Holding

A co‑owner cannot dispossess another co‑owner who is in mutually agreed separate possession, and the trial court’s order under Section 151 CPC directing removal of the padlock was valid.

Summary

The appellants and respondents were co‑owners of undivided property and had entered into a development agreement that allotted three separate flats (Nos. 201, 202 and 301) to each party by mutual adjustment. The appellants filed a suit for partition and sought an interim injunction to restrain the respondents from dealing with the flats, but the trial court rejected the injunction. While the appeal against that order was pending, the appellants placed a padlock on flat No. 201, which was occupied by the first respondent. The respondent filed an application under Section 151 of the CPC for the removal of the padlock; the trial court ordered its removal and the High Court upheld that order. The appellants appealed to the Supreme Court, contending that a mandatory injunction could not be granted before a final decree and that the respondent was not in exclusive possession. The Court held that when co‑owners have mutually agreed separate possession of distinct flats, one co‑owner cannot dispossess another by a padlock, and that the trial court correctly exercised its power under Section 151 CPC (in addition to Order 39 Rule 1) to grant the injunction. Consequently, the appeal was dismissed.

Issues considered

The power of a court to grant a mandatory injunction against a co‑owner under Section 151 CPC when Order 39 Rule 1 does not apply.
Whether a co‑owner can be dispossessed by another co‑owner who has placed a padlock on the former's flat during pendency of a partition suit.
Whether an interim mandatory injunction can be granted before the final decree in a partition suit where separate possession has been mutually agreed.

Legislation cited

Code of Civil Procedure, 1908s. 151, s. Order 39 Rule 1, s. Order 39 Rule 2

Subjects

partition suitco‑ownershipinterim injunctionmandatory injunctionCPC Section 151Order 39possessionpadlockmutual agreement

Judgment

[2008] 3 S.C.R. 1195

~·
' TANUSREE BASU & ORS. A
v.
!SHANI PRASAD BASU & ORS.
Civil Appeal No. 1767 of 2008
MARCH 5, 2008
B
t (S.B. SINHA AND V.S. SIRPURKAR, JJ.)
...
Code of Civil Procedure, 1908:
s. 151 and Or. 39 rr. 1 and 2 - Interim injunction - Claimed
by defendant- Suit for partition - Parties by mutual agreement c
occupying separate flats constituting undivided shares -
Pending appeal against refusal to grant interim injunction to
plaintiffs, they putting padlock in the flat in occupation of
defendant - HELD: If under mutual adjustment parties were
'k in separate possession of flats, plaintiffs could not have put D
~ padlock to dispossess the defendant - Or. 39, r.1 is not sole
repository of power of court to grant injunction - s. 151 also
confers power upon court for the purpose, if matter is not
covered by Or.39, rr 1 and 2- Order of High Court upholding
interim injunction granted by trial court, warrants no E
interference.
The plaintiffs-appellants filed a suit against the
defendants-respondents for partition of their undivided
shares in the properties described in Schedules 'A' and
'B' to the plaint. The properties in Schedule 'B' were F
subject to a development agreement, and three flats
therein, including flat no. 201, were admittedly in separate
possession of the defendants. Plaintiffs' application for
interim injunction in respect of Schedule 'B' property
seeking to restrain the defendants from transferring or G
letting out any portion thereof to any third party was
rejected; and pending consequential appeal, bearing
~ F.M.A. No. 988/2005, they were stated to have put a padlock
in flat no. 201. Defendant-respondent no. 1 filed an
1195 H
1196 SUPREME COURT REPORTS [2008] 3 S.C.R.

A application for a direction to the plaintiffs to remove the
padlock
I
and not to obstruct. his peaceful possession.
Meanwhile the High Court disposed of MFA No. 988 of 2005
directing the parties to maintain their respective
possession in the suit properties. It further observed that
B any application pending before the trial court with regard
to charge made by any party would be decided
irrespective of its order in the appeal. Consequently, the
trial court allowed the application of defendant-respondent
...
no. 1 and directed the plaintiffs to remove the padlock from
c flat no. 201. The High Court dismissed the revision filed
by the plaintiffs. Meanwhile a preliminary decree was
passed in the suit.
In the instant appeal filed by the plaintiffs, it was
contended for the appellants that the parties being co-
o owners and a final decree having not yet been passed,
the trial court could not have passed the mandatory
injunction and that too without arriving at a definite
conclusion that respondent no. 1 was in exclusive
, possession of flat no. 201.
E · Dismissing the appeal, the Court
HELD: 1.1 There cannot be any doubt about the
general proposition of law that possession of one co-
owner would be treated to be possession of alL This, .
F however, would not mean that where flats have been
allotted jointly to the parties, each one of them cannot be
in occupation of one of such flats as a co-owner
separately. If parties by mutual agreement entered into
possession of separate flats, no co-sharer should be
G permitted to act in breach thereof. [para 12 and 15) [1203-
A, B; 1205-F)
1.2 The plaintiffs - appellants themselves in no
uncertain terms admitted that by reason of mutual
adjustment the parties had been in separate possession
H of three flats, viz., flat Nos. 201, 202 and 301. Thus, the
TANUSREE BASU & ORS. v. ISHANI PRASAD BASU 1197
& ORS.

