Full Text
HIGH COURT OF DELHI
Date of Decision: 21.08.2025
VINAY KUMAR GUPTA & ANR. .....Petitioners
Through:
Mr. Manav Bhalla and Mr. Abhimanyu Tewari, Advocates
Through: Mr. R.K Dhawan, Standing Counsel for DDA
Deo, Advocates for R-3/DDA
JUDGMENT
1. The present Petition has been filed by the Petitioners under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] impugning the Order dated 24.03.2022 passed by the Additional District Judge-03, South East, Saket Courts, New Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Application filed by the Petitioners/Defendants under Order VII Rule 11 of the CPC [hereinafter referred to as “Application”] has been dismissed.
2. The challenge in the present Petition by the Petitioner is limited to the ground that the suit is barred by law under the provisions of Order VII Rule 11(d) of the CPC. It is the case of the Petitioners that the Plaint is barred by the proviso to Section 34 of the Specific Relief Act, 1963 [hereinafter referred to as “SR Act”] since, although a declaration has been sought by the Respondent Nos. 1 and 2/Plaintiffs, the relief of possession has not been sought.
3. Briefly, the facts are that the Respondent Nos. 1 and 2/Plaintiffs filed a Suit for declaration praying for a decree that a conveyance deed dated 22.06.2012 and mutation dated 12.01.2017 be declared as null and void and for the consequential relief of rendition of accounts and permanent injunction. The Petitioners/Defendants before the learned Trial Court filed an Application under Order VII Rule 11 of the CPC. The plea in the Application was that the suit has not been valued properly for the purposes of Court fee and jurisdiction and that the Plaint is barred by the by the proviso to Section 34 of the SR Act.
4. The learned Trial Court while relying on the judgment of the Supreme Court of India in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh & Ors.[1] has held that the Plaintiff is not required to value the suit as per the market value but it is to be valued on the basis of the valuation of documents sought to be declared null and void. 4.[1] The learned Trial Court also held that given that the property is joint property, the Plaintiff is not required to seek any relief of the possession of the suit property as well. Thus, the Application filed by Petitioners/Defendant was dismissed with costs of Rs. 3000/- for delaying the Plaintiff’s case.
5. As stated above, the learned Counsel appearing on behalf of the Petitioners has restricted his challenge to the ground that although a declaration has been sought by the Respondent Nos. 1 and 2/Plaintiffs, the relief of possession has not been sought.
6. Learned Counsel appearing on behalf of the Petitioners relies upon the proviso to Section 34 of the SR Act to submit that in terms of the proviso, since the relief of possession has not been sought by the Petitioners, the Application ought to have been allowed. In addition, the learned Counsel appearing on behalf of the Petitioners relies upon the judgment of the Supreme Court in Venkataraja & Ors. v. Vidyane Doureradjaperumal (Decd.) Thr. LRs & Ors.[2] and of a Coordinate Bench of this Court in Subhash Chandra Jarodia v. Vijayinder Kumar & Ors.3.
7. Learned Counsel appearing on behalf of the Respondent Nos. 1 and 2/ Plaintiffs, on the other hand, submits that the Impugned Order does not suffer from any infirmity so as to be challenged under the provisions of Section 115 of the CPC. He further submits that the challenge in respect to the proviso to Section 34 of the SR Act is not maintainable in a case where the property is joint. Reliance in this behalf is placed on the judgment of a Coordinate Bench of this Court dated 15.12.2009 in Vijay Manchanda and Ors. v. Ashok Manchanda[4], which has been upheld by the Supreme Court[5] wherein it has been held that since the parties were in joint possession and the claim of the Plaintiff is not of exclusive possession, consequential relief of possession is not requisite.
