay
to
his
co-sharers
compensation in respect of such exclusive
use of the lands. Such an exclusive use of
lands held in common by a co- sharer is not
an ouster of his co-sharers from their
proprietary rights as co-sharers in the
lands. When co-sharers cannot agree how
any lands held by them in common may be
used, the remedy of any co-sharer who
objects to the exclusive use by another cosharer of lands held in common is to obtain
a partition of the lands. No co-sharer can
as against his co-sharers, obtain any jote
right, a right of permanent occupancy, in
the lands held in common nor can he create
by letting the lands to cultivators as his
tenants any right of occupancy of the lands
in them."

14. Referring to the judgment of
Mahmood, J in Paras Ram v. Sherjit
(1887) ILR 9 All 661, the Full Bench
observed :

"The cases of the Allahabad High
Court on the point are far more numerous.
Paras Ram v. Sherjit (1887) ILR 9 All 661
is a decision by Mahmood, J. in a case
where a co-owner sought demolition of a
building constructed by a joint owner in
spite of his protest. The learned Judge
observed that as a pure question of law as
distinguished from the rules of equity the
plaintiffs may be entitled to the decree but
courts in India exercise the combined
jurisdiction of law and equity and cannot
disregard equitable doctrines in enforcing
remedies. He distinguished cases in which
a building is erected by a rank trespasser
upon a land of another and cases in which
the building is erected by a joint proprietor
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
on joint land without the permission of his
joint owners or in spite of their protest."

15.

On
the
question
of
demolition of structure if raised upon a
joint land by a co-sharer with the consent
of the other co-sharers, the Full Bench first
referred
to
the
judgment
in
Lala
Bishwambhar Lal v. Raja Ram (1869) 3
Beng. L.R. Appendix 67 and then Full
Bench judgment of 5 Judges in Shadi v.
Anup Singh (1890) ILR 12 All 430, and
observed thus :

"Sir Barnes Peacock in Lala
Bishwambhar Lal v. Raja Ram (1869) 3
Beng. L.R. Appendix 67 and concludes
that when a joint owner of land, without
obtaining the permission of his co-owners,
builds upon such land, such buildings
should not be demolished at the instance of
such co-owners, unless they prove that the
action of their joint owner in building upon
joint land has caused them a material and
substantial injury such as cannot be
remedied by partition of the joint land. This
case was considered by a Full Bench of five
Judges including Mahmood, J. in Shadi v.
Anup Singh (1890) ILR 12 All 430. The
suit was brought for an injunction within
three or four days of the defendant
commencing a construction upon joint
land. The defendant asserted exclusive
right to the land. The plaintiff obtained an
interim injunction but the District Judge on
appeal, in view of the ruling in Paras Ram
(supra), went into the question as to
whether the plaintiff could be compensated
by the defendant at partition. He found that
the defendant was building upon land
which was in excess of the share which
would come to him on partition and the
plaintiff could not therefore, be adequately
compensated. Sir John Edge, C.J., held that
the District Judge was wrong in going into
the question whether the excess land had
been appropriated and that on the finding
of fact given by him the injunction should
have been granted. It is obvious from a
reading of the judgment in Paras Ram
(supra)
that
it
did
not
justify
an
investigation into the question whether
more land than belonged to the co-sharer
was appropriated. The learned Chief
Justice observed that the defendant, instead
of going to the partition court, proceeded
to appropriate to himself lands in which
each of his co-sharers had an interest and
thus he proposed to exclude them from all
use and enjoyment of a portion of common
land. He went on to say. "We need not in
this case consider" what a civil court
should do if the defendant has erected "at
great expense buildings which a court of
equity might hesitate to order him to pull
down." This observation clearly saves the
power of the court under section 55 of the
Specific Relief Act as a court of equity to
regulate its discretion in accordance with
the provisions of that section in granting or
withholding injunction."

16. The Full Bench then proceeded to
further refer two decisions of Division
Bench of this Court in the case of Ram Lal
v. Jagan Nath; 1950 AWR 336 and Lala
Sheo Nath v. Lala Shiam Behari in
Second Appeal No. 445 of 1942, decided
on 23rd December, 1948.