plaintiffs as co-owners could not otherwise have made A
'
< any attempt to dispossess the first respondent by putting
a padlock. The padlock, according to the respondent no.
1was put by the plaintiffs - appellants immediately after
the appeal preferred by them in the High Court was
dismissed. The padlock was rightly directed to be B
removed by an order dated 21.11.2006 passed by the Civil
~
Judge. [para 12-13] (1203-C, D, E]
;
2.1 It is now a well-settled principle of law that Order
39, Rule 1 of the Code of Civil Procedure, 1908 (Code) is
not the sole repository of the power of the court to grant c
injunction. Section 151 of the Code confers power upon
the court to grant injunction if the matter is not covered
by Rules 1 and 2 of Order 39 of the Code. [para 13]
(1203-E, F]
D
·--<; Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth
Hiralal AIR 1962 SC 527 and India Household and Healthcare
Ltd. v. LG Household and Healthcare Ltd. (2007) 5 SCC 510
- relied on.
Bhaguji Bayaji Pokale & Ors. v. Kantilal Baban Gunjawate E
~ Ors. 1998 (3) CCC 377 (Born.) - held in applicable.

Abu Shahid v. Abdul Hoque Dobhash and another AIR
1940 Cal 363; Hemanta Kumar Banerjee and others v. Salish
Chandra _Banerjee and others AIR 1941 Cal 635 -
•• distinguished. F

2.2 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
G
back to the same position. In the instant case, the
appellants admitted the factual scenario. No party, it is trite,
ordinarily should be allowed to take benefit of his own
wrong. The impugned judgments warrant no interference.
[para 16, 18-19] [1205-G, H; 1207-A, B]
H
1198 SUPREME COURT REPORTS [2008] 3 S.C.R.

A lsrail & Others v. Samset Rahman & Others (1914) 18 ,
Cal WN 176; AIR 1914 Cal 362; Spandan Diagnostic &
Research Centre Private Limited & Ors. v. Shri Ritendra Nath
Ghosh & Ors. 2000 (2) Cal LT 83; and Jahuri Sah and others
v. Dwarika Prasad Jhunjhunwala and others AIR 1967 SC 109
B - referred to.
Kishore Kumar Khaitan & Anr. v. Praveen Kumar Singh
(2006) 3 sec 312 - distinguished.

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1767
c of 2008.
From the Judgment and Order dated 17.05.2007 of the
High Court at Calcutta in C.O. No. 4501/2006.
Haradhan Banerjee, Ranjan Mukherjee and S.C. Ghosh
for the Appellants.
0 ,_.
Animesh Kanti Ghosal, Pranab Kumar Mullick for the
Respondents.
The Judgment of the Court was delivered by
E S.B. SINHA, J. 1. Leave granted.
2. The parties hereto are co-sharers. A suit was filed for
partition. Admittedly they had entered into a development
agreement. The properties which were in possession of the
owners were described in Schedule A of the plaint; whereas
F the properties which were subject matter of the development
agreement were described in Scheduled B thereof in the plaint
filed by the appellant in the Court of 81h Civil Judge (Sr. Division},
Alipore registered Title Suit No. 9 of 2004.
G In terms of the development agreement, three flats and
parking spaces for three cars had been allotted to the parties.
An application for grant of injunction in respect of Schedule A
property restraining the respondents from handing over the <
I
owners the allotted flats and from selling out any flats in the
H premises in question, was filed in the suit on or about 14.03.2004
TANUSREE BASU & ORS. v. !SHANI PRASAD BASU 1199
& ORS. [S.B. SINHA, J.]

wherein it was inter alia averred: A
'
«:
"That at present the plaintiffs and the defendant no. 1 to 6
are occupying 3 flats and 3 garages at premises no. 46A,
Puma Chandra Mitra Lake, Kolkata - 700033, which are
also undivided property."
B
It was furthermore averred:
>'.'