8. The proviso to Section 34 of the SR Act reads as follows:
2009 SCC OnLine Del 4076 SLP (C) 8872/2010 dismissed on 01.04.2010 omits to do so.” [Emphasis Supplied]
9. The suit that has been filed before the learned Trial Court has been filed for relief of declaration, permanent injunction, and rendition of accounts. It is the case of the Plaintiffs that the plot constituting part of the suit property was purchased by the Plaintiff Nos. 1 and 2 and Defendant Nos. 1 and 2 out of their personal funds and thereafter it was constructed by the Petitioner No.1/Defendant No. 1. It is apposite to extract paragraphs 22 and 25 of the Plaint which sets this out below: “22. The Plaintiffs in good faith and having trust on the Defendant Nos. 1 & 2 permitted the use of their half undivided share in the suit Property by the Defendants. However, the Defendants taking advantage of the situation that the entire suit property is in their possession illegally by forging and fabricating documents got the same mutated and conveyed in their own names without approval or consent of the Plaintiffs. Further, the Defendants have failed to render the accounts to the quantum of the lease rentals received by them wherein the Plaintiffs are entitled to one-half share. xxx xxx xxx
25. The Plaintiffs as on date are consciously not terminating the permissive use of the Defendants Nos. 1 & 2 of the half undivided share of the suit property owned by the Plaintiffs with the confidence that the Defendants shall render the accounts as to the quantum of lease rentals received by them from the suit property and/ or portion thereof. The Plaintiffs reserve their right to terminate such permissive use by the Defendant Nos. 1 & 2 of the half undivided share of the suit property owned by the Plaintiffs and seek the relief of partition by metes and bounds and possession of the heir undivided share of the suit property owned by the Plaintiffs.” 9.[1] As stated above, the learned Trial Court has examined the objections as raised by the Petitioners in the Plaint and relying on the judgment in Suhrid Singh case, has held the objections not to be maintainable. 9.[2] The Supreme Court in Suhrid Singh case has held that if a person, who is a non-executant, but is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, then he has to pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Second Schedule of the Court Fees Act, 1870 [hereinafter referred to as “Court Fees Act”]. The relevant portion of the Suhrid Singh case is extracted below: “7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act.”
10. The brief relevant facts in the present case as per the Plaint are that the Respondents/Plaintiffs has filed a suit seeking a decree for declaration that the conveyance deed dated 22.06.2012 be declared as null and void. The conveyance is executed by the Petitioner Nos.[1] and 2 on the part one and by one M/s Krishna Pipes Store on the other part. The Respondents/Plaintiffs are not executants of the sale deed. It is stated in the Plaint that the suit property is the joint property of the Petitioners/Defendants and Respondents/Plaintiffs. The Plaintiff Nos.[1] and 2/Ajay Kumar and Nina Gupta and the Defendants Nos.[1] and 2/Vinay Kumar Gupta and Anjali Gupta had purchased the suit property out of their personal funds. Since the Respondents/Plaintiffs are nonexecutants and in possession of the sale deed, they are liable to pay fixed Court fee.
11. The Supreme Court in the Neelavathi & Ors. v. N. Natrajan & Ors.[6] case has also held that before a plaintiff could be called upon to pay court fee under Section 37(1) of the Court Fees on the ground that the plaintiff has been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that the plaintiff has been “excluded” from joint possession to which the plaintiff is entitled in law. However, as long as a party has a share in the property, the law presumes his possession. The relevant extract Neelavathi case is set out below: “8… Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.” 11.[1] This Court in C.R.P. 93/2025 dated 14.05.2025 captioned as Sakshi Dhall vs. Smt. Indira Dhall & Ors[7]. has while relying on the judgement of Supreme Court in Neelavathi case and the judgement of the Coordinate Bench in Tara Chand Gaur v. Satish Chand Sharma & Anr.