Yes if the property is different you have to mention both and also the cause of action. If it’s common cause of action then single suit can be filed observing limitation but for different cause of action limitation needs to be properly acertained
Property partition follow up questions
This is a follow up question on this thread https://www.kaanoon.com/492479/execution-petition-regarding-a-property 1) The original suit for this shop was started by my brother stating that i am running the shop and court should give me permanent injunction regarding this property however in the counter claim our advocate submitted that it was a joint ownership property and everone has joint possession of the property. The court also in the original judgment accepted that " All the legal heirs are joint owners and have a joint possession of the property".... i got to know this thing today that court has accepted joint possession but in actual scenario i do not have the possession even though court has accepted it through my advocate arguments because other legal heirs wanted to move the case with this premise. the original case was started in 1994 for which the original judgement came in 2019 , after that appeal was filed which got denied in april 2025. I have following questions 1) The court accepted i am in joint possession even though i am not and also other legal heirs are also not, i cant file execution petition now because i cant ask anything in execution petition and the brother is refusing to give possession of the shop what options do i have ? 2) There is a possibility of getting objections as partition could have been asked in the counter claim however it was not asked whether it will create problems during the partition suit CPC Order 2.Section 2? 3) There is a ancestral residential house as well however there was no case on that property and the case was only limited to the shop. So when we will create partition suit for both whether it will create issue as our cause of action started from 1994 Can you please provide your guidance on the same which will help my case also if u can provide some references of some supreme court and MP high court judgments that will be helpful
Asked 4 months ago in Property Law
Religion: Muslim
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5 Answers
1. You may have to file a suit for partition and ask for a separate possession of your rightful share in it based on the judgment.
2. Partition can be sought anytime, there's no necessity that it has to be sought only by a counter claim.
3. If there are any other property left out, even they have to included in the suit for partition.
Possession of one is regarded as possession of all
2) you have to file suit for partition for division of property by metes and bounds
3) it should not create problems in partition suit as suit was for permanent injunction filed by brother .
4) file suit for partition of both properties
Even though the judgment says all legal heirs are joint owners and have joint possession of the shop, actual possession is still not with you. If a co-owner excludes you from actual possession despite a judgment declaring joint ownership, you can still file an execution petition for actual joint possession. Courts and precedents support this: the Supreme Court in Sri Ram Pasricha v. Jagannath and Md. Baqar v. Naim-un-Nisa, as well as the Delhi High Court in K.K. Dewan v. District Judge and Punjab & Haryana High Court in Yoginder Kumar Sud v. Thakur Rajiv Singh have held that joint possession decrees are executable and you can seek real, not just symbolic, possession. The executing court can even direct removal of obstruction and seek police help if required.
If partition relief was not asked for in the original proceedings or counterclaim, you are not barred from filing a partition suit now. The Supreme Court in S. Nagraj v. B. S. Ramaswamy, and Md Baqar v. Naim-un-Nisa has reaffirmed that unless the issue of partition was conclusively decided before, co-owners can seek partition in a new suit. The right to partition is a continuing cause of action and Order 2, Section 2 CPC will not bar your subsequent suit unless the matter is already adjudicated.
You can also seek partition for the ancestral residential house along with the shop, even though the previous case related only to the shop. The right to partition remains until all joint properties are divided by metes and bounds, and clubbing multiple properties in one suit is permissible. The cause of action continues irrespective of when earlier litigation began or was decided.
You should file the execution petition for joint possession, file a partition suit for both the shop and house if they are jointly owned, and if objections arise about earlier proceedings, cite the Supreme Court and MP High Court judgments that confirm your continuing right.
Your rights to possession and partition are well recognised in Indian law, and clear judicial precedents protect your interests in these circumstances.
1) Without Physical Possession Options:
File partition suit immediately - courts recognize that joint possession includes constructive possession. Even without physical possession, your right to joint ownership creates entitlement to partition. File application under Section 151 CPC for court receiver appointment to secure property pending partition[attachment].
2) Counter Claim Without Partition - No Bar:
Order 2 Rule 2 CPC won't apply - partition wasn't part of original cause of action since your brother initially sought injunction, not partition. Counter claim only established joint ownership. Fresh partition suit is maintainable as different cause of action.
3) Ancestral House Inclusion:
Separate cause of action for ancestral house won't create issues - it wasn't subject matter of 1994 suit. File comprehensive partition suit for both properties together. Limitation doesn't apply to coparcener's right to partition of ancestral property.