"So far we have referred to the
decisions of the Allahabad High Court
before the amalgamation but two cases of
the new Court after the amalgamation need
to be noticed. One of these is reported in
Ram Lal v. Jagan Nath 1950 AWR 336
and is a decision by the present Chief
Justice. The other is a Bench decision,
unreported, in Lala Sheo Nath v. Lala
Shiam Behari in Second Appeal No. 445
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1227
of 1942, decided on 23rd December, 1948
by the present Chief Justice sitting with our
brother Chandiramani, J. In the former
case the learned Chief Justice enunciated
the principle that a co-sharer in exclusive
possession of joint land is not entitled to so
can change the character of possession as
to effect a complete ouster of the other cosharers. By adding more constructions to
those already existing a co-sharer cannot
be said to change the nature of his
possession or putting the land to use for
which it was not meant and the other cosharers are not entitled to have the
constructions removed. Such cases are to
be decided on a balance of convenience
and the courts have to see whether the acts
complained of are such that they were
detrimental to the interest of the co-sharers
and some thing to which they had not
already acquiesced before. The learned
Chief Justice also refers to a large number,
of
Allahabad
decisions
and
to
the
unreported case. This view is in full accord
with the older Avadh decisions to which we
have referred."

17. Then having discussed the law as
above Full Bench finally held as under :

"As a result of the foregoing
discussion, 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 cosharer, whose right in respect of joint land
has been a 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 distinct matters. entitled to
object to While therefore a co-sharer is
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 plain till 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 which side the
balance of convenience lies. That the court
in the exercise of its 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 injunction should be granted or
refused."

18. In view of, the above exposition
of principle of law on grant of injunction
to a co-sharer, entire discretion to grant
injunction to other co-sharer is held to
be dependant upon the facts of each case
and the testing point is, as to whether
one co-sharer is trying to appropriate
unpartitioned
land
by
raising
construction to the disadvantage of the
other co-sharer.
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In the case of Sant Ram Nagina
Ram (supra), Punjab and Haryana High
Court held that in the absence of any suit
for partition in respect to joint holding
while it is true that one co-sharer cannot be
permitted to usurp the best piece of land
without the consent of the other co-sharer.
The
Court
summarized
the
legal
proposition regarding joint possession of
the property vide paragraph-14 thus :

"14. The Weight of the authorities
and the principles which have been
discussed propositions:

(1) A co-owner has an interest in
the whole property and also in every parcel
of it.

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

(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.

(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 de- nies that of the other

(5) Passage of time does not
extinguish the right of co-owner who has
been out of possession of the joint property
except
in
the
event
of
ouster
or
abandonment.

(6) Every co-owner has a right to
use the joint property in a husband like
manner not inconsistent with similar rights
of other co-owners.

(7) Where a co-owner is in
possession of separate parcels under an
arrangement consented to by the other coowners, it is not open to any one to disturb
the arrangement without the consent of
others except by filing a suit for partition.

(8) The remedy of a co-owner not
in possession, or not in possession of a
share of the joint property, is by way of a
suit for partition or for actual joint
possession, but not for ejectment. Same is
the case where a co-owner sets up an
exclusive title in himself.

(9) Where a portion of the joint
property is, by common consent of the coowners, reserved for a particular common
purpose, it cannot be diverted to an
inconsistent user by a co-owner; if he does
so, he is liable to be ejected and the
particular parcel will be liable to be
restored to its original condition. It is not
necessary in such a case to show that
special damage has been suffered."

20. In the case of Awadh Narain
(supra), this Court had held that if one of
the
co-sharers
intended
to
raise
construction without there being any
partition between the co-sharers in metes
and bounds, i.e. demarcating exclusively
their rights shares in the property, then
injunction should not be denied to a cosharer against the other merely on a
premise that construction would be raised
at the risk of the person concerned and it
would be pulled down at the time the
decree is passed. The Court, therefore, held
that if any co-sharer is raising construction
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1229
on an undivided and unpartioned land, he
can be injuncted from doing so.

21. In the case of Radhey Shyam
(supra), the Court referred to the judgment
of Justice Watch H AIR 1960 ALL 322,
that injunction cannot be granted against a
co-sharer for a wrongful use of a joint land
so the issue decided by the Division Bench
was that the joint owner had no right to
deal with the joint property without consent
of the other joint owner. In turn, the learned
Judge relied upon a Division Bench of this
Court, ILR 18 ALL 115 and then the Court
referred to the judgement of the Punjab &
Haryana High Court (supra).

22. In the case of T. Lakshmipathi &
others (supra), it was held that one coowner cannot be permitted take exclusive
possession of the property nor can be
permitted
to
commit
waste
or
do
illegitimate use of a joint property. A right
of the co-sharer to enjoy the property
jointly and exclusively has been recognized
and to that extent right to protect
possession has also been recognized. The
interest in the property of one stands
fortified by another co-sharer and to that
extent nobody can be permitted to take
exclusive possession of a particular area by
way of illegitimate use thereof or may be
changing the nature of the land.

