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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SUSHIL KUKREJA
Sushil Kumar – Appellant
Versus
Brij Bala (deceased) through LRs – Respondent
JUDGMENT :
Sushil Kukreja, J.
The instant appeal, under Order 43 Rule 1(u) of the Code of Civil Procedure, has been maintained by appellant, who was the defendant before the learned Trial Court, against the order dated 19.04.2024, passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 155/2022, whereby the case was remanded back to the learned trial Court for trial afresh after allowing applications under Order 1 Rule 10, read with Section 151 CPC and under Order 6 Rule 17, read with Section 151 CPC, with a prayer to set aside the same with costs.
2. The brief facts of the case are that predecessor-in- interest of respondents namely Brij Bala instituted a suit for possession and recovery of premises marked as “ABCDEFG” depicted in the site plan, as well as use and occupation charges, wherein, it has been averred that she is owner of double storeyed building, depicted in the site plan on having acquired title over the same vide Will dated 15.05.2003 executed by her husband late Sh. Sant Ram Gupta. The defendant was inducted by her husband as tenant of the shop marked in the site plan as “FHIJKL” on a monthly rent of Rs. 3,000/- vide agreement dated 31.12.199
A co-owner can maintain a suit for possession against a tenant without joining other co-owners, affirming that non-joinder does not render the suit bad in law.
The court affirmed that a suit for declaration does not necessitate all co-owners as parties if their interests don't impede the plaintiff's claims.
The court has the discretion to add necessary or proper parties to a suit to effectively adjudicate the questions involved, and a person must be directly or legally interested in the action to be add....
A suit cannot be defeated by reason of the non-joinder of a necessary party, but if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is b....
(1) Law permits a co-sharer to continue to remain, ad infinitum, in exclusive possession of a particular parcel and, subject to well recognised prohibitions, even make constructions on it. Exclusive ....
The main legal point established in the judgment is the validation of sale deeds, entitlement to seek partition and separate possession, and the rejection of adverse possession claims.
The Appellate Court erred in denying recovery of possession despite confirming the plaintiff's title, emphasizing that possession without title is unlawful.
A co-owner's possession of joint property is deemed possession for all, and exclusive possession must be proven to restrict others' rights.
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