Office Notes,

reports, orders or proceedings

SL.

Date or directions COURT’S OR JUDGE’S ORDERS

No.

and Registrar’s

order with Signatures

A.O. No.350 of 2025

Hon’ble Alok Mahra, J.

Mr. Piyush Garg, Ms. Priyanka Agrawal

and Mr. Shreyas Shankar Joshi, Advocates for

the appellants.

Mr. Amish Tewari, Advocate, has put in

appearance on behalf of respondent nos.1 & 2.

Mr. Nagesh Aggarwal, Advocate for

respondent no.3.

2. This Appeal from Order has been preferred by the appellants assailing the order dated 25.08.2025 passed by the learned Civil Judge (Senior Division), Almora in Civil Suit No. 9 of 2025, whereby the learned Court below has rejected the appellants’ application under Order 39 Rule 1 and 2 C.P.C. on the ground that the appellants have not sought the relief of

recovery of possession in their plaint.

3. Learned counsel for the appellants contends that the appellants have instituted a suit for mandatory injunction seeking restoration of possession over the property in dispute. It is submitted that a family settlement was duly arrived at on 15.11.2002 amongst the co-sharers, in terms whereof, the land sold by respondent nos. 1 and 2 to respondent no. 3 fell in the exclusive share of the appellants. He further submits that even if the said family settlement is not accepted, the property continues to be joint and unpartitioned, and, as such, every co-sharer has a proprietary right over every inch of the joint holding until partition by metes and bounds is effectuated. Consequently, no co-sharer can lawfully alienate or transfer any specific portion of the joint

property.

4. Per contra, learned counsel appearing for respondent no. 3 submits that respondent no. 3 had earlier purchased a portion of the property in the year 2003, to which no objection was raised by the appellants. It is further contended that pursuant to the sale deed dated

21.11.2024, the names of respondent no. 3 have been duly mutated in the revenue records, which lends legitimacy to their possession and title.

5. Learned counsel for respondent nos. 1 and 2 submits that, subsequent to the sale deed executed in the year 2003, respondent no. 2 (Ms. Harshita Joshi) has constructed a residential house over the said property and the portion now sold lies adjacent to the municipal road, possessing a comparatively higher market value.

6. Having heard learned counsel for the parties and upon perusal of the record, this Court finds that even as per the stand of the respondents, the property in question continues to be joint and unpartitioned. It is a settled proposition of law that until a final partition takes place, every co-sharer is deemed to be in possession of each and every part of the joint property, and none can claim exclusive possession or alienate a specific demarcated portion thereof.

7. Hon’ble Supreme Court in the case of K.K. Verma Vs. Union of India, reported in (1954) SCR 187, explained the legal position of a co- sharer in joint property. It held that every co- sharer is an owner of each and every portion of the undivided property along with the other co- sharers, and none can claim exclusive ownership over any specific part until partition takes place. Each co-sharer has an equal right to possession, use, and enjoyment of the entire property, subject to similar rights of the others. Possession by one co-sharer is, in law, possession for all, unless there is clear evidence of ouster or exclusion.

8. Similarly, in the case of N. Khosla Vs. Rajlakshmi, reported in (2006) 3 SCC 605, Hon’ble Supreme Court held that possession by one co-sharer is presumed to be possession on behalf of all co-sharers unless there is clear evidence of ouster or denial of rights. Mere exclusive possession or non-participation by others does not extinguish co-ownership rights. The Court reaffirmed that co-sharers’ possession is joint and cannot become exclusive