Injunction vis-a vis co-owners

Bachan Singh versus Swaran Singh bearing Civil Revision No.4549 of

1997 decided on 06.03.2000
15. On a consideration of the judicial pronouncements on the subject, we are
of the opinion that:
(i) a co-owner who is not in possession of any part of the property is not
entitled to seek an injunction against another co-owner who has been in
exclusive possession of the common property unless any act of the person in
possession of the property amounts to ouster, prejudicial or adverse to the
interest of co-owner out of possession.
(ii) Mere making of construction or improvement of, in the common property
does not' amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the
property is diminished, then a co-owner out of possession can certainly
seek an injunction to' prevent the diminution of the value and utility of the
property.
(iv) If the acts of the co-owner in possession are detrimental to the interest
of other co-owners, a co-owner out of possession can seek an
injunction to prevent such act which, is detrimental to his interest.
In all other cases, the remedy of the co-owner out of possession of
the property is to seek partition, but not an injunction restraining
the co-owner in possession from doing any act in exercise of his
right to every inch of it which he is doing as a co-owner.

Karam Singh & another versus Lakhbir Kaur & others, bearing RSA
No.3818 of 2010, decided on 25.10.2010.
The relevant extract of the said is reproduced as under: “The relief of
injunction can be sought by a co-sharer against other co-sharers
when such a co-sharer happens to be in exclusive possession of the
land to the exclusion of other co- sharers, but when the possession of all the
co- sharers is joint, relief of injunction cannot be sought by either of the co-
sharers and the only relief which is available to the co-sharer is to seek
partition by metes and bounds.
Gurjant Singh versus Jagdev Singh and others, RSA No.216 of 2018
decided on 10.12.2019
8. The appellant has not been able to prove that he is in exclusive possession
of the property. Rather the appellant himself admitted that respondents are
co-sharers in the suit property as reflected in the jamabandi Ex.P3 and
Ex.D1. In view of Full Bench judgment of this Court in Bachan Singh versus
Swaran Singh 2000(3) RCR (Civil) 70, the suit for permanent injunction by a
co-sharer against others co-sharers is not maintainable unless and until he is
able to prove his exclusive possession. In the present case, appellant has
miserably failed to prove that he is in exclusive possession of the suit
property.

Madras High Court reported in [2019 KHC 4009 : AIR 2019 NOC 446],
Sivakumar v. G.Chandrasekharan & anr.,

: “14. xxxx xxxx xxxx The contention of the appellant is that the co-owner
cannot file a suit against another co-owner for the prayer of injunction. On
co-owner cannot prevent the other from enjoying the common property. If
one co-owner prevents the other from enjoying the common property the
affected co-owner can certainly approach the Court for a relief. A co-owner
can enjoy his right over a common property without hindrance to the other
co-owner. The plaintiff has not approached the Court to prevent the
right of a coowner but has approached the Court to retain his right.
xxxx xxxx xxxx”
[2019 KHC 2039 : AIR 2019 J&K 1], Girdhari Lal v. Ram Lal, Jammu &
Kashmir High Court
“13. xxxx xxxx xxxx where one of the co-sharers is found encroaching upon
the property which is jointly owned and possessed by all the c-sharers, in my
humble opinion and as held in the judgments referred to above, suit for
injunction simpliciter is maintainable. There is no absolute law that suit for
injunction by one co-sharer against another co-sharer is not maintainable
and the cosharer approaching the Court should be relegated to the
alternative efficacious remedy of seeking partition. xxxx xxxx xxxx.”
In another decision reported in [2019 KHC 100 : AIR 2019 NOC 184],
Muttillath Valappil Vellachi (died) & Ors. v. Madhavi (died) & Ors., a
learned Single Judge of this Court had occasion to consider a seminal
question as to whether a co-owner should institute a suit for partition
invariably in all cases where he/she is put on notice of the intention of the
co-owner in possession of the property to dispossess other co-owners and
held in para.14 as under: “xxxx xxxx xxxx if one co-owner does not want to
institute a suit for partition, the law does not compel him to institute a suit
for partition. xxxx xxx xxxx”

J.RAJENDRAN PILLAI v B. BHASI & oRs, O.P(C).No.2487 of 2019, 25th

day of January, 2022
20. Back on the questions raised, to sum up, I am to hold that there is no
rigid or an unwavarable tenet that no injunction can be granted against one
co-owner at the instance of other coowner. In the following instances, one
co-owner can maintain a suit for injunction to protect his co-ownership right.
(i) If one co-owner prevents the other from enjoying the common property,
the affected co-owner can certainly approach the Court for appropriate relief
including prohibitory injunction to protect his coownership right so that one
co-owner can enjoy his right over the common property without hindrance to
the other co-owner/co-owners

v) one co-owner is not entitled to an injunction restraining another co-owner

from exceeding his rights in the common property, absolutely and simply,
because he is a co-owner. (v) before an injunction can be issued, the plaintiff
has to establish that he would sustain, by the act he complains, which
materially would affect his position as co-owner or his enjoyment or
accustomed user of the joint property would be inconvenienced or interfered
with by the said act of another co-owner

(vii) If one co-owner feels or apprehends obstruction in the matter of

enjoyment of his coownership right, he can very well institute a Suit
restraining the other co-owner from obstructing the enjoyment within the
sphere of co-ownership right, without disturbing the similar right of the other
coowner/co-owners, even without opting for partition

SUIT FOR INJUNCTION AGAINST DISPOSSESSION

SALEEM & ORS. V. WAHID MALIK, RSA 118/2022 & CM
APPL.42446/2022, CM APPL.42447/2022
17. The respondent having succeeded in proving possession over the suit
property, and no evidence having been led by the petitioners to indicate to
the contrary, or that the possession of the suit property by the respondent
was wrongful, a simplicitor suit for injunction against forcible dispossession
was maintainable without having to seek any titular rights over the suit
property

