Court reaffirms that no co-sharer can alienate or claim exclusive possession of a specific part of unpartitioned, joint property; mandatory injunctions for restoration of possession can be sought without separately pleading recovery of possession. Follows settled Supreme Court precedent and is binding on subordinate courts for property and civil litigation involving co-sharers.
Summary
| Category | Data |
|---|---|
| Case Name | AO/350/2025 of ARVIND JOSHI Vs MANJU JOSHI |
| CNR | UKHC010156542025 |
| Date of Registration | 06-10-2025 |
| Decision Date | 30-10-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | HON’BLE MR. JUSTICE ALOK MAHRA |
| Court | High Court of Uttarakhand |
| Precedent Value | Binding on subordinate courts |
| Overrules / Affirms | Affirms Supreme Court precedent |
| Type of Law | Civil Law (Property, Joint Ownership) |
| Questions of Law |
|
| Ratio Decidendi |
The Court held that until partition by metes and bounds, all co-sharers are deemed to be in possession of every part of joint property; none can claim exclusive ownership or transfer any specific portion. Possession by one co-sharer is, in law, possession for all unless ouster or exclusion is proved. An application for mandatory injunction seeking restoration of possession is sufficient for interim protection even if the plaint does not separately plead recovery of possession. The trial court erred in rejecting interim injunction on this ground. The appeal was allowed, status quo was directed, and expeditious disposal of the suit was ordered. |
| Judgments Relied Upon | K.K. Verma v. Union of India (1954) SCR 187; N. Khosla v. Rajlakshmi (2006) 3 SCC 605 |
| Logic / Jurisprudence / Authorities Relied Upon by the Court | Supreme Court precedents interpreting co-sharers’ rights; principle of collective possession absent partition. |
| Facts as Summarised by the Court | The appellants sought a mandatory injunction for restoration of possession of joint family property, which had been sold by some co-sharers to a third party without partition. The property was subject to a family settlement, and the dispute centered on whether such a transfer was valid and whether interim relief could be granted. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate civil courts in Uttarakhand |
| Persuasive For | Other High Courts and property benches dealing with co-sharer and joint property law issues |
| Follows | K.K. Verma v. Union of India (1954) SCR 187; N. Khosla v. Rajlakshmi (2006) 3 SCC 605 |
What’s New / What Lawyers Should Note
- Reaffirms the settled principle that no co-sharer can alienate a specific part of joint, unpartitioned property before partition.
- Clarifies that mandatory injunction for restoration of possession is maintainable even where the plaint does not specifically pray for “recovery of possession.”
- Emphasizes that interim protection via injunction can be granted based on the proprietary rights of co-sharers and the joint nature of the property.
- Reminds trial courts not to reject injunction applications merely for want of specific pleadings if the substantive right is otherwise established.
- Directs subordinate courts to expedite trials in such co-sharer property disputes.
Summary of Legal Reasoning
- The judgment begins by noting that the property in dispute remains joint and unpartitioned, as admitted by all parties.
- It applies the principle, affirmed by the Supreme Court in K.K. Verma v. Union of India and N. Khosla v. Rajlakshmi, that co-sharers are deemed to be in possession of every part of the joint property until final partition.
- Highlights that any alienation or transfer of a specific, demarcated portion of joint property by a co-sharer confers no exclusive possession or right, unless there is a valid prior partition.
- Explains that, therefore, the purchaser from some co-sharers cannot claim exclusive rights or possession to any specific part of the property.
- The trial court’s rejection of the application for interim injunction solely on the ground that recovery of possession was not specifically pleaded in the plaint is identified as an error. The Court holds that seeking mandatory injunction suffices for interim protection in these circumstances.
- Consequently, allows the appeal, restores status quo, and directs speedy trial in the suit.
Arguments by the Parties
Petitioner (Appellants):
- Suit was for mandatory injunction seeking restoration of possession of the property in dispute.
- Relied on a family settlement dated 15.11.2002, claiming the sold land fell in their exclusive share.
- In the alternative, argued that absent partition, the property remains joint and could not be lawfully alienated or transferred by any co-sharer.
Respondent No. 3:
- Purchased the property via sale deed in 2003; no objections were raised at that time.
- Name mutated in revenue records, conferring title and legitimate possession after the sale deed dated 21.11.2024.
Respondents No. 1 & 2:
- After the 2003 sale, respondent No. 2 constructed a residential house; the disputed portion is adjacent to a municipal road and has a higher market value.
Factual Background
The appellants filed suit for mandatory injunction seeking restoration of possession of joint family property that had been sold by certain co-sharers (respondent nos. 1 and 2) to a third party (respondent no. 3) without partition. The appellants relied on a previous family settlement. Subsequent to the sale, the purchaser mutated their name in revenue records and a residential structure was built. The trial court denied interim injunction on the ground that recovery of possession was not specifically pleaded in the plaint.
Statutory Analysis
- The Court analyzed Order 39 Rule 1 and 2 CPC regarding interim injunctions.
- Applied property law principles regarding joint/undivided property and the rights of co-sharers.
- No statutory interpretation “reading down” or “reading in” was conducted, but settled precedent was applied to the facts.
Dissenting / Concurring Opinion Summary
No dissenting or concurring opinions are recorded in the judgment.
Procedural Innovations
- Directed the trial court to decide the main suit expeditiously, preferably within one year from the date of production of the order.
Alert Indicators
- ✔ Precedent Followed – Existing Supreme Court law on the rights of co-sharers in joint property was affirmed and directly applied.