(Under Order 43 Rule 1(r) of the Civil Procedure Code, 1908) Beena Sah & v. Deepa Sah and Others

confirm ed t here was no illegal hill- cut t ing and grant ed perm ission for parking, which is also regist ered under GST.

7. Learned counsel for appellant s relies upon t he j udgm ent of t he Hon’ble Suprem e Court in T. 5 Ram alingeswara Rao ( Dead) t hrough LRs. & Anr. v. N. Madhava Rao & Ors., ( 2019) 4 SCC 608, wherein it was held t hat possession of one co- sharer possession of all and inj unct ion cannot be grant ed by one co- sharer against anot her, unless oust er proved, t hus, t he im pugned order is unsust ainable in law and liable t o be set aside.

8. Learned counsel for t he appellant also relied upon t he j udgm ent of Hon’ble Punj ab and Haryana High Court in t he case of Bachan Singh Vs. Swaran Singh 2000 SCC OnLine P&H 233, wherein t he Court em phasized t hat in cases of co- ownership, possession by one co- owner is, in law, possession for all—unless t here's an express assert ion of exclusive ownership am ount ing t o oust er.

9. He also relied upon t he j udgm ent of Hon’ble High Court of Allahabad in t he case of Sahanaz Begum Vs. Dist rict Judge Sult anpur and Ot hers 2023 SCC OnLine All 3231. Paragraph nos.23 & 26 is ext ract ed hereunder: “ 23. I n a recent j udgm ent of Hon'ble t he Suprem e Court t he aforesaid aspect has already been t aken care of and adj udicat ed in t he case of T. Ram alingeswara Rao ( Dead) t hrough Legal Represent at ives and Anot her versus N. Madhava Rao and ot hers report ed in ( 2019) 4 Suprem e Court Cases 608 wherein t he aspect of whet her inj unct ion can be grant ed against co- sharers has been dealt wit h in t he following m anner: - 6 t hat t o claim I n our view, even assum ing t he " 16. plaint iffs claim ed t o be in possession of t he suit propert y ( which t he t wo court s below did not find in t heir favour) for claim ing inj unct ion, yet inj unct ion t hey were not ent it led t he suit t he ot her co- sharers over against propert y. I t is a set t led principle of law t hat t he possession of one co- sharer is possession of all t hem , it cannot be adverse co- sharers, unless t here is a denial of t heir right t o t heir knowledge by t he person in possession, and exclusion and oust er following t hereon for t he st at ut ory period 26. I n view of aforesaid discussion, t his Court com es t o t he considered conclusion t hat t here is no error in t he orders im pugned pert aining t o t he fact t hat inj unct ion could not have been grant ed in favour of plaint iff against ot her co- sharer wit hout part it ion being effect ed bet ween t hem and wit hout any averm ent t he t he plaint iff was being exclusive share of t ram pled upon by t he ot her co- sharers.” t hat t o

10. Per cont ra, learned counsel t he respondent s would subm it t hat t he propert y quest ion, as described in Schedule ‘A’ of t he plaint , is in t he j oint possession of all t he part ies. Several houses have already been const ruct ed by t he appellant s under t heir own secret arrangem ent ; t herefore, it is wholly incorrect t o cont end t hat 90% of t he ent ire propert y m ent ioned in Schedule ‘A’ of t he plaint is in possession of t he respondent s. I n fact , t he respondent s are in possession of only about 2200–2300 sq. ft . of land area. The appellant s, on t he ot her hand, are in possession of t he propert y described in Schedule ‘B’ of t he plaint , sit uat ed at 7 Lala Bazar, Alm ora, which is one of t he prim e locat ions in Alm ora t own and is present ly being ut ilized by t he appellant s for com m ercial purposes.

11. Learned counsel for t he respondent s would furt her subm it t hat t he applicat ion for t em porary inj unct ion filed by respondent nos. 1 t o 3/ plaint iffs was not filed wit h any m alafide int ent ion, as alleged, since t he appellant s had been operat ing a com m ercial car parking t he propert y in quest ion wit hout aut horit y. On an applicat ion m ade under t he Right t o I nform at ion Act , t he com pet ent aut horit y cat egorically inform ed t he respondent s t hat no perm ission what soever had been grant ed t o t he appellant s for running any com m ercial parking on t he propert y in quest ion.

12. Learned counsel for t he respondent s would furt her subm it t hat t he fat her of t he answering respondent had four brot hers and t hree sist ers; t herefore, in any case, t he appellant s cannot claim 1/ 4t h share in t he propert y. To t his effect , t he learned t rial court has already fram ed issues vide it s order dat ed 21.07.2025. I t is furt her cont ended t hat t he allegat ions m ade by t he appellant s t hat t he answering respondent is an aggressive lady or t hat she has 8 occupied t he ent ire Rit uraj Building, out house or cam pus area, or t hat she forcefully const ruct ed an iron gat e t o occupy t he t ennis court area, are absolut ely false and baseless. The applicat ion for t em porary inj unct ion was fully m aint ainable and has right ly been allowed by t he learned t rial court . He has relied upon t he j udgm ent in Ta n u sh r e e Ba su a n d Ot h e r s v . I sh a n i Pr a sa d Ba su a n d Ot h e r s, ( 2 0 0 8 ) 4 SCC 7 9 1 , wherein paragraph no. 23 is relevant , which reads as under:

23. I t is not t he law t hat a part y t o a suit dur ing pendency t hereof shall t ake law int o his hands and dispossess t he ot her co- sharer. I f a part y t akes recourse t o any cont rivance t o dispossess anot her, during pendency of t he suit eit her in violat ion of t he order of inj unct ion or ot herwise, t he court indisput ably will have j ur isdict ion t o rest ore t he part ies back t o t he sam e posit ion.