23. In this above case, the controversy
had arisen from a decree passed by the
Court for eviction under the ANDHRA
PRADESH BUILDINGS (LEASE, RENT
AND. EVICTION)
CONTROL
ACT,
1960. The rent controller in that case had
directed for eviction of the tenant namely
respondent nos. 2 and 3. In the SLP and
hence the persons inducted to be in
possession were held to be liable for
eviction. The appeal was dismissed against
the said decree by the Principal Senior
Civil Judge affirming the order of the rent
controller. In the revision that was filed
before the High Court, though it got
wrongly recorded as unregistered sale deed
in favour of applicant nos. 3 to 5 in the SLP
and then applicant nos. 1 and 2 and so there
was no effect of transferring title to that,
but the counsel appearing for the respective
parties agreed before the Supreme Court
that those sale deeds were registered one.
Thus, it was pleaded before the High Court
that the appellant being transferree in
possesion by virtue of the sale deed also
acquired status of the co-owner and so they
could not be the tenant of respondent no. 1
who was just one of the other co-owners and
so it was also pleaded that the landlord and
tenant relationship was found fundamentally
misconceived and the suit deserved to be
dismissed. It is in that background that a plea
was taken before the High Court and the
Supreme Court that remedy of a co-owner
was to file a suit for partition against another
co-owner in possession.

24. The rival submissions before the
Court in the above case where :

"A. If the appellants were held to
be co-owners in possession of the property,
so the suit for eviction would not lie; and
on behalf of the decree holder:

B. Since appellants were inducted
by the tenant in the suit property without
his consent, they deserved eviction."

25. It is in this above background of
legal plea that question in that case was
considered about the injunction inter se
parties. Vide paragraph-25 held thus :

"In the facts and circumstances of
the case, no defence or shelter is available
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
to the appellants behind the plea that they
have acquired interest of some of the coowners. The law as to co-owners is well
settled. Where any property is held by
several co-owners, each co-owner has
interest in every inch of the common
property, but his interest is qualified and
limited by similar interest of the other co-
owners.
One
co-owner
cannot
take
exclusive possession of the property nor
commit an act of waste, ouster or
illegitimate use, and if he does so he may
be restrained by an injunction. A co-owner
may, by an arrangement, expressed or
implied, with his other co-owners, possess
and enjoy any property exclusively. Such a
co-owner can also protect his possession
against the other co-owners and if he is
dispossessed by the latter, he can recover
exclusive possession. (See Jahuri Sah &
Ors. v. Dwarika Prasad Jhunjhunwala &
Ors., (1966) Supp SCR 280). It is beyond
any controversy that on the death of late P.
Narayana Reddy, his rights devolved upon
the several heirs including respondent no.1.
The respondent no.1 is the only male
person in the body of the co-owners, all
others being women. It may be for this
reason, or otherwise, that the respondent
no.1 was in possession of the property,
through
tenants,
realizing
the
rent
peacefully and with the consent, expressed
or implied, of other co- heirs of late P.
Nithyananda
Reddy.
So
far
as
the
respondents no.2 and 3 are concerned, by
operation of Section 116 of the Evidence
Act, they were estopped from challenging
or denying the ownership of the respondent
no.1 and his rights in the tenancy premises.
As held in Vasudeo v. Balkishan, (2002) 2
SCC 50, the rule of estoppel between
landlord and tenant continues to operate so
long as the tenancy continues and unless
the tenant has surrendered possession to
the landlord. The estoppel would cease to
operate only on the tenant openly restoring
possession by surrender to the landlord.
Neither the respondents no. 2 and 3 nor
their successors in interest or the persons
claiming under them could have denied the
title of the respondent no.1 during the
continuance of the tenancy and even
thereafter
unless
they
had
restored
possession over the tenancy premises to the
respondent No.1. Looking at the status of
the appellants whether as co-owners or as
persons inducted in possession by the
tenants they have no legs to stand on. If
other
co-owners
could
not
have
dispossessed
the
respondent
no.1
or
demolished the property without the
consent of respondent no. 1, it is difficult to
conceive how their transferees could have
demolished the tenancy premises and
raised their own construction over the land
on which the tenancy premises stood
earlier."

26. In the case of Girdhari Lal
(supra), the Court was faced with the legal
issue as to whether a co-sharer can seek
injunction raising other co-sharer from
using joint property or raising construction
thereon without seeking relief of partition.
The Court after referring to the facts and
discussing various judgement has referred
to the judgement in the case of Abhai
Singh v. Gyan Singh 1971 JKLR page
326 in which the Court had observed that
one co-sharer cannot be permitted to raise
construction upon a joint land without the
consent of other may be such a construction
may not cause direct loss to other joint
owners. The learned Judge also referred to
the judgement of the Rajasthan High Court
in Chagan Lal v. State Of Rajasthan:
2022 Latest Caselaw 9493 Raj and also
Division Bench of the Punjab and
Haryana in Sant Ram Nagina Ram v.
Daya Ram Nagina Ram and others; AIR
5 All. Phool Kumar Vs. Shyam Singh & Ors.
1231
1961 P H 528. The Court thus ultimately
held that if the property was found to be a
joint property and that encroachment was
being made upon the defendants then the
trial court ought to have decreed the suit for
injunction.

