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CASE NO.: Appeal (civil)  1767 of 2008

PETITIONER: Tanusree Basu & Ors

RESPONDENT: Ishani Prasad Basu & Ors

DATE OF JUDGMENT: 05/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO        1767                   OF 2008 [Arising out of  SLP (Civil) No. 13852 of 2007]

S.B. SINHA, J :          1.      Leave granted.

2.      The parties hereto are co-sharers.  A suit was filed for partition.   Admittedly they had entered into a development agreement.  The properties  which were in possession of the owners were described in Schedule A of the  plaint; whereas the properties which were subject matter of the development  agreement were described in Scheduled B thereof in the plaint filed by the  appellant in the Court of 8th Civil Judge (Sr. Division), Alipore registered  Title Suit No. 9 of 2004.  In terms of the development agreement, three flats and parking spaces  for three cars had been allotted to the parties.  An application for grant of  injunction in respect of Schedule A property restraining the respondents  from handing over the owners the allotted flats and from selling out any flats  in the premises in question, was filed in the suit on or about 14.03.2004  wherein it was inter alia averred:

"That at present the plaintiffs and the defendant  no. 1 to 6 are occupying 3 flats and 3 garages at  premises no. 46A, Purna Chandra Mitra Lake,  Kolkata \026 700033, which are also undivided  property."

       It was furthermore averred:

"\005That at present the plaintiffs have 93/240,  undivided share, the legal heirs of late Pinaki  Prosad Basu (the defendant No. 2 to 6) have  54/240, undivided share and the defendant no. 6  have 93/240, undivided share of the schedule ’A’  and ’B’ properties.  Although by amicable  agreements the parties are in possession of  separate flats of schedule ’B’ hereunder, there has  not been any demarcated possession according to  the respective share of the parties."

3.      However, yet again on 11.04.2005, the plaintiffs filed an application  for grant of injunction in respect of the schedule B property seeking to  restrain the respondents from transferring or letting out any portion of the  land to any third party.

       An order of injunction was issued on the said application dated

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05.03.2004 but the same was refused in respect of the application dated  11.04.2005 by an order dated 16.07.2005.  An appeal was preferred  thereagainst which was marked as F.M.A. No. 988 of 2005.   

4.      The said appeal was dismissed by an order dated 10.08.2006 for  default as process fee was not deposited.  It was, however, restored to its  original file.  Immediately thereafter, however, the appellants allegedly put a  padlock in flat No. 201 which was in occupation of the first respondent.  On  or about 14.08.2006, an application was filed by him before the 8th Civil  Judge (Senior Division) Alipore inter alia praying for:

"9. Your petitioner states that the plaintiff by show  of muscle and at the instance of musclemen in  their side causing obstruction to use and enjoy the  flat no. 201 of the ’B’ schedule property to your  petitioner.  Your petitioner is a bachelor and aged  about 72 years and has become totally perplexed as  he has not been allowed to use and enjoy in his  own property.  Your petitioner further states that  after construction by the promoter three flats and  three car parking spaces allotted to the owners of  three flats and as has been observed by the ld.  Court but the plaintiffs carrying a fig to court’s law  and order causing obstruction, inconvenience to  your petitioner to use and enjoy the flat no. 201 of  the ’B’ schedule property by putting padlock and  keeping sundry household articles."          5.      By an order dated       21.09.2006, a Division Bench of the Calcutta High  Court while disposing of FMA No. 988 of 2005 directed as under:

"In such view of the matter, we dispose of this  appeal and the application by holding that the  parties to the suit shall be entitled to maintain their  respective possession in the suit properties as on  today without being entitled to make any change in  the nature and character of the same.  It is,  however, made clear that if there be any pending  application before the Trial Court by alleging that  since after making of the impugned order by the  trial court, a change has been made by some of the  parties in respect of the respective possession by  force and/ or illegality, then the trial court will be  entitled to deal with the said application and to  pass an appropriate orders irrespective of the  above order of disposal of this appeal."

6.      By an order dated 21.11.2006, the learned Civil Judge allowed the  application dated 14.08.2006 holding:  "From the order of the Hon’ble High Court it is  palpably clear that full liberty has been given to  the Trial Court to dispose of the application of the  defendant no. 1 filed u/s 151 CPC in accordance  with the law.  It is already stated in my foregoing  discussion that the materials on record go to show  that defendant no. 1 is in possession of flat No. 201  of Schedule ’B’ property while the plaintiffs are  contending that they are in possession of the said  flat.  Considering the objection it is crystal clear  that the defence version that the plaintiffs illegally  put padlock and kept some sundry articles in the  said flat is proved.

