2/2/2020 MODELS OF PLAINT IN PARTITION SUIT - sarin advocate

IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 324 OF 2015, (ARISING OUT OF SLP(C) No.14024/2013)

Shasidhar & Others Vs Smt. Ashwini Uma Mathad & Anr.

Abhay Manohar Sapre, J.

Dated;January 13, 2015.

It was held: well settled principle of law that in a suit filed by a co-sharer, coparcener, co-owner or joint
owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary
for the Court to examine, in the first instance, the nature and character of the properties in suit such as
who was the original owner of the suit properties, how and by which source he/she acquired such
properties, whether it was his/her self-acquired property or ancestral property, or joint property
or coparcenary property in his/her hand and, if so, who are/were the coparceners or joint owners with
him/her as the case may be. his/her

Secondly, how the devolution of Interest consequent upon in the property his/her death took on place
surviving members of the family and in what proportion, whether he/she died intestate or left behind
any testamentary succession in favour of any family member or outsider to inherit his/her share
in properties and if so, its effect
.
Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what
manner?

Lastly, whether all properties are included in the suit and all co-sharers, coparceners, co-owners or joint-
owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal
of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of
family members, evidence adduced and the principles of law applicable to the case. (see “Hindu Law” by
Mulla 17th Edition, Chapter XVI Partition and Reunion Mitakshara Law pages 493-547). 25.

IMPORTANT:

whether a co-owner of the property is entitled to seek an injunction against other co-owner who has been
in exclusive possession of the entire or part of the property restraining him from making any construction
in that part of the property.

3. In the case of common property the joint tenants or tenants-in-common, all of them are entitled to the
said property and are entitled to enjoy the same. If one of them alone holds or occupies the entire property
or part of it, his possession cannot be said unlawful. His physical possession is that of an owner of this
own interest and also that of an agent as to the other co-owners. Therefore, the possession of one of the
co-sharers is the possession of all of them. At the same time, it cannot be said that the person who has
been in pessession of the property is holding the property not only for himself but also in favour of other
co-sharers. A co-sharer who is in possession of the property is also entitled to the enjoyment of the
same. The possession of one of them is possession of all in the eye of law unless the person who has been
in exclusive possession asserts his title in himself to the exclusion of the other co-sharer which may
amount to ouster. We need not dwell upon this aspect of the matter in this revision petition. Suffice to say,
it is for the co-sharer who claims or asserts ouster to prove the same. The point with which we are
concerned is: Should a co-sharer abuse the joint property, or otherwise infringe the rights of his co-
sharer, what is the remedy available to the other co-sharer? The remedies open to the other co-
sharers are:-

(i) partition

(ii) declaration of right, damages and account of profits:

https://sites.google.com/site/sarinadvocate/partition-suit/models-of-plaints-in-partition-suit 1/4
2/2/2020 MODELS OF PLAINT IN PARTITION SUIT - sarin advocate

(iii) decree for joint possession: and

(iv) injunction.

There cannot be any problem with the first three remedies open to the co-sharers. The difficulty
arises only in the case of remedy of injunction which can be availed of by one co-sharer and under
what circumstances the co-sharer who is not in possession of the property can avail the remedy; of
injunction.

4. The English Courts have considered it to be against the policy of law to entertain claims of injunctions
between joint-tenants or tenants-in-common, a remedy being open to the parties in the form of partition.
The Court interposes to restrain the party in possession in the case of coparceners, joint tenants and
tenants-in-common, unless the act of co-sharer in possession amounts to destruction, waste or spoliation
or unless the wrong doer is insolvent or incapable of paying to the other the excess of the value beyond
his own share. If one tenant-in-common is doing merely what any other co-owner might do, the other
cannot have an injunction merely on the ground that he does not choose to do so, since each tenant-in-
common has a right to enjoy as he pleases. Therefore, a joint owner cannot prevent by injunction the
carrying out of the necessary work by another co-owner in property held in common. But if the act
amounts to destruction, of the thing itself is (or amounts to) an ouster. When there are acts of positive and
actual destruction, an injunction has to be granted since such acts are not done in the legitimate exercise of
the enjoyment arising out of the nature of the party's title to that which belongs to him and the other party.

Having regard to the rights of the co-owners, qua the common property, the question for consideration is
whether one co-owner restraining another from enjoying the property which has been in his possession
can be interfered with by granting an injunction A Full Bench of the Allahabad High Court in Chhedi Lal
and Anr. v. Chhotey Lal, AIR 1951 Allahabad 199 after considering the various decisions held as
follow:-

"As a result of the foregoing decision, it appears to us that the question of the right of co-sharers in
respect of joint land should be kept separate and distinct from the question as to what relief should be
granted to a co-sharer, whose right in respect of joint land has been invaded by the other co-
sharers either by exclusively appropriating and cultivating land or by raising constructions thereon. The
conflict in some of the decisions has apparently risen from the confusion of the two distinct matters.
While, therefore, a co-sharer is entitled to object to another co-sharerexclusively appropriating land to
himself to the detriment of other co-sharers, the question as to what relief should be granted to the
plaintiff in the event of the invasion of his rights will depend upon the circumstances of each case. The
right to the relief for demolition and injunction will be granted or withheld by the Court according as the
circumstances established in the case justify. The Court may feel persuaded to grant both the reliefs if the
evidence establishes that the plaintiff cannot be adequately compensated-at the time of the partition and
that greater injury will result to him by the refusal of the relief than by granting it. On the contrary if
material and substantial injury will be caused to the defendant by the granting of the relief, the Court will
no doubt be exercising proper discretion in withholding such relief. As has been pointed out in some of
the cases, each case will be decided upon its own peculiar facts and it will be left to the Court to exercise
its discretion upon proof of circumstances showing on which side the balance of convenience lies. That
the Court in the exercise of discretion will be guided by considerations of justice, equity and good
conscience cannot be overlooked and it is not possible for the Court to lay down an inflexible rule as to
the circumstances in which the relief for demolition and injunction should be granted or refused."

