Punjab-Haryana High Court
Jito vs Shanti Devi on 21 November, 2025
RSA-4737-1999 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-4737-1999 (O&M)
Reserved on :-19.11.2025
Date of Pronouncement:-21.11.2025
Uploaded on :-21.11.2025
Jito
... Appellant
Versus
Shanti Devi (Since Deceased) through her LRs
... Respondent
****
CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Argued by :-
Mr. Satvik Bansal, Advocate with
Mr. Amitabh Tiwari, Advocate
for the appellant.
Mr. Sandeep Vermani, Advocate along with
Mr. Sandeep K. Sharma, Advocate,
Mr. Aditya Vermani, Advocate and
Mr. Ajay Pal Singh Gill, Advocate
for the respondent.
****
VIRINDER AGGARWAL, J.
1. The appellant/defendant, being aggrieved by the judgment and
decree dated 28.08.1999 passed by the learned Additional District Judge,
Gurgaon whereby the well-reasoned judgment and decree dated 22.03.1997
of the learned Additional Civil Judge (Senior Division), Gurgaon was
erroneously reversed respectfully invokes the appellate jurisdiction of this
Court through the instant Regular Second Appeal (for short to be referred
as "RSA"). The appellant seeks restoration of the decree rightly rendered
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by the Trial Court and appropriate redressal for the substantial injustice
occasioned.
1.1. It is most respectfully submitted that the impugned judgment
and decree are vitiated by palpable perversity, foundational errors of law,
and a manifestly flawed appreciation of evidence, culminating in grave
miscarriage of justice. The appellant, therefore, earnestly prays for the
setting aside of the impugned judgment and decree and for reinstatement of
the lawful and well-considered decree of the learned Trial Court.
2. For the sake of coherence and continuity, the parties shall,
hereinafter, be described as the plaintiff and defendant, in accordance with
their respective positions before the learned Trial Court. The essential and
relevant facts underpinning the initiation of the present proceedings are
succinctly delineated below:-
"The plaintiff, having purchased the suit property
through a valid sale deed and holding Mutation No. 17776
dated 16.01.1999 in her favour, asserts lawful ownership and
peaceful possession of a 147 sq. yard residential plot
delineated in red and green within site plan ABCD, forming
part of Khasra No. 1168/1, Baldev Nagar, Gurgaon. She
alleges that the defendant, lacking any right, title, or interest,
has threatened unlawful encroachment by attempting
construction and depositing building material with the intent
to forcibly dispossess her. She further submits that, if the
defendant takes possession of any portion during the
pendency of the suit, it must be restored through mandatory
injunction."
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3. Notice of the suit was issued, prompting the defendant to file a
written statement raising preliminary objections regarding maintainability,
locus standi, estoppel, and alleged suppression of material facts, thereby
disputing the plaintiff's entitlement to equitable relief.
3.1. On merits, the defendant claimed independent right, title, and
interest in the suit property, asserting that the plaintiff's predecessor was
not owner of the entire land and had executed a sale deed beyond her
legitimate share. She maintained that, as owner in possession of land
comprising Khewat No. 2295, Khasra No. 1168/1, she had constructed a
pucca house and a 3½-foot boundary wall, with a right to increase it to six
feet. Alleging that the plaintiff sought to encroach upon her lawful share,
she denied the plaintiff's title and possession and contended that the suit
lacked cause of action and deserved dismissal with costs.
4. The plaintiff filed a replication, unequivocally reiterating and
reaffirming the material averments contained in the plaint, while expressly
denying and disputing the objections and assertions raised by the
defendants. Upon a careful scrutiny of the pleadings, documents, and
submissions of both sides, the Court proceeded to frame the following
issues for adjudication, so as to ensure a precise and comprehensive
determination of the parties' competing claims and defenses, as enumerated
below:-
1. Whether the plaintiff is owner in possession of the disputed 147 sq.
yards plot fully described in para No.1 of the plaint ? OPP
2. Whether the plaintiff has no locus standi to bring this suit? OPD
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the plaintiff is estopped by his own acts and conduct from
bringing this suit? OPD
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5. Relief.