       Under the facts and circumstances I think

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that the plaintiff’s should not be allowed to take  the law in their own hands, and they are not  supposed to make any obstruction to the defendant  No. 1 in peaceful enjoyment of flat No. 201 of  Schedule ’B’ property.  Therefore, the plaintiffs  are hereby directed to remove the padlock and  sundry articles from flat no. 201 immediately and  they are hereby restrained from making any further  obstruction to the defendant no. 1 in peaceful  enjoyment of the said flat.  "

7.      In the meanwhile, however, a preliminary decree was passed in the  suit.

8.      Appellants filed a revision application before the High Court against  the said order dated 21.11.2006 which by reason of the impugned judgment  has been dismissed holding:

"\005It further appears from the said reports that an  interim mandatory order of injunction can be  passed only in circumstances which are clear and  the prima facie materials clearly justify a finding  that the status quo has been altered by one of the  parties to the litigation and the interests of justice  demanded that the status quo ante be restored by  way of an interim mandatory injunction\005"

       It was furthermore observed:

"\005Thus it cannot be said that in the present case  there is no prima facie finding by the learned Trial  Court.  Therefore, in the present facts and  circumstances of the case, the said reported case  cannot be of any help to the petitioners.  It is clear  that the learned Trial Court after having recorded  its prima facie finding in respect of possession by  the respective parties in respect of the ’B’ schedule  property, the learned Trial Court disposed of the  application for injunction on contest."

9.      The High Court noticed the discrepancies in the averments made by  the plaintiffs at different stages of the proceedings and upon consideration of  the rival submissions opined:

"It appears from the materials on record, as already  discussed above, and after having considered the  respective submissions made by the learned  counsels for the respective parties, as already  discussed above, that the defendant no. 1 has been  in possession of the said flat no. 201 at all material  times.  Copies of certain documents which have  been annexed to the affidavit-in-opposition, as  discussed above, shows that the learned Trial  Court was not in error in making a prima facie  finding with regard to the respective possession of  the parties in the ’B’ schedule property.  It further  appears that the plaintiffs/ petitioners at the initial  stage did not dispute the possession of the  defendant no. 1 in respect of the said flat no. 201  but only at a later stage the plaintiffs/ petitioners  became interested in denying the possession of the  defendant no. 1 in respect of flat no. 201.  The  plaintiffs/ petitioners could not substantiate their  claim in respect of the said flat no. 201 by any  supporting document."

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10.     Mr. Haradhan Banerjee, learned counsel appearing on behalf of the  appellants, submitted that keeping in view the nature of preliminary decree  passed by the learned Civil Judge, the Trial Judge as also the High Court  committed a serious error in passing the impugned judgment.   

       It was urged that the parties being co-owners and a final decree in the  suit having not yet been passed, it is impermissible in law to pass an order of  mandatory injunction and that too without arriving at a definite conclusion  that the first respondent was in exclusive possession of Flat No. 201.   

11.     Mr. Animesh Kanti Ghosal, learned counsel appearing on behalf of  the first respondent, on the other hand, would support the impugned  judgment.

12.     There cannot be any doubt or dispute as a general proposition of law  that possession of one co-owner would be treated to be possession of all.   This, however, in a case of this nature would not mean that where three flats  have been allotted jointly to the parties, each one of them cannot be in  occupation of one co-owner separately.

       We have noticed hereinbefore that the plaintiffs \026 appellants  themselves in no uncertain terms admitted that by reason of mutual  adjustment the parties had been in separate possession of three flats, viz., flat  Nos. 201, 202 and 301.  If they were in possession of the separate flats,  plaintiffs as co-owners could not otherwise have made any attempt to  dispossess the first respondent by putting a padlock.  The padlock, according  to the first respondent, as noticed hereinbefore, was put by the plaintiffs \026  appellants immediately after the appeal preferred by them in the High Court  was dismissed.   

13.     The padlock was directed to be removed by the learned Civil Judge by  an order dated 21.11.2006.  We do not find any illegality therein.

       It is now a well-settled principle of law that Order 39, Rule 1 of the  Code of Civil Procedure (Code) is not the sole repository of the power of the  court to grant injunction.   

       Section 151 of the Code confers power upon the court to grant  injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the  Code. [See Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR  1962 SC 527 and India Household and Healthcare Ltd. v. LG Household and  Healthcare Ltd. (2007) 5 SCC 510]  

14.     Strong reliance has been placed by Mr. Banerjee on a judgment of  Bombay High Court in Bhaguji Bayaji Pokale & Ors. v. Kantilal Baban  Gunjawate & Ors. [1998 (3) CCC 377 (Bom.)] wherein it was held:

"7. With regard to second substantial question of  law, i.e. the co-owner cannot claim an order of  injunction against another co-owner with regard to  the property owned jointly, the learned Counsel for  the appellants had relied upon the Apex Court’s  judgment reported in Mohammad Baqar and others  v. Naim-un-Nisa Bibi and others. The Apex Court  has very categorically held in para No. 7 as under: "The parties to the action are co-sharers, and as  under the law, possession of one co-sharer is  possession of all co-sharers, it cannot be adverse to  them, unless there is a denial of their right to their  knowledge by the person in possession, and  exclusion and ouster following thereon for the  statutory period." It was observed : "\005Similarly, the legal position that the co-owner

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or co-sharer of the property can never claim  ownership by adverse possession of the other  share. This is also a well settled law."