[8] held that where the AIR 1980 SC 691 2025:DHC:4977 2018 SCC OnLine Del 12923 suit property is a joint property and ‘ouster’ or exclusion of possession from the suit property has not been specifically pleaded by the Plaintiff in the plaint the Court shall at the preliminary stage presume the Plaintiff to be in possession, unless it is proved to the contrary, and that in such a case the Plaintiff would only be liable to pay fixed court fee as per the Article 17(vi), Schedule II of the Court Fees Act and not ad valorem Court fees on the market value of the suit property. The relevant extract of the Sakshi Dhall case is set out as below: “13.[1] The Supreme Court in the Neelavathi case has held that it is the general principle of law that in the case of co-owners of an immovable property, the possession of one is synonymous with the possession of all, unless ouster or exclusion is proved. To be in joint possession of the immovable property, in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. So, as long as the right to a share and the nature of the property as joint is not disputed, the law presumes that the co-owner is in joint possession unless the co-owner is excluded from such possession. The relevant extract of the Neelavathi case is set out below: “8… It will be seen that the court fee is payable under Section 37(1) if the plaintiff is “excluded” from possession of the property. The plaintiffs who are sisters of the defendants, claimed to be members of the joint family, and prayed for partition alleging that they are in joint possession. Under the proviso to Section 6 of the Hindu Succession Act, 1956 (Act 30 of 1956) the plaintiffs being the daughters of the male Hindu who died after the commencement of the Act, having at the time of the death an interest in the Mitakshara coparcenary property, acquired an interest by devolution under the Act. It is not in dispute that the plaintiffs are entitled to a share. The property to which the plaintiffs are entitled is undivided “joint family property” though not in the strict sense of the term. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession…” 15.[1] Thus, the Respondent No.1/Plaintiff has averred that she is a coowner of the suit property and has relied on the SC judgment as well. As per the SC judgment, the suit property is a joint property and ‘ouster’ or exclusion of possession from the suit property has not been specifically pleaded by Respondent No.1/Plaintiff in the plaint. Thus, and at the preliminary stage at which the proceedings before the learned Trial Court are at, the law would presume the Respondent No.1/Plaintiff to be in possession unless it is proved to the contrary. 15.[2] Since Respondent No.1/Plaintiff would be considered to be in possession of the suit property, Respondent No.1/Plaintiff would only be liable to pay fixed court fee as per the Article 17(vi), Schedule II of the Court Fees Act and not ad valorem Court fees on the market value of the suit property. 15.[4] Thus, the contention of the Petitioner that ad volorem court fee on the market value of the suit property has to be paid in view of the plea of ouster is without any merit.” 11.[2] A Coordinate Bench of this Court in the Tara Chand Gaur case has held that a co-owner seeking partition of an immovable property is liable to pay only fixed court-fee under Schedule II, Article 17(vi) of the Court Fees Act, as such co-owner is presumed to be in constructive possession unless ouster is specifically pleaded and proved by the other co-owners. Determination of exclusive possession or ouster is a question of fact and must be established through evidence. The relevant extract of Tara Chand Gaur case is reproduced below:
possession of the co-owned property. If a defendant is a co-owner who is in actual physical possession of the complete property, even then, the possession of one or more such co-owners who are defendants in possession, the possession is for and on behalf of all co-owners including the plaintiff(s), and whether there exists exclusive possession of the respondents/defendants and the same acts as an ouster of the plaintiff(s) is a question of fact, and only when this question of fact is proved by the respondents/defendants by leading evidence, it can be held that the appellant/plaintiff was not in possession, physical or constructive, of the suit property, so that court fee is payable for the 1/3rd share as claimed by the appellant/plaintiff. In fact, this issue of court-fee is very much interlinked with the issue of limitation because the appellant/plaintiff is not in possession, and both are factual issues which will have to be proved by the respondents/defendants that the appellant/plaintiff was not in physical possession of the suit property and ouster has been proved against the appellant/plaintiff by respondents/defendants after leading evidence."