,, " ... That at present the plaintiffs have 93/240, undivided
share, the legal heirs of late Pinaki Prosad Basu (the
defendant No. 2 to 6) have 54/240, undivided s~are and
the defendant no. 6 have 93/240, undivided share of the c
schedule 'A' and 'B' properties. Although by amicable
agreements the parties are in possession of separate
flats of schedule 'B' hereunder, there has not been any
demarcated possession according to the respective share
of the parties." · D
. "'
3. However, yet again on 11.04.2005, the plaintiffs filed an
application for grant of injunction in respect of the schedule B
property seeking to restrain the respondents from transferring
or letting out any portion of the land to any third party.
E
An order of injunction was issued on the said application
dated 05.03.2004 but the same was refused in respect of the
application dated 11.04.2005 by an order dated 16.07.2005.
An appeal was preferred thereagainst which was marked as
F.M.A. No. 988 of 2005. F
4. The said appeal was dismissed by an order dated
10.08.2006 for default as process fee was not deposited. It was,
however, restored to· its original file. Immediately thereafter,
however, the appellants allegedly put a padlock in flat No. 201
which was in occupation of the first respondent. On or about G
14.08.2006, an application was filed by him before the 81h Civil
'
..
I
Judge (Senior Division) Alipore inter alia praying for:
"9. Your petitioner states that the plaintiff by show of muscle
and at the instance of musclemen in their side causing
H
1200 SUPREME COURT REPORTS [2008] 3 S.C.R.

A obstruction to use and enjoy the flat no. 201 of the 'B'
schedule property to your petitioner. Your petitioner is a .
bachelor and aged about 72 years and has become totally
perplexed as he has not been allowed to use and enjoy in
his own property. Your petitioner further states that after
B construction by the promoter three flats and three car
parking spaces allotted to the owners of three flats and as
has been observed by the Id. Court but the plaintiffs carrying ..
a fig to court's law and order causing obstruction,
inconvenience to your petitioner to use and enjoy the flat
c no. 201 of the 'B' schedule property by putting padlock
and keeping sundry household articles."
5. By an order dated 21.09.2006, a Division Bench of the
Calcutta High Court while disposing of FMA No. 988 of 2005
directed as under:
D
"In such view of the matter, we dispose of this appeal and ,_ ·
the application by holding that the parties to the suit shall ~
be entitled to maintain their respective possession in the
suit properties as on today without being entitled to make
any change in the nature and character of the same. It is,
E however, made clear that if there be any pending
application before the Trial Court by alleging that since
after making of the impugned order by the trial court, a
change has been made by some of the parties in respect
of the respective possession by force and/ or illegality,
F then the trial court will be entitled to deal with the said
application and to pass an appropriate orders irrespective
of the above order of disposal of this appeal."
6. By an order dated 21.11.2006, the learned Civil Judge
. G allowed the application dated 14.08.2006 holding:
"From the order of the Hon'ble High Court it is palpably
clear that full liberty has been given to the Trial Court to
dispose of the application of the defendant no. 1 filed u/ I'
s 151 CPC in accordance with the law. It is already stated
H in my foregoing discussion that the materials on record
TANUSREE BASU & ORS. v. ISHANI PRASAD BASU 1201
. & ORS. [S.B. SINHA, J.]

go to show that defendant no. 1 is in possession of flat No. A
201 of Schedule 'B' property while the plaintiffs are
contending that they are in possession of the said flat.
Considering the objection it is crystal clear that the defence
version that the plaintiffs illegally put padlock and kept
some sundry articles iri the said flat is proved. B
Under the facts and circumstances I think that the
plaintiffs should not be allowed to take the law in their own
hands, and they are not supposed to make any obstruction
to the defendant No. 1 in peaceful enjoyment of flat No.
201 of Schedule 'B' property. Therefore, the plaintiffs are C
hereby directed to remove the padlock and sundry articles
from flat no. 201 immediately and they are hereby
restrained from making any further obstruction to the
defendant no. 1 in peaceful enjoyment of the said flat. "
D
7. In the meanwhile, however, a preliminary decree was
passed in the suit. .
8. Appellants filed a revision application before the High
Court against the said order dated 21.11.2006 which by reason
of the impugned judgment has been dismissed holding: E
" ... It further appears from the said .reports that an interim
mandatory order of injunction can be passed only in
circumstances which are clear and· the prima facie
materials clearly justify a finding that the status quo has
been altered by one of the parties to the litigation and the F
interests of justice demanded that the status quo ante be
restored by way of an interim mandatory injunction ... "
It was furthermore observed:
" ... Thus it cannot be said that in the present case there is G
no prima facie finding by the learned Trial Court. Therefore,
in the present facts and circumstances of the case, the
'·\ said reported case cannot be of any help to the petitioners.
It is clear that the learned Trial Court after having recorded
its prima facie finding in respect of pos~ession by the H
1202 SUPREME COURT REPORTS [2008] 3 S.C.R.

