Co-owners of a property have an unequivocal right to seek partition regardless of physical possession or claims of exclusive ownership.

JUDGMENT :

VIKRAM AGGARWAL, J.

1. Defendant is in appeal against the judgment and decree dated 22.05.2024 passed by the Court of learned Additional District Judge, Kurukshetra, dismissing his appeal against the judgment and decree dated 09.10.2017, passed by the Court of learned Civil Judge (Jr. Divn.), Kurukshetra, vide which the suit of the plaintiff for partition was decreed.

2. For the sake of convenience and clarity, parties shall be referred to as per their original status.

3. Plaintiff (Nutan) instituted a suit for partition and mesne profits. Plaintiff and defendant were joint owners in possession of a three storey building to the extent of ½ share each in portion in red colour marked as ABCD in the site plan dated 28.09.2015 (fully described in the plaint) situated in Kurukshetra (hereinafter to be referred to as the “suit property”). Consequential relief of permanent injunction was also sought.

4. The case set up by the plaintiff was that plaintiff and defendant, who are real brother and sister, purchased the suit property vide registered sale deeds dated 05.05.1998 and 14.07.1998. In the month of May, 2014, plaintiff approached the defendant to get the suit property partitioned and also asked for the documents regarding ownership of the property. The defendant refused to supply the same. Plaintiff then approached the office of the Sub-Registrar, Thanesar and obtained the certified copies of the sale deeds on 27.05.2014. In the month of June, 2015, plaintiff again requested the defendant to get the suit property partitioned by metes and bound but the defendant again refused to accept the genuine and bona fide request of the plaintiff. Rather, he threatened the plaintiff that he would dispose off the suit property as a result of which, the plaintiff filed the suit.

5. The suit was resisted by the defendant. In the written statement, preliminary objections regarding maintainability, locus standi, cause of action, estoppel and concealment of true and material facts etc. were raised. On merits, it was admitted by the defendant that the plaintiff is his real sister. It was averred by the defendant that the suit property was purchased by him exclusively out of his own funds and the name of the plaintiff was added in the sale deeds only on the asking of his mother in order to elevate her status in her in-laws as the plaintiff was a house-wife. The mother of the defendant expired on 15.01.2015. It was averred that before her death, she asked the plaintiff to get the share recorded in her name but the plaintiff did not pay any heed. It was averred that the sale deeds were executed on 05.05.1998 and 14.07.1998 and the plaintiff remained silent for a long period of 17 years. It was averred that the defendant raised construction over the suit property upto double storey out of his own funds and the suit property was in his actual physical possession. A plea of adverse possession was also taken stating that the defendant was in possession of the suit property since May 1998. Replication was filed by the plaintiff denying the averments made in the written statement and reiterating those made in the plaint.

6. From the pleadings of the parties, following issues were framed by the trial Court:-

“1. Whether the plaintiff is entitled to decree for partition by metes and bounds as prayed for?OPP

2. Whether the plaintiff is entitled to decree for permanent injunction along with mesne profit for use and occupation charges of building in question @ Rs.15000/- per month as prayed for?OPP

3. Whether the plaintiff got no locus standi and casue of action to file and maintain the present suit?OPD

4. Whether the plaintiff are