Bombay High Court
MR. WAJAHAT HUSSAIN @ VAZAHAT HUSAIN JAFARIversusMR. GAZI GHULAM ABBAS
- Decided
- Disposal
- Disposed Off
Holding
A co‑owner alone may institute a suit for possession and the non‑joinder of other co‑owners does not invalidate the decree; therefore the appeal is dismissed.
Summary
The appellant, Wajahat Hussain, challenged a decree granting possession and a perpetual injunction to the respondent, Gazi Ghulam Abbas, on the ground that the suit was based on forged documents and that necessary parties, including co‑owners, were not joined. The appellant alleged that the plaintiff falsely claimed a Power of Attorney from his brother Asad Abbas and that the suit should be dismissed for non‑joinder. The court held that the agreement for sale showed joint ownership and that a co‑owner may sue for possession without the presence of all co‑owners, rendering the non‑joinder argument untenable. It also found no evidence that the defendants had any right to possess the flat and rejected the claim of forged documents. Consequently, the appellate court found no substantial question of law under Section 100 of the CPC and dismissed the second appeal, also disposing of the interim application.
Issues considered
- Whether the non‑joinder of co‑owners or other necessary parties defeats a suit for possession of jointly owned property.
- Whether a forged Power of Attorney alleged by the appellant affects the validity of the decree.
- Whether the defendants have any right to possess the suit flat.
- Whether the appellate court can interfere with the findings of fact under Section 100 of the Code of Civil Procedure, 1908.
Legislation cited
- Code of Civil Procedure, 1908 — s. 100
Subjects
- possession
- co‑ownership
- joinder of parties
- forged document
- civil appeal
- Section 100 CPC
- decree
- injunction
Judgment
7-SA456-2026+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 456 OF 2026
WITH
INTERIM APPLICATION NO. 7274 OF 2026
Wajahat Hussain @ Vazahat Husain Jafari ...Appellant/
Applicant
Gazi Ghulam Abbas …Respondent
Mr. Imran Shaikh, for the Appellant.
Mr. Prashant Rajput, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED: 30th SEPTEMBER, 2026
Oral Order:-
1. Heard the learned Counsel for the parties.
2. This second appeal is directed against a judgment and
decree dated 2nd April, 2026 passed by the learned Principal
District Judge, Thane, in Regular Civil Appeal No.212/2019,
ARUN
RAMCHANDRA
SANKPAL
whereby the appeal preferred by the appellants – original
Digitally signed by
ARUN RAMCHANDRA
SANKPAL
Date: 2026.10.03
12:19:20 +0530
defendant against a decree for possession and perpetual
injunction passed by the trial Court in RCS/929/2012, came to
be dismissed.
3. The learned Counsel for the appellant submitted that the
suit flat was purportedly purchased by Gazi Ghulam Abbas, the
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respondent – plaintiff alongwith his brother Asad Abbas.
However, the plaintiff falsely claimed that, Asad Abbas had
executed a Power of Attorney in favour of the plaintiff, and the
Courts below have thus committed a manifest error in passing a
decree on the basis of false and forged documents. It was
further submitted that the plaintiff alone could not have
instituted the suit. The suit was bad for non-joinder of
necessary parties.
4. The learned Counsel for the appellant submitted that the
original defendant No.1 and defendant No.2 were the sisters of
the plaintiff and Asad Abbas and defendant No.3 was the sister-
in-law of the plaintiff and they were inducted in the suit flat in
the year 1993 by Asad Abbas. Thus a decree for possession
could not have been passed against the defendants.
5. Evidently, the Agreement for Sale reveals that the suit flat
was jointly purchased by Gazi and Asad Abbas. It is
incontrovertible that the plaintiff is a co-owner of the suit flat. It
is not necessary that all the co-owners must join in the
institution of the suit for recovery of possession of the property.
One of the co-owners is entitled to institute the suit for
possession. Therefore, the ground that the suit was bad for
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non-joinder of necessary parties, does not merit any
countenance.
6. An endeavour was made on behalf of the defendant Nos.1
and 2 to drive home the point that the suit property was
acquired out of the funds or income from the properties of their
parents. However, the Courts have negatived the contention
and, rightly so, as a suit for administration of the estate of the
father instituted by the defendants came to be dismissed for
want of prosecution and, even otherwise, no evidence was
adduced to substantiate the said defence.
7. The defendants, the Courts below have found, failed to
show that, they have right to possess the suit flat. In the
absence of any right to occupy the suit flat, the defendants
cannot be permitted to hold on to the suit flat on an
unsubstantiated plea that they were inducted by another co-
owners. At any rate, the possession of the defendants could only
be said to be permissive without any semblance of right.
8. In the aforesaid view of the matter, the findings of facts
recorded by the Courts below are not open for interference in
exercise of the second appellate jurisdiction under Section 100
of the Code of Civil Procedure, 1908. Hence, no question of law,
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much less a substantial question of law, arises for
consideration.
9. The second appeal stands dismissed.
10. In view of the dismissal of the second appeal,
IA/7274/2026 also stands disposed.
[N. J. JAMADAR, J.]
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