1 2025:UHC:8753 Reserved on 25.09.2025 Delivered on 26.09.2025 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal from Order No. 253 of 2025 (Under Order 43 Rule 1(r) of the Civil Procedure Code, 1908) Beena Sah & Others .………..Appellants Versus Deepa Sah and Others ….….Respondents ---------------------------------------------------------------------- Presence:- Mr. P.C. Maulakehi along with Mr. Kartikey Maulakhi, learned counsel for the appellant. Mr. Piyush Garg, learned counsel for respondent nos. 1 to 3. No representation for respondent nos. 4 to 7. ---------------------------------------------------------------------- Hon’ble Mr. Alok Mahra, J. Present appeal has been preferred against the judgment and order dated 25.06.2025 passed by the learned Civil Judge (Senior Division), Nainital in Civil Suit No. 55 of 2023 “Deepa Shah and Others vs. Dr. Gangadhar Prasad Shah & Others”. By the said order, the learned trial court partly allowed the application for temporary injunction (Paper No. 52- Ga) filed by respondent nos. 1 to 3/plaintiffs in a partition suit and restrained the appellant, who is one of the four co-sharers of the suit property, from running and advertising car parking in the tennis court area situated to the south of Rituraj building (as 2 described in Schedule ‘A’ of the plaint), without the prior permission of other co-sharers, and further restrained the appellant from creating third-party interests over the property during the pendency of the suit. 2. Brief facts necessary for adjudication of the appeal are that in the year 2003, respondent nos. 1 to 3/plaintiffs instituted a suit for partition and permanent injunction in the court of Civil Judge (Senior Division), Nainital against the appellants and other respondents (nos. 4 to 7). The said suit is still pending. During pendency, plaintiffs moved an application for temporary injunction to restrain the appellants from running a car parking in the tennis court area. The trial court, by the impugned order, granted injunction against the appellants. Hence, this appeal. 3. Learned counsel for the appellants would submit that the plaintiffs themselves admitted in their plaint that Late Smt. Basanti Devi Shah, wife of late Chandra Lal Shah, was the owner of Schedule ‘A’ property. By a Will, she bequeathed the same to her daughter Smt. Vidya Sah and her four sons, namely: (i) Krishna Lal Shah, (ii) Dr. Gangadhar Prasad Shah 3 (respondent no.4 herein), (iii) Chandra Shekhar Shah (predecessor of respondents nos.1–3), and (iv) Mahesh Prasad Shah (husband/father of respondents nos.5–7). Mutation was accordingly done in Municipal Board records. The said four sons along with Smt. Vidya Sah also inherited Schedule ‘B’ property after the death of late Bhawani Das Shah. All four brothers thus became co-owners, each entitled to 1/4th share in Schedule ‘A’ and Schedule ‘B’ properties. Plaintiffs further admitted the subsequent deaths of the co- sharers (Vidya Sah in 1999, Krishna Lal in 2005, Mahesh Prasad in 2015, and Chandra Shekhar in 2020), whereas respondent no.4 is still alive. Thus, the appellants are entitled to 1/4th undivided share in both Schedule ‘A’ and Schedule ‘B’ properties. 4. Learned counsel for the appellant would submit that despite such admission, plaintiffs/respondents with mala fide intention, in order to grab the tennis court area (6270 sq.ft.) where appellants are running a car parking for a considerable time, filed the temporary injunction application on frivolous grounds. The trial court, ignoring appellants’ objections and documents, wrongly allowed the injunction; that, respondents 4 nos.1–3 are already in possession of the bulk of Schedule ‘A’ property, including the entire Rituraj Building consisting of 21 rooms and outhouses, except four rooms occupied by respondents nos.5–7. The plaintiffs fenced and enclosed the area in their occupation with iron gates without any partition, despite holding only ¼ share. Now, by seeking injunction, they want to deprive appellants of even the small portion used as car parking. 5. Learned counsel for the appellant would further submit that the car parking area (tennis court) is only 6217 sq.ft. out of 4 acres (1,74,240 sq.ft.) comprising Schedule ‘A’. With mutual consent of co-sharers, this portion was being used by appellants, who remain in possession. Plaintiffs, therefore, have no legal right to restrain appellants from its use. Learned Counsel further points out that plaintiffs/respondents nos.1–3 forcibly occupied major portions of Rituraj building and land, beyond their ¼ share; that, respondent no.4 (Dr. Gangadhar Prasad Shah) has constructed a three-storied building on Schedule ‘A’ property and is running a school (Forest Hill Academy); that, respondents nos.5–7 are also occupying four rooms; that, only the appellants are 5 left without any residence or substantial enjoyment of Schedule ‘A’ property, except the said tennis court used as parking. 