TANUSREE BASU & ORS. versus ISHANI PRASAD BASU & ORS.

Citation: [2008] 3 S.C.R. 1195 · Decided: 05-03-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

[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 
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in separate possession of flats, plaintiffs could not have put D 
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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 
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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 
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1196 
SUPREME COURT REPORTS 
[2008] 3 S.C.R. 
A application for a direction to the plaintiffs to remove the 
padlock and not to obstruct his peaceful possession. 
I 
. 
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 
E 
, possession of flat no. 201. 
· 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 
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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 
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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] 
Manohar Lal 

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