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BOMBAY HIGH COURT
R.K. Deshpande, J.
Mahesh Zangoji Ghotekar —Applicant
versus
Prayas Sakhare —Respondents
Civil Revision Application No.58 of 2015
Decided on 18.2.2016
Counsel for the Parties:
Shri S.A.Kalbande, Advocate, for Applicant
Shri S.G.Karmarkar, Advocate for Respondent nos. 1 and 2
IMPORTANT POINT
For purposes of Section 6 of Specific Reliefs Act, possession of one of co-owner cannot be treated as possession of all co-owners.
Headnote:Specific Relief Act, 1963—Section 6—Restoration of possession—Fact that parties have joint title over suit property has nothing to do with question of possession under Section 6 of Specific Reliefs Act—It may well be that a joint owner of property is still at the date of suit under Section 6 entitled to property and would be given possession in a suit properly instituted for that purpose—But, nevertheless, it is open to one co-owner of property to oust others and to obtain exclusive possession for himself—Merely because property is joint family property, it does not follow that for the purposes of Section 6 of Specific Reliefs Act, possession of one of co-owner can be treated as possession of all co-owners—Suit decreed.
Result: Civil Revision Application allowed.
R.K. Deshpande, J.—Admit.
Heard finally by consent of the learned counsels appearing for the parties.
2. The dispute arising out of a suit under Section 6 of the Specific Reliefs Act, pertains to Plot No. 8, Khasra Nos. 62, 69, 71 and 87 of Mouza Ajani in the layout Uruvila Cooperative Housing Society, Wardha Road, Nagpur, which was owned by one Smt. Jasabai, the mother of the present applicant, the original plaintiff. The respondent no.2 Smt. Manjushri Prayas Sakhare is the daughter of Nivrutti, real brother of the plaintiff, and the respondent No.1 is her husband. In Special Civil Suit No. 104 of 2012 filed by the applicant-plaintiff, the respondents were joined as defendant nos. 1 and 2, as it was alleged that they have forcibly taken possession of the suit premises on 01.09.2011 and the suit was filed on 02.02.2012, which was during the period of limitation of six months, about which there is no dispute.
3. The applicant-plaintiff alleged that he was in actual possession of the suit block from the year 2006 to 2008 along with his brother Nivrutti and Smt. Umabai, the wife of Nivrutti. The respondent No. 2 Smt. Manjushri, daughter of Nivrutti, was married in the year 2000 with the respondent no.1 and she started residing separately at her matrimonial house at Sugat Nagar, Nagpur. Nivrutti died on 27.02.007 and Smt. Umabai, his widow, shifted to her sister’s house at Jaywant Nagar Nagpur. After the death of Nivrutti and shifting of Smt.Umabai, the plaintiff was in exclusive possession of the property. The plaintiff also shifted thereafter in the year 2008 from the suit house to Beltarodi, a different locality, where he started residing. The suit block was given by him to one Dr.Dubey, who was in need of it, on the maintenance charges of Rs.3,500/per month. Dr.Dubey resided in the suit block from 10.07.2008 to 31.08.2011 and paid the maintenance charges of Rs.3,500/per month to the plaintiff. On 01.09.2011, the respondents-original defendants entered the suit house forcibly and started occupying it. These facts are not in dispute.
4. The suit was resisted by the respondents-defendants by filing written statement. It was the stand taken that the suit house is the joint family property in which the defendant no.2 being the daughter of Nivrutti, the real brother of plaintiff, had share and there was no partition of this property. This stand taken can be prima facie accepted as undisputed. It was the further stand taken that the respondent no.2 being the coowner of the property cannot be evicted in a suit under Section 6 of the Specific Reliefs Act and the applicant/plaintiff is required to file a suit for partition and separate possession. According to the defendants, they were in constructive possession of the suit block and that the suit under Section 6 of the Specific Reliefs Act was not maintainable.
5. The plaintiff himself entered the witness box and examined Smt. Umabai, the mother of the respondent no.2; Dr.Dubey who occupied the suit block from 10.07.2008 to 31.08.2011 and one another witness Shri Rameshchandra Arjundas Godbole, to whom it is alleged that the tenant/occupant Dr. Dubey had handed over the keys of the suit block after vacating it on 31.08.2011. Both the respondents have entered the witness box and they were cross examined.
6. The trial Court took the view that the property is the joint family property, the possession of all coparcener or coowner can be said to be the joint possession. The possession of one of the coowner can be said to be the possession of all the coowners. As per the specific admission of the plaintiff in his cross examination, the suit property is certainly a joint family property of the plaintiff and the defendant no.2 and the possession of both can be said to be the joint possession over the suit property and in such circumstances, the question of dispossession of one coowner by another coowner does not at all arise. It is further held in paragraph 17 that all the legal heirs of