8. In Bhartu v. Ram Sarup (Supra) it has been held that a co-sharer who is in possession exclusively of
some portion of the joint holding, he is in possession thereof as a co-sharer and is entitled to continue to
be in possession till the joint holding is partitioned. It has also been held that when a co-sharer sells his
share in the joint holding or any portion thereof and puts the vendee into possession of the land in his
possession, what he transfers is his right as co-sharer in the said land and the right to remain in its
exclusive possession till the joint holding is partitioned amongst all the co-sharers. The Full Bench re
ferred to a Division Bench decision of Lahore High Court in Sukhdev v. Parsi and Ors., A.I.R. 1940 Lah.
473 wherein it was held that a co-sharer who is in exclusive possession of any portion of a joint Khata
can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of
partition and that other co-sharer's rights will be sufficiently safeguarded if they are granted a decree by

https://sites.google.com/site/sarinadvocate/partition-suit/models-of-plaints-in-partition-suit 2/4
2/2/2020 MODELS OF PLAINT IN PARTITION SUIT - sarin advocate

giving them a declaration that the possession of the transferees in the land in dispute will be that of co-
sharerssubject to adjustment at the time of partition and that a declaratory decree in nothing but a judicial
recognition of the existing rights and such a decree does not tend to create any rights.

Punjab-Haryana High Court, Bachan Singh vs Swaran Singh on 6 March, 2000, Equivalent
citations: (2000) 126 PLR 416

Author: T ChalapathI, Bench: G Singhvi, T Chalapathi

JUDGMENT T.H.B. Chalapathi, J.

MODELS OF PLAINT NO.1.

SUIT FOR PARTITION OF JOINT HINDU FAMILY PROPERTY:

In the court of civil judge (senior division) Dehradun

Original Suit No. …………………of 2014

1. Sri Ram Lal s/o Late Sri Chunee Lal r/o ……………………………………………Dehradun
Plaintiff
Versus
1. Sri ……………………………………………… .s/o Chunee Lal
r/o………………………………………
2. Sri …………………………………………………s/o Chunee Lal
r/o……………………………………...
3. Sri …………………………………………………s/o Chunee Lal
r/o……………………………………..
4.Sri ………………………………………………….s/o Late Sham Lal r/o
……………………………….....
Defendant
5. Sri Rati Ram s/o Sri Sati Ram r/o 171 Shakti Vihar Dehradun.
Performa defendant.
Sir,
The above named plaintiff states as follows:

1. That the plaintiff and the defendant No.1 to 4 are a member of a joint Hindu family. Defendant No.1 to
3 and plaintiff are real brothers whereas defendant No.4 is the son of late Sham Lal who is also a real
brother of plaintiff and defendant No. 1 to 3. Unfortunately he has died on…………………leaving behind
his only son (defendant No.4).
2. That the father of the plaintiff and defendant No.1 to 4 late Sri Chunee Lal is the Karta of joint Hindu
family purchased the property in suit, from Sri Nand Lal vide sale deed dated ………….which is duly
registered in the office of sub registrar Dehradun in bahi No. …..volume ………page No. ………
registered on ………….full details of which are given in the end of this plaint in schedule of property. Late
Chunee Lal died on …………………….intestate.
3. That the plaintiff and defendant No.1 to 4 are in joint possession of the property in suit. Plaintiff and
defendant No.1 to 4 have equal undivided share in the whole of the property. In other words each have
1/5th share of in the whole of the property dispute.
4. That the defendant No. 4 has sold his undivided 1/5th share of the suit property to Sri Rati Ram, who is
made party in the suit as a Performa defendant and no relief claimed against him.
5. That the Performa defendant No.5 is trying to get possession in the joint property by hook and crook
and threatening for dire consequences.
6. For the above reasons it would be to the plaintiff’s benefit to have his share separated by partition.
https://sites.google.com/site/sarinadvocate/partition-suit/models-of-plaints-in-partition-suit 3/4
2/2/2020 MODELS OF PLAINT IN PARTITION SUIT - sarin advocate

7. That the plaintiff claims partition of the said property and separate possession of his 1/5th share.
8. That the cause of action for the said suit arose on……………when……………………….
9. That the suit property is situated in Dehradun and all the parties permanently residing in Dehradun,
within the jurisdiction of this honorable court. Hence this court has jurisdiction to hear and adjudicate this
suit.
10. For the purpose of court fees and jurisdiction, suit valued at rupees ……………… which is a market
value of plaintiff’s 1/5th share of the disputed property and appropriate court fees thereupon being paid.

The plaintiff claims:

(1)……………………………………………………………………………………………………………
(2)……………………………………………………………………………………………………………
(3)……………………………………………………………………………………………………………

Schedule of property:
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………
…………………………………………………………………………………………………………………

Signature
Verification:

I, the above named plaintiff, declare that the contents of paragraphs 1 to 7 of the plaint are true within my
personal knowledge, and that the contents of paragraphs 8 to 10 of the plaint are based on legal advice
received by me and believed to be correct. Verified on………… at Dehradun.

Date…..........

Place, Dehradun.
Signature

https://sites.google.com/site/sarinadvocate/partition-suit/models-of-plaints-in-partition-suit 4/4