2025:UHC:9575 SL. No. Dat e Office Not es, r epor t s, or der s or pr oceedin gs or dir ect ion s an d Regist r ar ’s or der w it h Sign at u r es COURT’S OR JUDGE’S ORDERS A.O. No.350 of 2025 Hon ’ble Alok Mah r a, 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 2025:UHC:9575 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 2025:UHC:9575 without an explicit act of exclusion or partition. 9. In the present case, since no legal partition has been carried out between the parties, the alienation of the specific plot by respondent nos. 1 and 2 in favour of respondent no. 3 cannot be said to confer any exclusive right or possession thereupon. The learned trial Court, therefore, erred in rejecting the injunction application on an erroneous premise that the appellants have not sought the relief of possession. The primary relief being one of mandatory injunction for restoration of possession suffices for consideration of interim protection. 10. Consequently, the Appeal from Order succeeds and is hereby allowed. The impugned order dated 25.08.2025 passed by the learned Civil Judge (Senior Division), Almora in Civil Suit No. 9 of 2025 is set aside. 11. The parties are directed to maintain status quo with respect to nature, title, and possession of the disputed property, as it exists on the date of this order. 12. Considering the nature of the dispute, it is requested that the learned Civil Judge (Senior Division), Almora shall make all endeavours to decide Civil Suit No. 9 of 2025 expeditiously, preferably within a period of one year from the date of production of a certified copy of this order. ( Alok Mah r a, J.) 30.10.2025 Arpan ARPAN JAISWAL Digitally signed by ARPAN JAISWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eabb68a3895e41937c266c23964c0485365445e3 a20dddb7393398f9fe45ba3e, postalCode=263001, st=UTTARAKHAND, serialNumber=060FC17022BEAE3DE215D68D9D454C510 9CB987446351E4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL Date: 2025.10.31 11:22:52 +05'30'