S.34 SRA | Relief Of Possession Not Required In Suit For Cancellation Of Sale Deed When Plaintiff Is Co-Sharer In Suit Property: MP High Court

The Madhya Pradesh High Court, Indore Bench recently observed that the relief of possession is not required to be sought by a Plaintiff in a Suit for cancellation of Sale Deed when the Plaintiff is a co-sharer in the Suit property.

The bench comprising Justice Subodh Abhyankar observed that in such cases, the Suit would not be hit by the proviso to Section 34 of the Specific Relief Act. Placing reliance on the decision of the Supreme Court in Md. Mohammad Ali v. Jagadish Kalita, the Court observed-

In view of the aforesaid dictum of the Supreme Court, it is apparent that in a suit for partition, when the property belongs to one co-sharer, it shall be deemed to be held by that co-sharer on behalf of the other co-sharers, and in such circumstances, in the considered opinion of this court, it is not required by the plaintiff-co-sharer to specifically claim possession as well, and thus, the suit shall not be barred under proviso to u/s.34 of the Specific Relief Act, 1963. Even otherwise, it found that in the plaint, the plaintiff has clearly averred that the property is a joint family property which has been sold without there being any partition, thus, on the face of it, plaintiff's suit cannot be rejected merely on the basis of the plaint averments. Hence also, at this stage the suit cannot be rejected under Or.7 rule 11 of CPC.

Facts of the case were that the Respondent had instituted a suit against the Petitioners for cancellation of sale deed and permanent injunction vis-à-vis the suit property. Thereafter, the Petitioners moved an application before the trial court under Order VII Rule 11 CPC, however, the same was rejected. Aggrieved, the Petitioners moved the Court.

The Petitioners argued before the Court that despite the Suit property being in possession of one of the Defendants, the Respondent/Plaintiff did not seek relief of possession her in her Suit. It was asserted that by virtue of the same, the Suit was hit by proviso to Section 34 of the Specific Relief Act and the Plaint was liable to be rejected under OVII R11 CPC.

Per contra, the Respondent/Plaintiff submitted that she was a co-sharer in the Suit property and that she had an equal share in it, which was on par with the other Defendants.

Examining the submissions of parties and documents on record, the Court did not find merit in the arguments put forth by the Petitioners. It noted that a co-sharer having possession of the property with multiple co-sharers, is deemed to be having its possession on behalf of the other co-sharers. The Court further observed that the Respondent/Plaintiff had clearly averred in her Plaint that the Suit property is a joint family property which had been sold without there being any partition. Thus, the Court noted that on the face of it, the Suit could not be rejected merely on the basis of the Plaint averments or that it was hit by proviso to Section 34 of the Specific Relief Act.

With the aforesaid observations, the decision of the trial court in rejecting the application of the Petitioners was upheld and accordingly, the petition was dismissed.

Cause Title: Manorama & Anr. v. Sudha & Ors. [C.R.R. 288/2023]

Case Citation: 2023 LiveLaw (MP) 65

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