Madhya Pradesh High Court
Chhotelal vs Rajkumar Kumar @ Ganga Prasad Bramhan on 11 September, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:44001
1 MP-4857-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 11th OF SEPTEMBER, 2025
MISC. PETITION No. 4857 of 2025
CHHOTELAL
Versus
RAJKUMAR KUMAR @ GANGA PRASAD BRAMHAN
Appearance:
Shri Ravinandan Dwivedi - Advocate for the petitioner.
ORDER
The present petition under Article 227 of the Constitution of India has
been filed by petitioner challenging the order dated 16.7.25 (Annexure-P/5)
and order dated 03.02.2024 (Annexure-P/4) passed by the Appellate Court
and the Civil Court rejecting the appeal and application filed by the
petitioner/defendant under Order 39 Rule 1 and 2 of CPC respectively.
It has been contended by the learned counsel for the petitioner that the
suit has been filed by the respondent for declaration, restoration of
possession and permanent injunction. It has also been averred in the plaint
that the disputed land is a joint family property of plaintiff and defendants
no. 1 to 4. The defendant no.1, without informing the plaintiff, has got
partition done in his absence from the authorities and sold some of the land
of the joint family and therefore, prayed for declaration, restoration of
possession and permanent injunction. It has been contended by counsel for
the petitioner that the petitioner, being the defendant, has filed an application
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under Order 39 Rule 1 and 2 of CPC which has been dismissed by order
dated 03.02.2024 (Annexure-P/4) holding that the defendant could not
establish prima facie case, balance of convenience and irreparable loss in his
favour on the basis of the Will executed by the mother in favor of the
defendant. The said finding has been affirmed by the Appellate Court vide
order dated 16.07.25 (Annexure-P/5) holding that the petitioner/defendant
could not file any such documents to demonstrate that he has been in
possession in portion of the disputed land. The documents of khasra which
have been submitted by the petitioner/defendant are different than the
disputed land. The petitioner/defendant has also not disclosed that on which
date the co-owners have tried to dispossess the petitioner/defendant and on
the basis, has found that the petitioner/defendant could not establish prima
facie case, balance of convenience and irreparable loss in the case and
accordingly, dismissed the appeal.
It is evident from the plaint averments and the findings arrived at by
the Court below that the suit has been filed with the averments that the suit
property is a joint family property and the defendant has slimely got executed
the partition deed in absence of the responding/plaintiff and as such, prima-
facie, it is on record that the property is a joint family property.
It is a settled principle of the law that every co-owner is the owner of
every inch of the property. It is also settled that the co-owner cannot seek
injunction against the co-owner as held by the Hon'ble Apex Court in the
case of Tanusree Basu and others v. Ishani Prasad Basu and others , reported
in (2008) 4 SCC 791 has held as under:
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"17. Strong reliance has been placed by Mr Banerjee on
a judgment of the Bombay High Court in Bhaguji
Bayaji Pokale v. Kantilal Baban Gunjawate [AIR 1998
Bom 114: (1998) 3 CCC 377 (Bom)] wherein it was
held: (AIR p. 117, para 8)
"8[7]. With regard to second substantial
question of law i.e. the co-owner cannot
claim an order of injunction against another
co-owner with regard to the property owned
jointly, the learned counsel for the appellants
has relied upon the Apex Court's judgment in
Mohd. Baqar v. Naim-un-Nisa Bibi [AIR
1956 SC 548]. The Apex Court has very
categorically held in para 7 as under: (AIR p.
550)
"7... The parties to the action are
co-sharers, and as under the law,
possession of one co-sharer is
possession of all co-sharers it
cannot be adverse to them, unless
there is a denial of their right to
their knowledge by the person in
possession, and exclusion and
ouster following thereon for the
statutory period."
It was observed : (AIR p.117, para 10)
"10. ... Similarly, the legal position
that the co-owner or co-sharer of
the property can never claim
ownership by adverse possession
of the other share. This is also a
well-settled law."
Therefore, in the considered opinion of this Court, the Court below has
rightly exercised its jurisdiction in not allowing the application submitted by
the petitioner/defendant under Order 39 Rule 1 and 2 of CPC and also the
Appellate Court has not committed any error of law or jurisdiction in
NEUTRAL CITATION NO. 2025:MPHC-JBP:44001
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affirming the said order on the aforesaid principle of law.
Thus, the petition filed by the petitioner is misconceived and is hereby
dismissed. No order as to cost.
(DEEPAK KHOT)
JUDGE
Priya.P