6. Learned counsel for the appellants would further contends that injunction against a co-owner is legally impermissible; that, the possession of one co- owner is deemed to be possession of all; that, unless there is ouster or denial of rights, injunction cannot be granted against co-sharers. Plaintiffs failed to establish prima facie case, irreparable injury, or balance of convenience in their favour. The provisions of Order XXXIX Rules 1 & 2 C.P.C. were wrongly applied. It is further argued that respondents themselves are commercially exploiting the property: respondent nos.1–3 are running a homestay in Rituraj building, and respondent no.4 is running a school. The appellants’ use of the tennis court as car parking neither alters the nature of the property nor causes any loss. The District Magistrate, after due inquiry, confirmed there was no illegal hill-cutting and granted permission for parking, which is also registered under GST. 7. Learned counsel for appellants relies upon the judgment of the Hon’ble Supreme Court in T. 6 Ramalingeswara Rao (Dead) through LRs. & Anr. v. N. Madhava Rao & Ors., (2019) 4 SCC 608, wherein it was held that possession of one co-sharer is possession of all and injunction cannot be granted by one co-sharer against another, unless ouster is proved, thus, the impugned order is unsustainable in law and liable to be set aside. 8. Learned counsel for the appellant also relied upon the judgment of Hon’ble Punjab and Haryana High Court in the case of Bachan Singh Vs. Swaran Singh 2000 SCC OnLine P&H 233, wherein the Court emphasized that in cases of co-ownership, possession by one co-owner is, in law, possession for all—unless there's an express assertion of exclusive ownership amounting to ouster. 9. He also relied upon the judgment of Hon’ble High Court of Allahabad in the case of Sahanaz Begum Vs. District Judge Sultanpur and Others 2023 SCC OnLine All 3231. Paragraph nos.23 & 26 is extracted hereunder: “23. In a recent judgment of Hon'ble the Supreme Court the aforesaid aspect has already been taken care of and adjudicated in the case of T. Ramalingeswara Rao (Dead) through Legal Representatives and Another versus N. Madhava Rao and others reported in (2019)4 Supreme Court Cases 608 wherein the aspect of whether injunction can be granted against co-sharers has been dealt with in the following manner:- 7 "16. In our view, even assuming that the plaintiffs claimed to be in possession of the suit property (which the two courts below did not find in their favour) for claiming injunction, yet they were not entitled to claim injunction against the other co-sharers over the suit property. It is a settled principle of law that the 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 26. In view of aforesaid discussion, this Court comes to the considered conclusion that there is no error in the orders impugned pertaining to the fact that injunction could not have been granted in favour of plaintiff against other co- sharer without partition being effected between them and without any averment that the exclusive share of the plaintiff was being trampled upon by the other co-sharers.” 10. Per contra, learned counsel for the respondents would submit that the property in question, as described in Schedule ‘A’ of the plaint, is in the joint possession of all the parties. Several houses have already been constructed by the appellants under their own secret arrangement; therefore, it is wholly incorrect to contend that 90% of the entire property mentioned in Schedule ‘A’ of the plaint is in possession of the respondents. In fact, the respondents are in possession of only about 2200–2300 sq. ft. of land area. The appellants, on the other hand, are in possession of the property described in Schedule ‘B’ of the plaint, situated at 8 Lala Bazar, Almora, which is one of the prime locations in Almora town and is presently being utilized by the appellants for commercial purposes. 11. Learned counsel for the respondents would further submit that the application for temporary injunction filed by respondent nos. 1 to 3/plaintiffs was not filed with any malafide intention, as alleged, since the appellants had been operating a commercial car parking in the property in question without authority. On an application made under the Right to Information Act, the competent authority categorically informed the respondents that no permission whatsoever had been granted to the appellants for running any commercial parking on the property in question. 12. Learned counsel for the respondents would further submit that the father of the answering respondent had four brothers and three sisters; therefore, in any case, the appellants cannot claim 1/4th share in the property. To this effect, the learned trial court has already framed issues vide its order dated 21.07.2025. It is further contended that the allegations made by the appellants that the answering respondent is an aggressive lady or that she has 9 occupied the entire Rituraj Building, outhouse or campus area, or that she forcefully constructed an iron gate to occupy the tennis court area, are absolutely false and baseless. The application for temporary injunction was fully maintainable and has rightly been allowed by the learned trial court. He has relied upon the judgment in Tanushree Basu and Others v. Ishani Prasad Basu and Others, (2008) 4 SCC 791, wherein paragraph no. 23 is relevant, which reads as under: 23. It is not the law that a party to a suit during pendency thereof shall take law into his hands and dispossess the other co-sharer. If a party takes recourse to any contrivance to dispossess another, during pendency of the suit either in violation of the order of injunction or otherwise, the court indisputably will have jurisdiction to restore the parties back to the same position. 