Without Partition, Every Co-sharer Owns Every Inch — Calcutta High Court Upholds Dismissal of Encroachment Plea

Calcutta High Court reaffirmed a long-settled principle of property law: until a lawful partition is effected, each co-sharer is deemed to own and possess every inch of the undivided property. The Division Bench of Justices Sabyasachi Bhattacharyya and Uday Kumar dismissed an appeal challenging a Single Judge’s order that had relegated a dispute over alleged State encroachment to the Civil Court. The ruling underscores that complex land disputes involving co-ownership and factual controversies cannot be summarily resolved in writ jurisdiction.

The dispute centred on plot no. 117, measuring three decimals in the records of rights. The appellants had purchased two decimals, alleging that their co-owner, Ananta Mondal, had gifted only 167 square feet to the State (Panchayat Samity) but that the State had constructed a permanent waiting room over 341 square feet—encroaching on their share and part of an adjoining road.

They sought writ relief declaring that the State could not occupy more than what was gifted without acquisition and compensation. Alternatively, they prayed for removal of the “unauthorized” structure or compulsory acquisition with due payment. During the case’s pendency, the construction was completed, prompting the appellants to insist on writ relief based on “admitted facts” from the State’s own affidavit.

The Single Judge rejected the writ petition on April 25, 2025, holding that the matter was one for a civil suit between co-sharers. The appellants brought this intra-court appeal.

The Division Bench noted a fundamental factual conflict: although the official records pegged the plot’s size at three decimals, the mouza map showed it as 4086 square link. “The predecessors-in-interest of both parties were in occupation of larger area than has been recorded in the records-of-rights,” the Court observed. It found that, even after excluding the constructed portion, the appellants were still in possession of land commensurate with their purchased share.

The Court firmly rejected the theory of “exclusive” possession in an undivided holding:

“In the absence of any proper partition by metes and bounds… all parties, including the State authority as well as the appellants, remain co-sharers of the property.”

It added that: “By legal fiction, every co-sharer has right, title and interest over every inch of the property and consequentially, possession of one co-sharer is deemed to be held on behalf of all.”

Since there had been no partition decree or registered partition deed, the Bench held that claims of “encroachment” upon the appellants’ exclusive share were legally misconceived. Resolving discrepancies in measurements and possession, it said, required evidence—oral and documentary—that could only be assessed in a regular civil trial.

Details of the Judgment

Affirming the Single Judge’s approach, the Bench held that writ jurisdiction was ill-suited to decide “complex and disputed questions of fact” between co-sharers. It further reminded that in an intra-court appeal, interference is warranted only in cases of “gross illegality” or “material perversity,” neither of which existed here.

“On a preponderance of probability, one of the plausible views on the available facts was taken by the learned Single Judge,” the Court noted, adding that “there is no scope of interference in an intra-court appeal on such count.”

The appeal and connected application were dismissed, with liberty to the parties to pursue their remedies before a competent civil court.

By upholding the dismissal, the Calcutta High Court has sent a clear message: disputes between co-sharers over alleged encroachment, especially when riddled with factual contradictions, belong in the civil courts. As the Bench made plain, until a lawful partition is effected, no co-sharer—whether an individual or the State—can claim exclusive ownership over a defined part of the property.

Date of Decision: August 7, 2025