13. I n view of aforesaid discussion, t his Court com es t o t he considered conclusion t hat t here is no error in t he orders im pugned pert aining t o t he fact t hat inj unct ion could not have been grant ed in favour of plaint iff against ot her co- sharer wit hout part it ion being effect ed bet ween t hem and wit hout any averm ent t hat t he exclusive share of t he plaint iff was being t ram pled upon by t he ot her co- sharers. 9

14. Heard learned counsel for t he part ies and perused t he m at erial available on record.

15. I t is not in disput e t hat Lat e Sm t . Basant i Devi Shah, wife of lat e Chandra Lal Shah, was t he owner of Schedule ‘A’ propert y. By her Will, she bequeat hed t he sam e t o her daught er Sm t . Vidya Sah and her four sons, nam ely: ( i) Krishna Lal Shah, ( ii) Dr. Gangadhar Prasad Shah ( respondent no.4 herein) , ( iii) Chandra Shekhar Shah ( predecessor respondent s nos.1–3) , and ( iv) Mahesh Prasad Shah ( husband/ fat her of respondent s nos.5–7) and t he m ut at ion was accordingly carried out in t he records of t he Municipal Board. I t is furt her adm it t ed t hat t he four sons along wit h Sm t . Vidya Sah also inherit ed Schedule ‘B’ propert y aft er t he deat h of lat e Bhawani Das Shah. Thus, all four brot hers becam e co- owners, each ent it led t o one- fourt h undivided in bot h Schedule ‘A’ and Schedule ‘B’ propert ies. The subsequent deat hs of Vidya Sah ( 1999) , Krishna Lal ( 2005) , Mahesh Prasad ( 2015) , and Chandra Shekhar ( 2020) are also adm it t ed. Respondent no.4 is st ill alive. On t hese adm it t ed fact s, t he appellant s, being legal heirs of one of t he co- sharers, are also t he co- sharers of t he propert y in 10 quest ion.

16. The principle of law wit h respect t o co- ownership is well- set t led. The possession of one co- owner is deem ed t o be possession on behalf of all co- owners. Unless t here is a clear case of oust er, denial of t it le, or exclusion for t he st at ut ory period, one co- owner cannot rest rain anot her co- owner from using t he j oint propert y. I t is also well set t led t hat possession of one co- sharer is in law possession of all, and inj unct ion cannot be grant ed against a co- owner except in cases of oust er; t hat , wit hout part it ion or exclusive allot m ent of share, one co- sharer cannot claim inj unct ion against anot her.

17. I n t he present case, t he plaint iffs/ respondent s have adm it t edly enclosed and occupied subst ant ial port ions of t he Rit uraj Building and land wit hout part it ion, while respondent no.4 has const ruct ed a t hree- st oried building and is running a school. The appellant s are using a lim it ed port ion of t he t ennis court area for parking purposes. The said use does not am ount t o oust er of t he plaint iffs nor does it m at erially alt er t he charact er of t he propert y.

18. The t rial court failed t o appreciat e t hat an inj unct ion against a co- owner in such circum st ances 11 is legally im perm issible. The balance of convenience favour t he plaint iffs/ respondent s, as t hey are already enj oying subst ant ial port ions of t he propert y. No irreparable loss has been shown t o t hem . At best , any grievance wit h regard t o allot m ent or m ode of enj oym ent can only be resolved upon final part it ion.

19. At t he sam e t im e, since t he appellant s are adm it t edly running a com m ercial parking, t his Court considers it appropriat e t o regulat e t he use so as t o prot ect t he right s of ot her co- sharers. Accordingly, while set t ing aside t he im pugned order, it is direct ed t hat t he appellant s m ay cont inue t o use t he t ennis court area for parking, subj ect t o t he following condit ions: ( i) The appellant s shall m aint ain t he parking area in a clean and properly light ed condit ion. ( ii) A funct ional washroom shall be provided for t he drivers and st aff. ( iii) The respondent s, being co- sharers, shall be ent it led t o park t heir personal vehicles in t he said area wit hout paym ent of any charges.

20. Subj ect t o t he above condit ions, t he appeal is allowed. The order dat ed 25.06.2025 passed by t he 12 Civil Judge ( Senior Division) , Nainit al in Civil Suit No. 55 of 2023 is set aside.

21. Pending applicat ions, if any, also st and disposed of accordingly. ( A LOK M A H RA , J.) Dat ed: 26.09.2025 Mam t a MAMT A RANI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=6a812005bebfcf46f244f3e 584af1449e430ef900bf09a6d67ebb d642671329b, postalCode=263001, st=Uttarakhand, serialNumber=5de1751a4f1d9cabf d54852c9e68911ca8b66dd26690a1 91648ab5d8dd004ef0, cn=MAMTA RANI 13