Form No. J(2)

In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side Present: The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Supratim Bhattacharya FMAT 174 of 2025 IA No: CAN 1 of 2025 CAN 2 of 2025 Sukanya Das and another Vs.

Sri Sankar Dutta For the appellants : Mr. Sayantan Bose, Ms. Priyanka Gope For the respondent : Mr. P. Das, Mr. G. Das, Mr. M. Patra Heard on : 02.02.2026 Judgment on : 02.02.2026 Sabyasachi Bhattacharyya, J.:-

Re: CAN 1 of 2025

1. Upon hearing learned counsel for the parties, we find that sufficient explanation for the delay of 21 days in filing the appeal has been made out.

2. Accordingly, CAN 1 of 2025 is allowed, thereby condoning the delay in preferring FMAT 174 of 2025.

3. There will be no order as to costs.

Re: FMAT 174 of 2025 CAN 2 of 2025

4. In view of arguable questions having been raised, the appeal is admitted for being heard on the grounds taken in the memorandum thereof.

5. Upon putting the parties on notice, in view of short ambit of the appeal, the hearing of the appeal itself is taken up along with the application.

6. The matter arises under peculiar circumstances.

7. The defendant/respondent herein has filed a partition suit, including a portion of the subject-matter of the present suit within its hotchpot.

8. The present plaintiffs/appellants, who are defendants in the said partition suit, instituted the instant suit for declaration of their title in respect of their share in the suit premises as well as seeking permanent injunction regarding their possession in respect thereof.

9. The learned Trial Judge, by the impugned order, dismissed the temporary injunction application of the appellants by relying on two judgments cited by the respondent on the proposition that a suit for permanent injunction by some co-sharers against others, to restrain the latter from exercising their right over any part of the property in joint possession, without claiming partition, is not maintainable.

10. Learned counsel for the appellants argues that there is a stark distinguishing feature in the present case from the decisions which were cited before the learned Trial Judge.

11. In the present case, there is already a pending suit for partition between the parties, which would render a further suit for partition unnecessary and academic. Secondly, in paragraph no.10 of the plaint of the said partition suit, the present respondent (plaintiff therein) has categorically admitted that the present respondent had been in possession of a portion of the suit premises till 2002 but that now the present appellants (defendant nos. 1 and 2 in the partition suit) are occupying such rooms and the entire suit premises.

12. It is, thus, argued that since the exclusive physical possession of the plaintiffs/appellants herein has not been denied, rather admitted by the respondent in the respondent’s own suit for partition, the reliance placed by the learned Trial Judge on the cited judgments was misplaced.

13. Learned counsel appearing for the respondent submits that the respondent is admittedly a co-sharer in respect of the suit premises and, as such, no injunction can be granted restraining the said respondent/co-sharer from entering the joint property.

14. Upon considering the arguments of the parties, we find that the facts of the present case are unique. Undoubtedly, it is a settled general proposition of law that possession of one co-owner in respect of a joint property is, under normal circumstances, deemed to be the possession of the other co-owners as well.

15. However, such proposition is obviously subject to the rider that where a clear case of ouster of the other co-sharers may be made out from the pleadings of the parties, the physical possession of one co-sharer cannot be deemed to be joint possession on behalf of the ousted co-

sharers.

16. Although, in the present suit, the plaintiffs/appellants have not specifically pleaded ouster, from the pleadings in paragraph no. 10 of the plaint