Co-owners are entitled to joint possession and enjoyment of co-owned property, and a suit for mandatory injunction for joint enjoyment is maintainable under the relevant provisions of the law.

Valmiki J. Mehta, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant no.1 in the suit impugning the concurrent Judgments of the courts below; of the Trial Court dated 7.6.2014 and the First Appellate Court dated 12.1.2016; by which the suit for mandatory injunction filed by the respondent no.1/plaintiff for joint enjoyment of the suit property, a co-owned property, was decreed. The suit property is property bearing no. 3 Bhogal Road, Bhogal, New Delhi situated on a plot admeasuring 83.5 sq. yds. The trial court by its judgment has directed the appellant/defendant no.1 by way of mandatory injunction to handover one set of keys of the suit property to the respondent no.1/plaintiff/co-owner.

2. That the suit property was originally owned by the father of the appellant/defendant no.1 and the respondent no.1/plaintiff is not disputed before this Court. It is also not disputed that on the death of the father of the parties both the appellant/defendant no.1 and the respondent no.1/plaintiff became co-owners. There are even other co-owners of the suit property being the other legal heirs of the father i.e. widow/Smt. Laxmi Devi of the deceased Sh. Prem Nath, the brother Sh. Anand Kumar and the sisters Smt. Lalita Gupta and Smt. Nisha Vaish.

3. The crucial issue which was called for decision was issue no.4 as to the entitlement of the respondent no.1/plaintiff for being handed over the keys and therefore effectively joint possession of the suit property. This issue has been dealt with by the trial court in paras 32 to 36 in its judgment and which paras read as under:-

“32. The onus to profe3 this issue was on the plaintiff. As PW1, the plaintiff has deposed in Ex.PW1/A that all legal heirs including him were in joint legal possession of the suit property through the defendant No.1 was in physical possession of the same after obtaining the same from the plaintiff by fraud. PW1 has further deposed that it had been agreed between him and the defendant No.1 that they would not put individual locks on the suit premises and only locks with duplicate keys shall be used with the keys remaining with both the parties. PW1 has further deposed that on 20.01.2009, the defendant no.1 had approached the plaintiff and requested for his keys on the ground that he had lost his keys and the suit premises required cleaning and that he also promised to return the keys in the evening but he did not return the same on the ground that the cleaning had not been completed and that he would return the same in 1-2 days. PW1 has further deposed that on 23.01.2009 when he visited the suit premises inter alia the defendant No.1 refused to return the keys to the plaintiff. During the cross-examination of PW1, the defendant No.1 was unable to impeach the credibility of the witness or the veracity of his testimony. For reasons best known to the defendant No.1 no questions were put to the plaintiff in respect of the incident dated 20.01.2009 or 30.01.2009 being false.

33. The testimony of PW1 has also been duly corroborated by the testimony of PW2 Sh. Pankaj Chawla who has deposed as to being an eye witness a to the incident dated 20.01.2009 in respect of the defendant No.1 asking for the keys and the plaintiff handing over the same to the defendant No.1 in his presence. During the cross-examination, except putting a mere suggestion as to him not being present at the suit property on 20.01.2009, the defendant No.1 has been unable to elicit and contradiction or impeach the veracity and credibility of the testimony of PW2. No reason has been brought forth by the defendant No 1 to disbelieve the testimony of the eye witness PW2.

34. On the other hand, the defendant No.1 has himself admitted during his cross-examination that he has not placed on record any document to show that he is in exclusive possession of the suit premises for the claimed period. In the absence of the defendant proving h