27. Considering the judgement in the
aforesaid cases, while I find there to be no
dispute that where any property is held by
several co-owners, each co-owner has
interest in every part of the property, but
such an interest is qualified by similar
interest of other co-owners, and therefore,
to that extent, no damage or waste to the
property or illegitimate use of the property
can be permitted by one of the co-owner to
the disadvantage of other co-owners.

28. A co-ordinate Bench of this Court
in the case of Virendra Kumar (supra)
was confronted with this law point as to
whether suit simpliciter for permanent
injunction would be maintainable and
entertainable if instituted by one co-sharer
against the other co-sharer and the interim
injunction in that case was granted by the
trial court to maintain status quo. The order
of the trial court was set aside by the Court
in appeal and hence the co-sharer plaintiff
came to the High Court. The controversy in
that case was that though the property was
joint but the one brother had sold out a part
of the property for consideration of Rs.
40,000/- in favour of the respondent nos. 2
and 3 and so the grievance was that such
transfer of the property by sale without
there being partition thereof was not
permissible. It also transpired that in the
said case that no suit was filed questioning
the sale deed and, therefore, the purchaser
also claimed to be a co-sharer. The Court
therefore held that without a suit for
partition injunction could not have been
granted, relying upon a judgement of the
Supreme Court in the case of Kochkunju
Nair v. Koshy Alexander and others;
AIR 1999 SC 2272. Supreme Court in the
case of Kochkunju Nair (supra) was
dealing with a right of Kudikidappukaran
claimed
by
one
of
the
co-owner.
Kudikidappukaran is a right to build
dwelling house. Interpreting the rights of
the co-owners in respect of the joint
property vide paragraph-9, 10 & 11, the
Court had held thus :

"9. Ownership imports three
essential
rights,
namely,
right
to
possession, right to enjoy and right to
dispose. If an owner is wrongly deprived of
possession of his property he has a right to
be put in possession thereof. All the three
essentials are satisfied in the case of coowner of a land. All co-owners have equal
rights and co-ordinate interest in the
property, though their shares may be either
fixed or indeterminate. Every co-owner has
a right to enjoyment and possession equal
to that of the other co-owner or co-owners.
Each co-owner has, in theory interest in
every infinitesimal portion of the subject
matter and each has the right, irrespective
of the quantity of his interest, to be in
possession of every part and parcel of the
property, jointly with others (vide Mitra's
Co-ownership and Partition, Seventh Edn.).

10. A three-Judge Bench of this
Court has held in Sri Ram Pasricha v.
Jagannath, AIR 1976 SC 2335 that a coowner owns every part of the composite
property
along
with
others.
lowing
statement of law has been made by their
Lordships (Para 29):

"Jurisprudentially
it
is
not
correct to say that a co-owner of a property
is not its owner. He owns every part of the
composite property along with others and it
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be said that he is only a part-owner
or a fractional owner of the property.
exist". The position will change only when
partition takes place."

11. To hold that a co-owner is not
an owner and his possession is not the
possession envisaged in Section 2(25) of
the Act is in conflict with the correct legal
position. If a co-owner wants to erect
homestead on the land he is free to do so.
When a division of the co-ownership
property takes place the co-owner who put
up the homestead can claim that the said
portion may be allotted to his share. Courts
would ordinarily grant such equitable relief
when claimed. [vide Nutbehari Das v.
Nanilal Das, AIR 1937 PC 611 If the other
co-owner objects to the construction of a
homestead he can get the co-ownership
property divided by partition, and if the
other party is not readily willing to that
course it is open to him to get it partitioned
through suit. These are various remedies
available to the co-owner in respect of his
land. Merely because he has to re- sort to
such steps it cannot be said that a co-owner
cannot erect a homestead on his land."

29. In the case of Ram Prasad
Tiwari (supra), a co-ordinate Bench of this
Court has held that if one co-sharer is being
injuncted from using and enjoying the land
which falls in his share also by virtue of
being co-sharer, such an aggrieved cosharer can maintain a suit for injunction.

30. In the light of the authorities
discussed,
and
applying
the
above
principle to the facts of the case, I find
that in the plaint, the general pleading is
with regard to undivided shares and the
only exception is paragraph-9 wherein
allegations have been made that there was
a threat by the co-sharers namely the
respondents to change the nature of the
land.

31. In the background of these
pleadings, I find that there is no pleading
with regard to any construction activity
initiated by the defendants-respondents in
the suit and the Relief-A in the Final
Relief Clause is to the effect that without
partition the respondents be restrained not
to change the nature of land.