Respectable Members and lawyers of India
I understand there has been a ruling by the Supreme Court of India over the use of Common Property. The Supreme Court of India had ruled that Common Property in any joint ownership is considered an undivided property where every owner has equal rights and no one owner can use the common areas for his exclusive use.
I have an ancestral home where my other owners sold their shares to a gentleman who forcibly parks his cars in the common passage. The passage is the only way for ingress and egress from the property. After parking his cars there is hardly any space left to walk freely in the passage. According the approved Kolkata Municipal plan, there is no provision for car parking in our house.
In our house plan approved by the Kolkata Municipal Corporation it is shown as the only passage for ingress and egress from our house. The passage is barely 8 feet wide. The other passage is at the back of the house which is 4 feet wide and is used as service passage used by sweepers.
I was surfing the internet and find that the followings but no judgment reference is present for us laymen to understand and find it in the books of law. Your attention is kindly drawn to the followings.
Who is 'co-owner' has succinctly been stated in Mitra's Co-ownership & Partition, seventh edition, which is to the following term:-
"All co-owners have equal rights and co-ordinate interest in the property."
The aforementioned decision of the Apex Court has also been followed by the Supreme Court in Kochkunja Nair v. Koshy Alexander and Ors., wherein they law has been laid down in the following terms :-
"Ownership imports three essential rights, namely right to possession, right to enjoy and right to dispose of if an owner is wrongly deprived of possession of his property, they has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory, interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others (vide, Mitra's Co-ownership and Partition, 7th edition)."
A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath , that a co-owner owns every part of the composite property along with others. the following statement of law has been made by their Lordships:
"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner of a fractional owner of the property. The position will change only when partition takes."
I would remain thankful to any lawyer who would be kind enough to provide any reference to the Judgment and where to find it.
For this act of kindness I would remain thankful.
Respectfully
Amitava Basu
