Ashok Bansal and others vs Gurdas and another

M.M. Kumar, J.—This revision petition is directed against the order dated 11th September, 2001 passed by the Additional District Judge (I) Panchkula dismissing the appeal of the plaintiffpetitioners filed against the order dated 7th June, 2001 passed by the Additional Civil Judge (Senior Division), Panchkula. The Civil Judge vide his order dated 7th June, 2001 has dismissed the application of the plaintiffpetitioners filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity ''the Code'') filed in Civil Suit No. 133 of 2001.

Brief facts necessary for the decision of the revision petition are that the plaintiffpetitioners filed a suit for declaration to the effect that crop entry of March, 2000 in favour of the defendantrespondents is illegal, null and void and for further declaration that the plaintiffpetitioners are owner in exclusive possession of the suit land. In the alternative, a prayer was made for the declaration that the plaintiff and defendants are coshares with the plaintiffs being in exclusive possession of the suit land subject to partition with a consequential relief of injunction restraining defendant respondents their transferee etc. from creating any road or raising any construction, without getting the same partitioned, would prejudice the rights of the plaintiffpetitioners. Alongwith the suit an application under Order 39 Rules 1 and 2 of the Code was also filed praying for ad interim injunction to restrain defendantrespondents from raising any construction or/and interfering in their peaceful possession of the suit land. The trial Court after a detailed discussion came to be conclusion that the case set up by the plaintiffpetitioners that they were in exclusive possession of Khasra No. 243/157 measuring 112 bighas 5 biswas on the basis of three sale deeds dated 6th October, 1990, 15th November, 1990 and 16th November, 1990 was not supported by the copies of the sale deeds placed on record. The sale deeds in unequivocal terms contain a stipulation that the plaintiffpetitioners had purchased a share out of the khasra number and the sale is not in respect of specific khasra number. Therefore, the land in dispute is in the joint holding. A copy of the mutation sanctioned in favour of the plaintiff petitioners was also considered by the trial Court and it was held that the mutations are not a record of right which is maintained only for fiscal purposes nor the mutation establishes the possession of an individual. The other document considered by the trial Court was the entry in the Khasra Girdawari which showed that there was only one entry in favour of Rameshwar Dass of the year 1985 one of the vendors. However, on the contrary the trial Court reached the conclusion that since the year 1990 Smt. Chander Kaur, one of the vendor and the respondent was recorded to be in cultivating possession of the suit land from 2000. Therefore, the trial Court reached the conclusion that the plaintiffpetitioners failed to prove their exclusive possession over the suit land bearing Khasra number 243/157. The trial Court also considered that the plaintiffpetitioners had earlier instituted a suit for permanent injunction against Lal Chand Bansal, predecessor in interest of defendant respondents in respect of the suit land wherein application for ad interim injunction was dismissed. Even the report of the Local Commissioner showed that none of the parties were able to state the exact position of the boundaries of the relevant Khasra number of the suit land and on the spot there was a room constructed by the defendantrespondents. The trial Court, therefore, dismissed the application. On appeal to the Additional District Judge, the order passed by the trial Court was affirmed and the appeal dismissed on 11th September, 2001.

I have heard Sh. Manmohan Singh, learned Senior Advocate and Sh. Sudarshan Goel, Advocate for the. respondent and have perused the various documents placed on record with their assistance.