5. Both parties were granted sufficient opportunity to adduce
evidence in support of their respective stands. Upon conclusion of the trial
and after hearing learned counsel on both sides, the learned Additional
Civil Judge (Senior Division), Gurgaon dismissed the suit, recording
findings in favour of the appellant/defendant and observing that "In light of
the findings recorded on the foregoing issues, the plaintiff's suit is devoid
of merit and is accordingly dismissed. No order as to costs".
5.1. Aggrieved by this decree, the appellant/respondent preferred
an appeal before the learned Additional District Judge, Gurgaon and the
appellant/respondent, which was allowed, decreeing the suit of the
respondent/plaintiff with following observations:-
"Given the circumstances, the trial court's observation that
neither party proved ownership or possession of specific
portions is untenable, as both stand in undisputed possession
of defined areas. The appeal is accordingly allowed, and the
plaintiff's suit for mandatory injunction is decreed, directing
removal of the encroachment measuring 6' × 4" × 54' on the
western side of the boundary marked OR in site plan Ex.
PW3/C1. Parties shall bear their own costs."
6. Dissenting from the judgment and decree of the learned First
Appellate Court, the appellant/defendant instituted the instant appeal. Upon
its admission, notice was duly served upon the respondents; respondent
entered appearance and contested the matter. The records of the learned
lower Courts were thereafter summoned for comprehensive scrutiny and
adjudication.
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7. I have heard learned counsel for the parties and carefully
examined their submissions in conjunction with the pleadings, evidence,
and the findings recorded by the learned Courts below. The record has been
meticulously reviewed to determine 'whether the impugned judgments and
decrees suffer from any legal error or infirmity warranting interference by
this Court'.
8. The instant appeal raises the following 'quaestio juris
substantialis' for adjudication and determination before this Court:-
"Whether a claim for mandatory injunction, predicated upon alleged
exclusive possession of an undivided joint estate, can be sustained in
law when the relief is sought against a co-owner."
9. Learned counsel for the appellant-defendant submits that the
learned First Appellate Court erred both in its appreciation of the evidence
and in the weight, it attached to the report of the Local Commissioner.
Counsel argues that the court mis-interpreted the documentary and oral
evidence on record and unduly relied upon the Local Commissioner's
findings to reach its conclusions. Crucially, it is contended that the suit
property is admitted to be joint land of the parties; in that factual matrix a
suit seeking a mandatory injunction against a co-sharer is not maintainable.
Accordingly, the First Appellate Court's reliance on the Local
Commissioner's report and its consequent findings represent a material
misdirection of law and fact.
10. Conversely, learned counsel for the respondent-plaintiff
submits that the judgment of the learned First Appellate Court is free from
any illegality or infirmity. He contends that the First Appellate Court
correctly held that the joint property had already been partitioned among
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the co-sharers, and therefore the plea of joint ownership is misconceived. It
is further argued that the existing revenue entries carry no determinative
value in the present context, as a residential colony has been carved out
over the suit land as well as the adjoining parcels, and the original owners
had left passages and demarcated portions accordingly. The respondent-
plaintiff, having purchased a specific, identifiable portion of the property, is
thus entitled to seek protection of his possession and the relief granted by
the First Appellate Court was rightly upheld.
11. A plain reading of the plaint filed by the respondent-plaintiff
unequivocally reveals that the suit has been instituted for a decree of
permanent injunction on the assertion that she is the owner in possession of
a plot measuring 147 square yards, fully delineated in the head-note of the
plaint and forming part of Khasra No.1168/1. The plaintiff has further
pleaded that Mutation No.17776, dated 16.01.1989, was duly sanctioned in
her favour. Significantly, the plaint is bereft of any averment suggesting
that a residential colony had been carved out by the previous owners, or
that the suit land being part of a larger joint holding had been partitioned
among co-owners, thereby vesting exclusive ownership and possession of
the suit property in the plaintiff's vendor.
11.1. During cross-examination, the plaintiff, Shanti Devi, candidly
admitted that she purchased the plot from Smt. Rajwati, daughter of Yukti.
She further conceded that defendants Jeeto and Raju were co-sharers in the
joint khewat and that, at the time of her purchase, one room belonging to
Jeeto already existed on the property. Mutation No.17776, which forms the
very foundation of the plaintiff's claim, clearly records that Smt. Rajwati
was a co-owner to the extent of a 1/24th share in land measuring 1 Bigha 2
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Biswa. The mutation reflects that she transferred only her fractional
undivided share to the plaintiff, and that possession continued in the same
manner as it existed prior to the sale. Crucially, the mutation does not
record that the plaintiff was ever placed in exclusive possession of any
specific, demarcated portion of the joint holding.