12. The Petitioners/Defendants have stated that the suit is not maintainable as the consequential relief of possession has not been sought by the Respondents/Plaintiffs. The Petitioners/Defendants has contended that the omission of consequential relief of possession when the plaintiff is not in possession would make a suit liable to be not maintainable. It has further been contended that in terms of Section 7(iv)(c) of the Court Fees Act, the valuation of a property shall be calculated in terms of the market value of the suit property. 12.[1] Section 7(iv)(c) of the Court Fees Act reads as follows:
13. It is the case of the Respondent Nos. 1 and 2/Plaintiffs that he is in joint ownership with the Petitioners/Defendants, thus, the question of seeking consequential relief of possession is not requisite. The learned Trial Court has after examining the contentions raised by the Petitioners has deemed it apposite to dismiss the Application filed by the Petitioners along with costs in view of the settled law in this behalf. The examination by the Court does not show anything different. 13.[1] The Petitioner has contended that since the Respondent Nos. 1 and 2/Plaintiffs have claimed to be ousted from the property, ad-valorem court fee based on the market value of the suit property is required to be paid under Section 7(iv)(c) of the Court Fee Act. It is settled law that for the purposes of an Application under Order VII Rule 11 of the CPC, only the averments of the Plaint are required to be examined and that too on a demurer. The facts that have been set out in the Plaint are that the Plaintiffs and the Defendants are the co-owners of the suit property and being in joint possession thereof. The Plaint further sets out that the Plaintiff No. 1 [Respondent No.1] and the Defendant No. 3 [Petitioner No. 1] are brothers and that the Plaintiff Nos. 1 and 2 and the Defendant Nos. 1 and 2 purchased the Suit property and that they are co-owners of the suit property to the extent of one fourth undivided share each therein. 13.[2] It is further contended that the construction was raised on the suit property around the year 2000 and that a showroom was open on the suit property for the business of a family-owned Company business Delta Factors India Private Limited. The Plaint further sets out that the Petitioners/Defendants have been portraying themselves as to be the sole owners of the property and that the suit property has been converted from a lease hold to a free hold by the Petitioners/Defendants to the exclusion of the Plaintiffs. The Plaintiffs have also stated that they remain in possession of the original lease deed qua the Suit property which continues to be in their possession till date. 13.[3] In essence it is the case of the Plaintiff that the Petitioners/Defendant Nos. 1 and 2 were permitted to use half undivided share in the suit property, however, by forging and fabricating documents, the property has been mutated and conveyed without approval or consent of the Respondent/Plaintiff. It is thus the case of the Plaintiffs that the Plaintiffs are in possession of the half undivided share through the Defendants. It is apposite to set out the relevant extract of the Plaint below:
Plaintiff Nos. 1 & 2 and the Defendant Nos. 1 & 2. Hence, the Plaintiff Nos. 1 & 2 and the Defendant Nos. 1 & 2 became the owner of the plot constituting part of the suit property to the extent of 1/4th undivided share each therein. Inter alia, the following documents were executed by the allottee in order to effectuate the transfer of the p1ot constituting part of the suit property in name of abovementioned personsi. The allottee, through proprietor, executed 4 Agreements to Sell in respect of the 1/4th undivided share each in the plot constituting part of the suit property in favour of the Plaintiff Nos, 1 & 2 and the Defendant Nos. 1 & 2. ii. The allotee, through proprietor, executed 4 Wills, all dated 22.04.1994, in respect of the 1/4th undivided share each in the plot constituting part of the suit property in favour of the Plaintiff Nos. 1 & 2 and the Defendant Nos. 1 & 2. All the said Wills were duly registered. iii. The allottee, through proprietor, executed 4 Receipts and Possession Letters in respect of the 14th undivided share each in the plot constituting part of the suit property in favour of the Plaintiff Nos. 1 & 2 and the Defendant Nos. 1 & 2.