29. It is well settled that, in a suit for possession simplicitor or a suit for
injunction against dispossession simplicitor, the plaintiff is not required to
establish title or ownership. The plaintiff is only required to establish a better
right to remain in possession of the suit property as compared to the right of
the defendant.
A suit which does not claim titular rights and merely claims a right to
continue in possession without possession being disturbed save and except
in accordance with law, is not required to make out a case of title. The law
respects possessory rights over immoveable property, even in the absence
of valid title. A person in settled possession of immoveable property is
entitled under Section 9 of the Specific Relief Act, to continue in such
possession, without being dispossessed save and except in accordance with
law. In that view of the matter, the learned ADJ was correct in holding that no
question relating to title arose for consideration. The reliance, by the learned
ADJ, on the decision in Anathula Sudhakar1 is also apt.
A joint owner cannot prevent by injunction the usage of a portion of
the joint property by another co-owner unless this amounts to
wastage or destruction or injury to the other coowners. Every co-
owner has a right to use the joint property in a husband like manner
not inconsistent with similar rights of other co-owners.- Tarsem
Singh (deceased) through his LR versus Major Singh (deceased)
through his LRs & Others

Sant Ram Nagina Ram v. Daya Ram Nagina Ram

(1) A co-owner has an interest in the whole property and also in every parcel
of it.
(2) The possession of the joint property by one co-owner is, in the eye of law,
possession of all even if all, but one, are actually out of possessions.
(3) A mere occupation of a larger portion or even of an entire joint property
does not necessarily amount to ouster as the possession of one is deemed to
be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a co-owner
by another. But in order to negative the presumption of joint possession on
behalf of all, on the ground of ouster, the possession of a co-owner must not
only be exclusive, but also hostile to the knowledge of the other, as when a
co-owner openly asserts his own title and denies that of the other.
(5) Passage of time does not extinguish the right of the co-owner who has
been out of possession of the joint property except in the event of ouster or
abandonment.
(6) Every co-owner has a right to use the joint property in a husband like
manner not inconsistent with similar right of other co-ownerss.
(7) Where a co-owner is in possession of separate parcels under an
arrangement consented to by the other co-owners, it is not open to any one
to disturb the arrangement without the consent of others except by filing a
suit for partition.
(8) The remedy of a co-owner not in possession or not in possession of a
share of the joint property, is by way of a suit for partition or for actual
possession, but not for ejectment. Same is the case where a co-owner sets
up an exclusive title in himself.
(9) Where a portion of the joint property is by common consent of the co-
owners, reserved for a particular common purpose, it cannot be diverted to
an inconsistent user by a co-owner; if he does so, he is liable to be ejected
and the particular parcel will be liable to be restored to its original condition.
It is not necessary in such a case to show that special damage has been
suffered.
ALIENATION S.Umamaheswari … vs P.Murugesan on 6 October, 2017
A prayer for restraint on alienation can be an interlocutory prayer in a suit for
partition or specific performance or a suit seeking a declaratory relief. A
restraint of alienation for a limitated period could be granted to
avoid http://www.judis.nic.in
 C.R.P.Nos. 718, 2289 & 3018 of 2018 amd C.M.P.Nos. 14324, 17525 & 17079
of 2018 multiplicity of proceedings. But in a case where the plaintiff can
initiate the appropriate legal proceeding to obtain a larger relief and refuses
to do so, the said plaintiff cannot be favoured with a decree for permanent
injunction that too restraining the alienation.
In a suit for simplicitor injunction, it is not sufficient for the plaintiff to merely
prove their possession of the property. They must also establish that their
possession is being disturbed or that there is a reasonable apprehension of
disturbance. The burden of proof lies on the plaintiff to provide independent
evidence supporting their claim of possession [G. Ramanaiah VS K.
Krishnaiah].

Furthermore, it is important to note that in a suit for possession simplicitor or

a suit for injunction against dispossession simplicitor, the plaintiff is not
required to establish title or ownership. They only need to demonstrate a
better right to remain in possession compared to the defendant [Saleem VS
Wahid Malik].

In the case of a suit for permanent injunction simplicitor, the plaintiff must
establish their lawful possession and enjoyment of the property, as well as
the defendant's attempt to disturb their possession without any entitlement
[Thulasiammal VS Amsammal]. The plaintiff needs to prove their possession
and enjoyment both on the date of the suit and subsequent to it [Palani VS
Sabapathi].

However, it is worth noting that a suit for injunction simplicitor without

possession is not maintainable [Ramjeevan Gautam Jattav VS Sumandevi
Kardam]. The plaintiff must be able to demonstrate their possession of the
property in order to seek an injunction [Ramjeevan Gautam Jattav VS
Sumandevi Kardam].

It is important to adhere to the specific relief sought in a suit for simplicitor

injunction. The relief is limited to obtaining an injunction and does not
include a claim for possession. Therefore, if a trial court grants a decree for
possession in a suit for injunction simplicitor, it would be impermissible under
the law [Phuyian(deceased) through her L. Rs. Umed Ram VS Krishan Kumar
(deceased) through his L. Rs. ][Bal Raj Sahni VS Krishan Kumar][Bal Raj Sahni
VS Krishan Kumar].

Based on the provided data, it is clear that in a suit for simplicitor injunction,
the plaintiff must establish both their lawful possession and the disturbance
or apprehension of disturbance to their possession. It is essential for the
plaintiff to present independent evidence supporting their claim of
possession. Additionally, it is crucial to differentiate between a suit for
possession simplicitor and a suit for injunction simplicitor, as the relief
sought in each case is distinct.