A respective parties in respect of the 'B' schedule property, ,
the learned Trial Court disposed of the application for
injunction on contest."
9. The High Court noticed the discrepancies in the
averments made by the plaintiffs at different stages of the
8 proGeedings and upon consideration of the rival submissions
opined:
"It appears from the materials on record, as already
...
discussed above, and after having considered the
c respective submissions made by the learned counsels for
the respective parties, as already discussed above, that
the defendant no. 1 has been in possession of the said
flat no. 201 at all material times. Copies of certain
documents which have been annexed to the affidavit-in-
opposition, as discussed above, shows that the learned
D
Trial Court was not in error in making a prima facie finding ~.

with regard to the respective possession of the parties in
the 'B' schedule property. It further appears that the
plaintiffs/ petitioners at the initial stage did not dispute the
possession of the defendant no. 1 in respect of the said
E flat no. 201 but only at a later stage the plaintiffs/ petitioners
became interested in denying the possession of the
defendant no. 1 in respect of flat no. 201. The plaintiffs/
petitioners could not substantiate their claim in respect of
the said flat no. 201 by any supporting document."
F
10. Mr. Haradhan _Banerjee, learned counsel appearing
on behalf of the appellants, submitted that keeping in view the
nature of preliminary decree passed by the learned Civil Judge,
the Trial Judge as also the High Court committed a serious error
G in passing the impugned judgment.
It was urged that the parties being co-owners and a final
decree in the suit having not yet been passed, it is impermissible
in law to pass an order of mandatory injunction and that too /
without arriving at a definite conclusion that the first respondent
H was in exclusive possession of Flat No. 201.
TANUSREE BASU & ORS. v. ISHANI PRASAD BASU 1203
& ORS. [S.S. SINHA, J.]

11. Mr. Animesh Kanti Ghosal, learned counsel appearing A
.,. on behalf of the· first respondent, on the other hand, would
support the impugned judgment.
12. There cannot be any doubt or dispute as a general
proposition of law that possession of one co-owner would be
treated to be possession of all. This, however, in a case of this B

" nature would not mean that where three flats have been allotted
,., jointly to the parties, each one of them cannot be in occupation
of one co-owner separately.
We have noticed hereinbefore that the plaintiffs - c
appellants themselves in no uncertain terms admitted that by
reason of mutual adjustment the parties had been in separate
possession of three flats, viz., flat Nos. 201, 202 and 301. If they
were in possession of the separate flats, plaintiffs as co-owners
could not otherwise have made any attempt to dispossess the
'··~-
D
first respondent by putting a padlock. The padlock, according
. •. to the first respondent, as noticed hereinbefore, was put by the
plaintiffs - appellants immediately after the appeal preferred
by them in the High Court was dismissed.
13. The padlock was directed to be removed by the learned E
Civil Judge by an order dated 21.11.2006. We do not find any
illegality therein.
It is now a well-settled principle of law that Order 39, Rule
" 1 of the Code of Civil Procedure (Code) is not the sole repository
of the power of the court to grant injunction. F

Section 151 of the Code confers power upon the court to
grant injunction if the matter is not covered by Rules 1 and 2 of
Order 39 of the Code. [See Manohar Lal Chopra v. Rai Bahadur
Rao Raja Seth Hiralal AIR 1962 SC 527 and India Household
G
and Healthcare Ltd. v. LG Household and Healthcare Ltd.
(2007) 5 sec 5101
~-
I
14. Strong reliance has been placed by Mr. Banerjee on a
judgment of Bombay High Court in Bhaguji Bayaji Pokale &
Ors. v. Kantilal Baban Gunjawate & Ors. [1998 (3) CCC 377 H
1204 SUPREME COURT REPORTS (2008] 3 S.C.R.