12. The plot constituting part of the suit property was purchased by the Plaintiff Nos. 1 & 2 and Defendant Nos. 1 & 2 out of their own personal funds. No construction was raised over the plot constituting part of the suit property after the purchase thereof. Around the year 2000, the Defendant NO. 1 proposed to the Plaintiffs to raise construction over the plot constituting part of the suit property as he wanted to open a showroom under the name and style of ‘Bathline’ for his sons to help them carry on the retail business of the sanitary goods which were being manufactured by various family owned companies like Delta Factors India Pvt. Ltd., etc. The Plaintiffs agreed to the proposal of the Defendant No. 1 and construction was raised upon the plot constituting part of the suit property in the manner as it exists as on date and described hereinabove. Thereafter, the Defendant No. 3, being the karta of the Defendant No. 1, opened a showroom in the suit property. The Plaintiff No. 1 being the brother of the Defendant No. 3 permitted the family of the Defendant No. 3 to use the suit property for their business as the same also helped enhancement of the sales of the family owned company, M/s Delta Factors India Pvt. Ltd. Hence, the Defendants were permissive users in the suit property in respect of the half undivided share of the Plaintiffs in the suit property. In the meanwhile, due to slow down in the real estate market, the business of the showroom was affected and the Defendants approached the Plaintiffs to seek their permission to lease out the portions of the suit property in order to fetch additional income from the suit property. The Plaintiffs agreed to the same with the understanding that. the Defendant Nos, 1 and 2 shall divide the lease rentals being fetched from the suit property with the Plaintiffs in equal, proportions as the Plaintiffs are the owners of the half undivided share in the suit property. However, the Defendants have failed to render the accounts in respect of the suit property; failed to disclose the quantum of the lease rentals fetched from the suit property; and remit such share of the lease rentals to the Plaintiffs to which they are entitled to. The Defendants till date remain permissive users in the suit propertv in respect of the half undivided share of the Plaintiffs in the suit property. The Defendants are date enjoying lease rentals from the Defendant Nos. 6 and 7 who are running their businesses from the portions of the suit property and the remaining portion of the suit property is being used by the family members of the Defendants to run their business m name of M/s Bathline India Private Limited.
14 The Plaintiff were shocked to learn the above said assertion of the Defendant No. 3 as conveyed by the said Mr. Khan. Upon making enquiries. the Plaintiffs learnt that the Defendant Nos. 2 and 3 are portraying themselves to be alleged owners of the suit.
15. The Plaintiffs, through another person, filed an RTI Application with the Defendant No. 4 in order to find out the status of the suit property. By way of response dated 02.06.2017 to the said RTI Application, it was learnt that the Defendant Nos. 2 and 3 had got the entire suit property converted from leasehold to freehold in their joint names to the extent of 1/2 undivided share each therein to the exclusion of the Plaintiffs vide Conveyance Deed dated 22.06.2012. The Plaintiffs were also provided with the certified copy of the Conveyance Deed dated 22.06.2012.
18. From the foregoing, it is evident that the Defendant Nos. 1 and 2 have forged the Agreements to Sell dated 22.04.1994 as submitted by the Defendant Nos. 1 and 2 with Defendant No. 5 as well as forged the General Power of Attorney dated 25.05.1996 as submitted by the Defendant Nos. 2 and 3 with the Defendant No. 4. The alleged documents used for conversion to freehold with the Defendant No. 4 and mutation with the Defendant No, 5 are contradictory and diametrically opposite.
19. Further, it is incomprehensible that the process of mutation and conversion from leasehold to freehold can be commenced and completed without the production and submission of the original Lease Deed dated 09.03.1994 pertaining to the suit property, which is till date in possession of the Plaintiffs.
22. The Plaintiffs in good faith and having trust on the Defendant Nos. 1 & 2 permitted the use of their half undivided share in the suit property by the Defendants. However, the Defendants taking advantage of the situation that the entire suit property is in their possession illegally by forging and fabricating documents got the same mutated and conveyed in their own names without approval or consent of the Plaintiffs. Further, the Defendants have failed to render the accounts as to the quantum of the lease rentals received by them wherein the Plaintiffs are entitled to one-half share.