       We are concerned in this case with a question whether if a co-owner  was in specific possession of the joint property, he could be dispossessed  therefrom without the intervention of the court.  In this case, the first  respondent is not claiming title of adverse possession.  The said decision  has, therefore, no application to the fact of the present case.

15.     Reliance has also been placed by Mr. Banerjee in Abu Shahid v.  Abdul Hoque Dobhash and another [AIR 1940 Cal 363], Hemanta Kumar  Banerjee and others v. Satish Chandra Banerjee and others [AIR 1941 Cal  635] and Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others  [AIR 1967 SC 109].

       In Abu Shahid (supra), the question which arose for consideration was  in regard to plea of ouster vis-‘-vis rendition of accounts.  We are not  concerned with such a question in this case.

       In Hemanta Kumar Banerjee and others (supra), the question which  arose for consideration was as to whether the rule against partition amongst  co-sharers is an elastic one.  Again, we are not concerned with such a  question here.

       In Jahuri Sah (supra), this Court opined:

"12. What we have to consider then is whether the  contract for payment of compensation is not  enforceable. It is no doubt true that under the law  every co-owner of undivided property is entitled to  enjoy the whole of the property and is not liable to  pay compensation to the other co-owners who  have not chosen to enjoy the property. It is also  true that liability to pay compensation arises  against a co-owner who deliberately excludes the  other co-owners from the enjoyment of the  property. It does not, however, follow that the  liability to pay compensation arises only in such a  case and no other. Co-owners are legally  competent to come to any kind of arrangement for  the enjoyment of their undivided property and are  free to lay down any terms concerning the  enjoyment of the property. There is no principle of  law which would exclude them from providing in  the agreement that those of them as are in actual  occupation and enjoyment of the property shall  pay to the other co-owners compensation..."  

       These observations do not assist the case of the appellants.  If parties  by mutual agreement entered into possession of separate flats, no co-sharer  should be permitted to act in breach thereof.

16.     It is not the law that a party to a suit during pendency thereof shall  take law into his hands and dispossess the other co-sharer.   

       If a party takes recourse to any contrivance to dispossess another,  during pendency of the suit either in violation of the order of injunction or  otherwise, the court indisputably will have jurisdiction to restore the parties  back to the same position.

       In Israil & Others v. Samset Rahman & Others [(1914) 18 Cal WN  176 ; AIR 1914 Cal 362], Mookerjee, J. held that a co-owner being in  exclusive possession of a joint property would be entitled to injunction.  If a  person is entitled to a prohibitory injunction, a’ fortiori he shall also be

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entitled to a mandatory injunction. [See also Spandan Diagnostic &  Research Centre Private Limited & Ors. v. Shri Ritendra Nath Ghosh & Ors.  2000 (2) Cal LT 83]

17.     We are not oblivious of a judgment of this Court in Kishore Kumar  Khaitan & Anr. v. Praveen Kumar Singh [(2006) 3 SCC 312], wherein one  of us (Sinha, J.) was a member, where it was held:

"14. Thus, prima facie, we find that the tenancy  claimed by the plaintiff remains to be proved in the  suit. For the present, we should say that prima  facie, the plaintiff has not been able to establish the  foundation for the possession claimed by him. It is  significant to note that not even another tenant of  the building among the various tenants in the  building, was examined to establish that the  plaintiff while in possession, had been  dispossessed on 20-6-1998 as claimed by him. Any  way, the Additional District Judge has not referred  to any such evidence except referring to the  affidavit of Shivanand Mishra, who even  according to the plaintiff was no more in  occupation. Thus, the disturbance of the status quo  by the defendants has not been established. Thus,  prima facie it is clear that the plaintiff has not laid  the foundation for the grant of an interim order of  mandatory injunction in his favour. The order so  passed by the Additional District Judge, and  confirmed by the High Court, therefore, calls for  interference in this appeal."

18.     The fact situation obtaining herein, however, is absolutely different.   In this case, such a foundational fact has not only been raised by the  respondents, the appellants admitted the factual scenario in that behalf.  No  party, it is trite, ordinarily should be allowed to take benefit of his own  wrong.

19.     For the reasons aforementioned and particularly having regard to the  fact situation obtaining herein, we are of the opinion that the impugned  judgments warrant no interference.  Accordingly, the appeal is dismissed  with costs.  Counsel’s fee assessed at Rs. 10,000/-.