TANUSREE BASU & Ors. v. MARCH 5

A application for a direction to the plaintiffs to remove the padlock and not to obstruct his peaceful possession. Meanwhile the High Court disposed of MFA No. 988 of 2005 directing the parties to maintain their respective possession in the suit properties. It further observed that B any application pending before the trial court with regard to charge made by any party would be decided irrespective of its order in the appeal. Consequently, the trial court allowed the application of defendant-respondent no. 1 and directed the plaintiffs to remove the padlock from c flat no. 201. The High Court dismissed the revision filed by the plaintiffs. Meanwhile a preliminary decree was passed in the suit. In the instant appeal filed by the plaintiffs, it was contended for the appellants that the parties being co- o owners and a final decree having not yet been passed, the trial court could not have passed the mandatory injunction and that too without arriving at a definite conclusion that respondent no. 1 was in exclusive , possession of flat no. 201. E · Dismissing the appeal, the Court HELD: 1.1 There cannot be any doubt about the general proposition of law that possession of one co owner would be treated to be possession of alL This, . F however, would not mean that where flats have been allotted jointly to the parties, each one of them cannot be in occupation of one of such flats as a co-owner separately. If parties by mutual agreement entered into possession of separate flats, no co-sharer should be G permitted to act in breach thereof. [para 12 and 15) [1203- A, B; 1205-F)

1.2 The plaintiffs - appellants themselves in no uncertain terms admitted that by reason of mutual adjustment the parties had been in separate possession H of three flats, viz., flat Nos. 201, 202 and 301. Thus, the ' < ~ ; ·--<; •• TANUSREE BASU & ORS. v. ISHANI PRASAD BASU & ORS. 1197 plaintiffs as co-owners could not otherwise have made A any attempt to dispossess the first respondent by putting a padlock. The padlock, according to the respondent no. 1was put by the plaintiffs - appellants immediately after the appeal preferred by them in the High Court was dismissed. The padlock was rightly directed to be B removed by an order dated 21.11.2006 passed by the Civil Judge. [para 12-13] (1203-C, D, E]

2.1 It is now a well-settled principle of law that Order 39, Rule 1 of the Code of Civil Procedure, 1908 (Code) is not the sole repository of the power of the court to grant c 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. [para 13] (1203-E, F]