A (Born.)] wherein it was held:
"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 had relied upon the
B Apex Court's judgment reported in Mohammad Baqar and
others v. Naim-un-Nisa Bibi and others. The Apex Court
has very categorically held in para No. 7 as under:
'The parties to the action are co-sharers, and as under
c 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."
D It was observed : '.
" ... 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."
E
We are concerned in this case with a question whether if
a co-owner was in specific possession of the joint property, he
could be dispossessed therefrom without the intervention of the
court. In this case, the first respondent is not claiming title of
F adverse possession. The said decision has, therefore, no
application to the fact of the present case.
15. Reliance has also been placed by Mr. Banerjee in Abu
Shahid v. Abdul Hoque Dobhash and another [AIR 1940 Cal
363], Hemanta Kumar Banerjee and others v. Satish Chandra
G Banerjee and others [AIR 1941 Cal 635] and Jahuri Sah and
others v. Dwarika Prasad Jhunjhunwala and others [AIR 1967
SC 109].
In Abu Shahid (supra), the question which arose for
H consideration was in regard to plea of ouster vis-a-vis rendition
TANUSREE BASU & ORS. v. !SHANI PRASAD BASU 1205

~
& ORS. [S.S. SINHA, J.]

of accounts. We are not concerned with such a question in this A
case .
• In Hemanta Kumar Banerjee and others (supra), the
question 'which arose for consideration was as to whether the

,,
......_
rule against partition amongst co-sharers is an elastic one.
Again, we are not concerned with such a question here .

In Jahuri Sah (supra), this Court opined:

"12. What we have to consider then is whether the contract
8

for payment of compensation is not enforceable. It is no
doubt true that under the law every co-owner of undivided c
property is entitled to enjoy the whole of the property and
is not liable to pay compensation to the other co-owners
who have not chosen to enjoy the property. It is also true
that liability to pay compensation arises against a co-
... owner who deliberately excludes the other co-owners from D
the enjoyment of the property. It does not, however, follow
that the liability to pay compensation arises only in such a
case and no other. Co-owners are legally competent to
come to any kind of arrangement for the enjoyment of their
undivided property and are free to lay down any terms E
concerning the enjoyment of the property. There is no
principle of law which would exclude them from providing
in the agreement that those of them as are in actual
• occupation and enjoyment of the property shall pay to the
other co-owners compensation ... " F
These observations do not assist the case of the
appellants. If parties by mutual agreement entered into
possession of separate flats, no co-sharer should be permitted
to act in breach thereof.
G
16. 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 H
1206 SUPREME COURT REPORTS [2008) 3 S.C.R.

A order of injunction or otherwise, the court indisputably will have
jurisdiction to restore the parties back to the same position.
In lsrail & Others v. Samset Rahman & Others [(1914) 18
Cal WN 176 ; AIR 1914 Cal 362), Mookerjee, J. held that a co-
owner being in exclusive possession of a joint property would
B be entitled to injunction. If a person is entitled to a prohibitory
injunction, a' fortiori he shall also be entitled to a mandatory
injunction. [See also Spandan Diagnostic & Research Centre
Private Limited & Ors. v. Shri Ritendra Nath Ghosh & Ors.
2000 (2) Cal LT 83] ·
c
17. We are not oblivious of a judgment of this Court in
Kishore Kumar Khaitan & Anr. v. Praveen Kumar Singh [(2006)
3 sec 312], wherein one of us (Sinha, J.) was a member, where
it was held:
D "14. Thus, prima facie, we find that the tenancy claimed by •·
the plaintiff remains to be proved in the suit. For the present, •
we should say that prima facie, the plaintiff has not been
able to establish the foundation for the possession claimed
by him. It is significant to note that not even another tenant
E of the building among the various tenants in the building,
was examined to establish that the plaintiff while in
possession, had been dispossessed on 20-6-1998 as
claimed by him. Any way, the Additional District Judge
has not referred to any such evidence except referring to
the affidavit of Shivanand Mishra, who even according to
•
F
the plaintiff was no more in occupation. Thus, the
disturbance of the status quo by the defendants has not
been established. Thus, prima facie it is clear that the
plaintiff has not laid the foundation for the grant of an interim
order of mandatory injunction in his favour. The order so
G
passed by the Additional District Judge, and confirmed
by the High Court, therefore, calls for interference in this
appeal." ~
-
18. The fact situation obtaining herein, however, is
H absolutely different. In this case, such a foundational fact has
TANUSREE BASU & ORS. v. ISHANI PRASAD BASU 1207
& ORS. [S.B. SINHA, J.]

not only been raised by the respondents, the appellants admitted A
the factual scenario in that behalf. No party, it is trite, ordinarily
should be allowed to take benefit of his own wrong.
19. For the reasons aforementioned and particularly having
regard to the fact situation obtaining herein, we are of the opinion
that the impugned judgments warrant no interference. B
Accordingly, the appeal is dismissed with costs. Counsel's fee
assessed at Rs. 10,000/-.
R.P. Appeal dismissed.

-·

I