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16. However, the aforesaid question need not detain me further in as much I am unable to accept the plea of the defendants that the plaintiff is entitled to the further relief of possession. The claim of the plaintiff is not of exclusive ownership of the property/flat. The claim is of joint ownership of the property/flat along with the defendant No.2. One co-owner cannot claim the relief of possession against the other co- owner. Thus contrary to what the counsel for the defendants has urged, I do not find the plaintiff to be entitled to a further relief of possession and for the reason of not claiming which relief it can be held that the plaintiff is not entitled to maintain the suit for the relief of declaration of cancellation of document simplicitor. In Joy Gopal Singha Vs Probodh Chandra Bhattacharjee AIR 1935 Cal 646, a Division Bench held that a co- owner / co-sharer has no right to recover possession from another co-owner / co-sharer. This view has consistently been taken by all the High Courts as well as the Supreme Court, as noticed by another Division Bench in Minor Nantu Bag Vs Rasana Bala Dasi AIR 2001 Cal 53. The plaintiff as co-owner is only entitled to maintain a suit for partition against the other co-owner. However, the relief of partition is not such which a person/party can be compelled to claim. A person/party may be satisfied in keeping the property joint and may not be interested in partition and separate possession of his share. It would be inequitable if a co-owner is forced to have a partition of the property and cannot otherwise get his share of the property which is actually being received by his co- sharer even though the effect of partition may be a practical destruction of the property or a deterioration in its value. It was held in Abu Shahid Vs Abdul Dobhash AIR 1940 Cal 363 that this principle which is statutorily recognized in English law can be applied as a rule of equity, justice and good conscience in India. It thus cannot be said that merely because the plaintiff is claiming the relief of cancellation of sale deed of one half share of the property to which the plaintiff claims entitled to, he is also required to necessarily claim the relief of partition. If the plaintiff succeeds in having the relief of cancellation of sale deed, the result thereof would be that the defendant No.2 and the plaintiff in terms of the agreement to sell would be the owners of one half share each in the property and the plaintiff would be entitled to the sale deed of the other half share in his favour.

21. It would be thus be seen that the reasoning given by the trial court for not finding the ingredient of prima facie case in favour of the plaintiff is contrary to law.

The counsel for the defendants has relied on:-

1. Bhupinder Singh Rekhi Vs. C.S. Rekhi 1998 VII AD (Delhi) 200 on the aspect of a suit for declaration simplicitor. However, I have found above that the plaintiff is only seeking the relief of cancellation of a sale deed averred to have been executed in contravention of the agreement to sell and as co-owner being not entitled to sue for possession.

2. Deewan Arora Vs. Tara Devi Sen 163 (2009) DLT 520 this case is concerned with injunctions in suits for specific performance. However, in view of the discussion above that is not the test to be applied here.

3. Vinay Krishna Vs. Keshav Chandra AIR 1993 SC 957. Also laying down that the suit for declaration simplicitor when the plaintiff is entitled to further relief is not maintainable. However, as aforesaid the plaintiff in the present case was not entitled to the subsequent relief of possession on the basis whereof the plaint was sought to be got rejected.