Sh. Manmohan Singh, learned Senior counsel has argued that until and unless effective partition has taken place it is not impermissible to transfer the proprietary rights exclusively in respect of a particular khasra number. He has placed reliance on a Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 PLJ 204 and a Division Bench judgment of the Labour High Court in the case of Sukhdev v. Parsi and others, (1941)43 PLR 626. He has also placed reliance on the case of Ram Niwas v. Jai Ram alias Tej Ram, 2000(3) RCR(Civil) 738 and the case of Bachan Singh v. Swaran Singh, 2000(3) RCR(Civil) 70 (DB) (P&H) : (20003)126 PLR 416. According to the learned counsel a cosharer who is in exclusive possession of a joint khata can transfer that portion subject to adjustment of the rights of the other cosharers therein at the time of partition. According to the learned counsel, the rights of the other cosharer will be sufficiently safeguarded if they are granted a decree by giving them a declaration that possession of the transferees in the land in dispute would be that of a cosharer subject to adjustment at to time of partition. The precise argument of the learned counsel is that a cosharer can still claim exclusive possession in the land if the land is transferred to the cosharer exclusively subject to adjustment at the time of partition. Therefore, according to the learned counsel once the plaintiffpetitioners are considered to be cosharer and in exclusive possession of Khasra No. 243/157 then it cannot be claimed that they are not entitled to interim relief restraining the defendantrespondents from raising any construction or resorting to any type of digging or interfering with the possession of the plaintiffpetitioners. Sh. Manmohan Singh, learned Senior counsel has further submitted that in the mutation Annexure A/8 the name of Rameshwar Dass has been mentioned and in Annexure A/9 again the name of Rameshwar Dass figures for the year 198485. He has submitted that the Courts below have misread the Annexure A/8, A/9 and A/10.

On the other hand, Sh. Sudarshan Goel, learned counsel for the defendant respondents has submitted that once the petitioners have themselves sought a declaration that plaintiffs and defendants are cosharer with plaintiffs being in exclusive possession of the property and the land is subject to partition with consequential relief of injunction then it cannot be claimed on the basis of the judgment of the Full Bench in the case of Bhartu''s case (supra) that the plaintiffpetitioners are entitled to maintain their exclusive possession subject to partition. He has further argued that as a matter of fact the plaintiff petitioners have not been transferred exclusive possession of the aforementioned khasra number because categorical finding given by the trial Court is that a share in the khasra number has been transferred by the sale deed dated 6th October, 1990, 15th November, 1990 and 16th November, 1990. The sale deeds have been rightly interpreted by the trial Court as well as by the lower appellate Court to mean that a share in a particular khasra number has been transferred. He has further submitted that even the report of the Local Commissioner does not support the contention of the plaintiffpetitioners. Therefore, he has prayed that this revision petition be dismissed.

I have thoughtfully considered the arguments raised by the learned counsel for the parties and am of the considered opinion that this revision petition is liable to be dismissed because firstly both the Courts below have concurrently reached the conclusion that the plaintiffpetitioners have not been transferred the exclusive possession of specific khasra number 243/157 by the sale deeds. It is only a share of the joint holding which has been transferred. Moreover, the vendors of the plaintiffpetitioners could not have executed the sale deeds in respect of specific khasra number when they themselves were not in exclusive possession thereof. Moreover, the report dated 26th May, 2001 of the Local Commissioner after his personal visit to the site does not support the case of the plaintiffpetitioners. It has been observed in the report that no crop is cultivated on the land in dispute which lies next to the river bed and also expressed her inability to demarcate the khasra number. Although both the parties were present at the site at the time of inspection but none of them was able to state the exact position or the relevant boundary of the Khasra number. A room has been found to be in existence which belonged to the defendantrespondents. On the basis of the above mentioned facts it cannot be claimed that the ratio of the judgment in the case of Sukhdev (supra) or the Full Bench judgment in the case of Bhartu (supra) would be attracted because the proposition canvassed by Sh. Manmohan Singh, learned Senior counsel on the basis of the aforementioned judgments would not arise on the facts of this case. For the application of the judgments of the Full Bench and of the Division Bench of the Lahore High Court it was required to be shown that the plaintiffpetitioners were in exclusive possession of some portion of the joint holding and then it could be said that they were entitled to continue in possession when joint holding is partitioned. In the absence of such a finding of fact possession of joint property by one cosharer is in the eyes of law possession of all even if all but one are actually out of possession. The observations of the Full Bench in so far as they are relevant to the present case reads as under :

"The interse rights and liabilities of the cosharers were settled by a Division Bench of this Court in a very detailed judgment in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Pb. 528 and the following propositions, inter alia, were settled :

A coowner has an interest in the whole property and also in every parcel of it.

Possession of joint property by one coowner is in the eye of law, possession of all even if all but one are actually out of possession.

