Judicial Analysis Court Copy Headnote Facts Arguments Court observation

GUJARAT HIGH COURT
A.C. Rao, J.
Shambhubhai Prahladbhai Thakor —Appellant
versus
Laxmiben —Respondent
R/Appeal From Order No.94 of 2020 with Civil Application (For Stay) No.1 of 2020 in R/Appeal From Order No.94 of 2020 with R/Appeal From Order No.77 of 2020
Decided on 11.2.2021

Advocates:
Counsel for the Parties:
Appeal From Order No.94 of 2020:
For the Appellant Nos.1, 2, 3:Harsh V. Gajjar(7828), Advocate for the Respondent Nos. 1, 2, 2.1
Appeal From Order No.77 of 2020:
For the Appellant No.1:Arpit Patel, Advocate
For the Respondent Nos.1-3:Harsh V. Gajjar, Advocate
For the Respondent Nos.4-4.1:Pranav A. Mehta, Advocate

IMPORTANT POINTS
(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 possession for any length of time, in absence of ouster, is not tantamount to an exclusive ownership.
(2) Erection of a permanent Structure cannot invariably be treated as conclusive evidence of ouster, nor it may be, that a property cannot be enjoyed without making extensive and substantial improvements. Test of ouster in such a case is whether plaintiff has sustained substantial injury or his title has been denied.

Headnote:
(A) Civil Procedure Code, 1908 – Order 39, Rules 1 and 2 – Injunction – 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 possession for any length of time, in absence of ouster, is not tantamount to an exclusive ownership – Exclusive possession of a co-owner is deemed to be with consent of others – Where by a mutual arrangement, between co-owners, which is a matter of common occurrence, co-owners choose to possess a separate parcel of joint property in severally, such separate possession will not be interfered with at instance of some co-sharers who may like to depart from agreed settlement – Court, in such a case, will not interfere except in case of an action for partition – Arrangement once arrived at, continues until it is abandoned with consent of all, or, a co-sharer seeks remedy provided by suit for partition – It is always open to co-owners to agree upon a particular mode or manner of enjoying their joint property. (Paras 10.5 and 10.6)
(B) Civil Procedure Code, 1908 – Order 39, Rules 1 and 2 – Injunction – Neither ejectment of sole occupation of a land, nor erection of a substantial building on it, even if this is done without assent of plaintiff, can necessarily furnish a cause of action against defendant – Erection of a permanent Structure cannot invariably be treated as conclusive evidence of ouster, nor it may be, that a property cannot be enjoyed without making extensive and substantial improvements – Test of ouster in such a case is whether plaintiff has sustained substantial injury or his title has been denied – Remedy of a co-owner not in possession, or not in possession of a share of joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment – Same is case where a co-owner sets up an exclusive title in himself. (Para 10.2)
Result: Appeals Partly allowed.

JUDGMENT (CAV)

A.C. Rao, J.—Both the above-numbered Appeal from Orders arise from the common order dated 28.2.2020 passed below Exh.5 and 41 in Special Civil Suit No.564 of 2017 by the Court of learned Principal Senior Civil Judge, Sanand. Since both the Appeal from Orders are arising out of the common order dated 28.2.2020, they are being heard together and are being decided by this common CAV Judgment.

2. So far as Appeal from Order No.94 of 2020 is concerned, the appellant Nos.1 to 3 therein are the original defendant Nos.1 to 3 whereas the respondent Nos.1 and 2 are the original plaintiffs and defendant Nos.4 and 4.1 of the Special Civil Suit No.163 of 2015 pending in the Court of Principal Civil Judge, Sanand and so far as Appeal from Order No.77 of 2020 is concerned, the appellant No.1 therein is the original plaintiff, whereas the respondent Nos.1 to 4.2 are the original defendants. The said Special Civil Suit No.163 of 2015 was filed by the plaintiff before the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, which upon formation of the Court of Senior Civil Judge at Sanand, transferred and renumbered as Special Civil Suit No.546 of 2017 and is at present pending in the Court of learned Principal Senior Civil Judge, Sanand.

2.1 In present order, the plaintiff and defendants are being referred to as per their original status before the learned trial Court in the pending suit proceedings.

3. So far as facts, leading to filing of Appeal from Order No.94 of 2020 is concerned, the appellants of the said appeal have stated in their own words that the original plaintiff – respondent No.1 herein has preferred Special Civil Suit No.163 of 2015 (new number being Special Civil Suit No.546 of 2017) seeking relief of partition, declaration and perpetual injunction before the Court of learned Principal Senior Civil Judge, Sanand against the appellant herein – original respondent No.2.

3.1 It is the case of the plaintiff that suit land situated at Block No.18 paiki admeasuring total H.R.A. 06-02-98 sq. mts. of Changodar, taluka Sanand, district Ahmedabad is an ancestral property which was originally owned by Prahladbhai Chakubhai. Prahladbhai Chakubhai expired on 16.12.1978. The suit land was ancestral and undivided property. It is further case of the plaintiff that her name was never mutated in the revenue record and the name of present appellant No.1 was mutated in the revenue record vide revenue entry No.1729 on 23.5.1989, without mutating the name of the mother of the plaintiff. The plaintiff claims to be daughter of Dahyabhai Thakor who predeceased his father Prahladbhai Chakubhai. Accrdingly, the plaintiff has prayed for grant of 1/5th share in the suit land viz. 12060 sq. mts. out of the total land admeasuirng 60,298 sq. mts.

3.2 That the original plaintiff – respondent No.1 had preferred application seeking interim injunction vide Exh.5 against the appellants herein to restrain the appellant from dealing or alienating the suit land in any manner till the final disposal of the suit. The original defendant Nos.4 to 4.1 had also preferred application at Exh.41 seeking interim injunction against the original plaintiff. It is also submitted that the learned trial Court had allowed application at Exh.5 and 41 vide order dated 15.6.2017. Being aggrieved, the present appellant and the respondent No.2 had preferred Appeal from Order No.316 of 2017 and Appeal from Order No.264 of 2017 respectively before this court and both the matters were heard together and vide judgment and order dated 21.1.2020, the appeals came to be allowed and the impugned order dated 15.6.2017 was quashed and set aside and the matter was remanded back for fresh consideration.

3.3 It is also stated that the learned trial Court after fresh consideration of the applications at Exh.5 and 41 has been pleased to allow relief prayed in Exh.5 and Exh.41 came to be rejected vide common order dated 28.2.2020. Accordingly, the interim injuncti