25. The Plaintiffs as on date are consciously not terminating the permissive use of the Defendants Nos. 1 & 2 of the half undivided share of the suit property owned by the Plaintiffs with the confidence that the Defendants shall render the accounts as to the quantum of lease rentals received by them from the suit property and/ or portion thereof. The Plaintiffs reserve their right to terminate such permissive use by the Defendant Nos. 1 & 2 of the half undivided share of the suit property owned by the Plaintiffs and seek the relief of partition by metes and bounds and possession of the half undivided share of the suit property owned by the Plaintiffs.”
14. The Respondent/Plaintiffs have stated that they continue to be in possession through permissive use by the Petitioner/Defendants which is continuing. It is settled law that in the case of co-ownership of a property, each co-owner is deemed to be in possession of the property. 14.[1] The Supreme Court in the case of Nagabhushanammal (Decd.) by LRs v. C. Chandikeswaralingam[9] held that in a joint property, possession of one co-owner is treated as possession on behalf of all co-owners. A claim of ouster or adverse possession against a co-owner cannot be presumed merely from sole possession; it must be proved by clear denial of title, long and uninterrupted exclusive possession, and open assertion of hostile ownership. Thus, without these elements, the law presumes joint possession and no ouster is made out. It is apposite to set out the relevant extract of Nagabhushanammal case below:
to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
23. A Three-Judge Bench of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy [P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314], while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows: (AIR pp. 317-18, para 4)
24. This Court in Vidya Devi v. Prem Prakash [Vidya Devi v. Prem Prakash, (1995) 4 SCC 496] held that: (SCC p. 505, para 28)
(i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”
15. A Coordinate Bench of this Court in Vijay Manchanda case has held that where the plaintiff seeks the relief of declaration simpliciter without the relief of possession on the ground of his being a co-owner of the suit property, the plaint could not be rejected on the ground that relief of possession is not claimed. The Coordinate Bench further reiterated that one co-owner cannot claim the relief of possession against other co-owner(s). The relevant extract of the Vijay Manchanda case is below:
2000 thereby purporting to make his wife the defendant No.2 who under the agreement to sell was entitled to only half share in the property, the absolute owner of the property; that the plaintiff learnt of the execution of the said sale deeds only on 29th October, 2007. The plaintiff thus instituted the suit for cancellation of the sale deed dated 10th August, 2000 with respect to the one half share in the property.
11. The main plea which arises for consideration is whether it can be said that the suit for the relief of cancellation of sale deed alone without claiming relief of possession is not maintainable. First, on the factual aspects. The counsel for the plaintiff has contended that for the purposes of adjudication of application under Order 7 Rule 11 of the CPC only the plaint is to be seen and the averments of the defendants in the written statement or otherwise cannot form the basis of rejection of the plain. He has in this regard relied upon Mayar (H.K.) Ltd. Vs. Owners and Parties, Vessel M.V. Fortune Express AIR 2006 SC 1828. He has drawn attention to para 6 of the plaint which is as under: "That the parties were in the possession of the suit premises since the execution of the agreement to sell. The plaintiff and defendant No.2 held themselves to be the owner of the respective half property."
12. He has contended that the case in the plaint is of the plaintiff being in possession of the property and thus the question of the plaintiff being required to claim the further relief of possession does not arise, even if the legal proposition aforesaid were to be correct.
15. The next question which arises is whether the plaintiff can maintain a suit for cancellation of a document simplicitor even when the plaintiff is found entitled to further relief. The counsel for the defendants has contended that the principle in the proviso to Section 34 of the Specific Relief Act applies to Section 31 also; the same being a facet of declaration only. He has in this regard also drawn attention to AIR 1932 Vindya Pradesh 69. On the contrary, the counsel for the plaintiff has contended that Sections 31 and 34 are situated in different chapters of the Specific Relief Act and while the legislature has deemed it appropriate to insert the proviso in Section 34, no such condition has been imposed in Section 31.