13. In view of aforesaid discussion, this Court comes to the considered conclusion that there is no error in the orders impugned pertaining to the fact that injunction could not have been granted in favour of plaintiff against other co-sharer without partition being effected between them and without any averment that the exclusive share of the plaintiff was being trampled upon by the other co-sharers. 10 14. Heard learned counsel for the parties and perused the material available on record. 15. It is not in dispute that Late Smt. Basanti Devi Shah, wife of late Chandra Lal Shah, was the owner of Schedule ‘A’ property. By her Will, she bequeathed the same to her daughter Smt. Vidya Sah and her four sons, namely: (i) Krishna Lal Shah, (ii) Dr. Gangadhar Prasad Shah (respondent no.4 herein), (iii) Chandra Shekhar Shah (predecessor of respondents nos.1–3), and (iv) Mahesh Prasad Shah (husband/father of respondents nos.5–7) and the mutation was accordingly carried out in the records of the Municipal Board. It is further admitted that the said four sons along with Smt. Vidya Sah also inherited Schedule ‘B’ property after the death of late Bhawani Das Shah. Thus, all four brothers became co-owners, each entitled to one-fourth undivided share in both Schedule ‘A’ and Schedule ‘B’ properties. The subsequent deaths of Vidya Sah (1999), Krishna Lal (2005), Mahesh Prasad (2015), and Chandra Shekhar (2020) are also admitted. Respondent no.4 is still alive. On these admitted facts, the appellants, being legal heirs of one of the co-sharers, are also the co-sharers of the property in 11 question. 16. The principle of law with respect to co- ownership is well-settled. The possession of one co- owner is deemed to be possession on behalf of all co- owners. Unless there is a clear case of ouster, denial of title, or exclusion for the statutory period, one co- owner cannot restrain another co-owner from using the joint property. It is also well settled that possession of one co-sharer is in law possession of all, and injunction cannot be granted against a co- owner except in cases of ouster; that, without partition or exclusive allotment of share, one co- sharer cannot claim injunction against another. 17. In the present case, the plaintiffs/respondents have admittedly enclosed and occupied substantial portions of the Rituraj Building and land without partition, while respondent no.4 has constructed a three-storied building and is running a school. The appellants are using a limited portion of the tennis court area for parking purposes. The said use does not amount to ouster of the plaintiffs nor does it materially alter the character of the property. 18. The trial court failed to appreciate that an injunction against a co-owner in such circumstances 12 is legally impermissible. The balance of convenience also does not lie in favour of the plaintiffs/respondents, as they are already enjoying substantial portions of the property. No irreparable loss has been shown to them. At best, any grievance with regard to allotment or mode of enjoyment can only be resolved upon final partition. 19. At the same time, since the appellants are admittedly running a commercial parking, this Court considers it appropriate to regulate the use so as to protect the rights of other co-sharers. Accordingly, while setting aside the impugned order, it is directed that the appellants may continue to use the tennis court area for parking, subject to the following conditions: (i) The appellants shall maintain the parking area in a clean and properly lighted condition. (ii) A functional washroom shall be provided for the drivers and staff. (iii) The respondents, being co-sharers, shall be entitled to park their personal vehicles in the said area without payment of any charges. 20. Subject to the above conditions, the appeal is allowed. The order dated 25.06.2025 passed by the 13 Civil Judge (Senior Division), Nainital in Civil Suit No. 55 of 2023 is set aside. 21. Pending applications, if any, also stand disposed of accordingly. (ALOK MAHRA, J.) Dated: 26.09.2025 Mamta MAMT A RANI Digitally signed by MAMTA RANI DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=6a812005bebfcf46f244f3e 584af1449e430ef900bf09a6d67ebb d642671329b, postalCode=263001, st=Uttarakhand, serialNumber=5de1751a4f1d9cabf d54852c9e68911ca8b66dd26690a1 91648ab5d8dd004ef0, cn=MAMTA RANI Date: 2025.09.26 16:08:11 +05'30'