A mere occupation of a larger portion or even of an entire joint property does hot necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a coowner must not only be exclusive but also hostile to the knowledge of either as, when a co owner openly asserts his own title and denies that of the other.

Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property except in the event of ouster or abandonment.

Every coowner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other coowners.

Whether a coowner is in possession of separate parcels under an arrangement consented by the other coowners, it is not open to any body to dispute the arrangement without the consent of others except by filing a suit for partition.

It is evident from the said proposition that when a cosharer is in possession exclusively of some portion of the joint holding, he is in possession thereof as a cosharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. It is also undisputed that a vendor cannot sell any property with better rights than he himself has. Consequently when a cosharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as cosharer is in the said land the right to remain in its exclusive possession till the joint holding is partitioned amongst all the cosharers. It was on the basis of that a Division Bench of the Lahore High Court in Sukhdev v. Parsi plaintiff and others, (1941)43 PLR 626, held that a cosharer who is in exclusive possession of any portion of a joint khata can transfer that portion subject to adjustment of the rights of the other cosharer therein at the time of partition and that of her cosharer''s right will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferees in the lands in dispute will be that of a cosharers, subject to adjustment at the time of partition. As is well known, a declaratory decree is nothing but a judicial recognition of the existing rights and such a decree does not tend to create any rights. The passing of the declaratory decree, therefore, shows beyond doubt that what the vendee gets in the transfer from a cosharer is the right of that cosharer and not exclusive ownership of any portion of joint land. It is also undisputed that the right of preemption is available not only when a cosharer sells the whole of his share but also when he sells a portion thereof. When a coowner describes the land sold out of his share not in terms of a fractional share of the holding but in terms of measurement and khasra numbers and then he sells nothing but his rights as cosharer in the joint holding i.e. a portion of his share therein. The share in the joint holding according to the dictionary meaning also does not mean a fractional share and instead means a definite portion of the property owned by a number of persons in common."

The judgment of the Division Bench in the case of Bachan Singh (supra) relied upon by the learned counsel for the petitionerplaintiffs does not in any manner advance his case. The Division Bench after relying upon various judgments as well as the Full Bench of this Court referred to above, concluded as under :

"On a consideration of the judicial pronouncements on the subject we are of the opinion that :

(i) A coowner who is not in possession of any part of the property is not entitled to seek an injunction against another coowner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of the coowner out of possession :

ii) Mere making of construction or improvement of, in the common property does not amount to ouster;

iii) If by the act of the coowner in possession the value or utility of the property is diminished, then a coowner out of possession can certainly seek an injunction prevent the diminition of the value and utility of the property;

iv) If the acts of the coowner in possession are detrimental to the interest of other coowners, a coowner out of possession can seek an injunction prevent such act which is detrimental to his interest.

In all other cases, the remedy of the coowner out of possession of the property is to seek partition, but not an injunction restraining the coowner in possession from doing any act in exercise of his right to every inch of it which he is doing as a coowner."

A perusal of the above quoted principle extracted by the Division Bench makes it abundantly clear that coowner who is not in possession of any part of the property cannot seek an injunction against another coowner unless any act of the person in possession of the property causes prejudice or is adverse to the interest of the coowner who is in possession. Even raising of construction or improvement on any property does not amount to prejudice to the interest. In any case, it has nowhere been pleaded that the raising or construction or doing any act by the defendantrespondents would diminish the utility of the joint property.

In so far as the other argument raised by the learned counsel for the petitionerplaintiffs that the entries of mutation for the year 198586 support the case of the plaintiffpetitioners because the name of one of the vendor has been recorded does not require serious consideration because the mutation entries do not confer any proprietary right and only are maintained for fiscal purposes nor the entry in the mutation establishes the possession of an individual. Therefore, neither any irregularity or illegality in the exercise of discretion under Order 39 Rules 1 and 2 of the Code has been exercised by the Courts below warranting interference by the court under section 115 of the Code. Therefore, the revision petition is liable to be dismissed.

For the reasons recorded above, this petition fails and is dismissed.