16. However, the aforesaid question need not detain me further in as much I am unable to accept the plea of the defendants that the plaintiff is entitled to the further relief of possession. The claim of the plaintiff is not of exclusive ownership of the property/flat. The claim is of joint ownership of the property/flat along with the defendant No.2. One co-owner cannot claim the relief of possession against the other co-owner. Thus contrary to what the counsel for the defendants has urged, I do not find the plaintiff to be entitled to a further relief of possession and for the reason of not claiming which relief it can be held that the plaintiff is not entitled to maintain the suit for the relief of declaration of cancellation of document simplicitor. In Joy Gopal Singha Vs Probodh Chandra Bhattacharjee AIR 1935 Cal 646, a Division Bench held that a co-owner / co-sharer has no right to recover possession from another co-owner / co-sharer. This view has consistently been taken by all the High Courts as well as the Supreme Court, as noticed by another Division Bench in Minor Nantu Bag Vs Rasana Bala Dasi AIR 2001 Cal 53. The plaintiff as co-owner is only entitled to maintain a suit for partition against the other co-owner. However, the relief of partition is not such which a person/party can be compelled to claim. A person/party may be satisfied in keeping the property joint and may not be interested in partition and separate possession of his share. It would be inequitable if a co-owner is forced to have a partition of the property and cannot otherwise get his share of the property which is actually being received by his co-sharer even though the effect of partition may be a practical destruction of the property or a deterioration in its value. It was held in Abu Shahid Vs Abdul Dobhash AIR 1940 Cal 363 that this principle which is statutorily recognized in English law can be applied as a rule of equity, justice and good conscience in India. It thus cannot be said that merely because the plaintiff is claiming the relief of cancellation of sale deed of one half share of the property to which the plaintiff claims entitled to, he is also required to necessarily claim the relief of partition. If the plaintiff succeeds in having the relief of cancellation of sale deed, the result thereof would be that the defendant No.2 and the plaintiff in terms of the agreement to sell would be the owners of one half share each in the property and the plaintiff would be entitled to the sale deed of the other half share in his favour.”
16. The judgment in the case of Subhash Chandra Jarodia case that has been cited by the learned Counsel appearing on behalf of the Petitioners is in the context of a case where joint possession was not invoked while the judgment of the Supreme Court in Venkataraja case cited by the learned Counsel for Petitioners is a decision not in an Application under Order VII Rule 11 but in a decision in final hearing of the case. Neither judgments are of assistance to the Petitioners.
17. Section 115 of the CPC reads as follows: “Section 115 – Revision The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.”
18. The Supreme Court in Ambadas Khanduji Shinde v. Ashok Sadashiv Mamurkar10, has held that the revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate courts. Under Section 115 of CPC, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. The Supreme Court in Ambadas Khanduji case has held: “14. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction under Section 115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate courts. Under Section 115 of the Civil Procedure Code, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the trial court.”
19. The examination by the Court as set out above shows that no ground has been made out for exercise of revisionary jurisdiction. In any event and has been stated above, at this stage and in an Application under Order VII
Rule 11 of the CPC the examination is on the averments in the plaint and the contentions of the Defendants are a question of fact which would require to be proved at Trial.
20. There is another aspect to the matter. The Petition was taken up for hearing on 21.04.2022. On that date, this Court had directed stay of proceedings before the learned Trial Court. This stay was thereafter extended from time-to-time. The Court, thereafter, on account of multiple requests for adjournment had on 02.12.2024 deemed it apposite to vacate the stay.
21. In view of what is stated above and given the fact that the contentions raised by the Petitioners raised before this Court were also raised before the learned Trial Court and were adequately dealt, this Court deems it apposite to impose costs in the sum of Rs. 25,000/-. The costs shall be paid to the Respondent Nos. 1 and 2/Plaintiffs within six weeks from today. These costs are in addition to the costs that have already been imposed by the learned Trial Court. Proof of costs shall be filed with the learned Trial Court.
22. The Petition is, accordingly, dismissed. The pending Applications stand closed.
23. It is clarified that this order is not to be construed as an opinion on the merits of the case. Both parties are at liberty to raise all issues during the final hearing of the matter.
TARA VITASTA GANJU, J AUGUST 21, 2025 g.joshi/r