11.2. In these circumstances, the plaintiff's purchase of an undivided
share in joint property cannot confer upon her the right to seek an
injunction against other co-owners. It is well-settled that a suit for
mandatory or prohibitory injunction at the instance of one co-owner against
another is not maintainable in the absence of partition, as a co-owner in
settled possession cannot be dispossessed on the strength of such relief
claimed by another co-owner. This legal position stands fortified by the
judgment of the Hon'ble Supreme Court in SK. Golam Lal Chand v.
Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and Others,
Civil Appeal No. 4177 of 2024, the relevant observations of which are
reproduced hereinbelow for ready reference:-
Since the suit property has many co-owners including the plaintiff-
respondent Nandu Lal and Brij Mohan, the defendant-appellant S.K.
Golam Lalchand could not have acquired right, title and interest in the
whole of the suit property solely on the basis of the sale deed dated
19.05.2006 executed by Brij Mohan. The said sale deed, if at all, in
accordance with Section 44 of the Transfer of Property Act, 1882 may
be a valid document to the extent of the share of Brij Mohan in the
property and defendant- appellant S.K. Golam Lalchand is free to take
remedies to claim appropriate relief either by suit of partition or by suit
of compensation and damages against Brij Mohan.
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11.1. In Ramdas v. Sitabai and Others, (2009) 7 SCC 444, the
Hon'ble Supreme Court, while elucidating the governing principles relating
to co-ownership and the nature of possession flowing therefrom, has
authoritatively pronounced in paragraphs 16 and 17 as follows:-
16. It is settled law under the Transfer of Property Act, 1882 that a
purchaser cannot have a better title than what his vender had. The
possession which is claimed by Defendant 3 Ramdas (the appellant
herein) in respect of the entire land bearing Gat No. 19 area
admeasuring 2.56 H of Mouza Padoli was also illegal and without
proper sanction of law. So long as the property is joint and not
partitioned, Defendant 3 Ramdas (the appellant herein) is not
entitled to get possession of the said land. Even otherwise, the
appellant herein having purchased the land from Defendant 1
Sudam could be entitled to be declared at the most to the extent of
half-share of the said piece of land having stepped into the shoes of
his vendor and could not have asked for and claimed ownership and
possession over the entire land of Gat No 19 admeasuring 2.56 H.
17. Without there being any physical formal partition of an undivided
landed property, a co-sharer cannot put a vendee in possession
although such a co-sharer may have a right to transfer his undivided
share. Reliance in this regard may be placed to a decision of this
Court in M.V.S. Manikayala Rao v. M. Narasimhaswami¹ wherein
this Court stated as follows: (AIR p. 473, para 5)
"5. Now, it is well settled that the purchaser of a coparcener's
undivided interest in joint family property is not entitled to
possession of what he has purchased. His only right is to sue
for partition of the property and ask for allotment to him of
that which on partition might be found to fall to the share of
the coparcener whose share he had purchased."
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12. Accordingly, when the suit property indisputably forms part of
an unpartitioned joint holding which continues to stand recorded as joint in
the revenue entries, notwithstanding the fact that different co-owners may
be in separate actual possession of distinct portions, the remedy of a co-
sharer does not lie in instituting a suit for permanent or mandatory
injunction against another co-owner. In such circumstances, the only
appropriate and legally permissible course open to the respondent-plaintiff
was to seek partition of the joint estate through due process of law.
13. Consequently, the appeal preferred by the appellant is hereby
allowed. The impugned judgment and decree rendered by the learned First
Appellate Court is set aside, and the well-reasoned judgment and decree of
the learned Trial Court stands restored in its entirety.
14. In view of the final adjudication of the principal matter, all
pending miscellaneous applications, if any, arising from or incidental to the
present proceedings, shall also stand disposed of by necessary implication.
No further orders are required to be passed thereon, as their adjudication no
longer survives in light of the conclusions reached in the main case.
( VIRINDER AGGARWAL)
21.11.2025 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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