Chanan Singh vs Santa Singh

Chopra, J.—Harditta, a co-sharer in Field No. 1666 min measuring 4 bighas and 10 biswas, sold this land to Chanan and other co sharer in the joint khata for Rs. 400 by a registered sale deed dated 10th Magher 1999, Santa Singh and Bishna, the other co-sharers in the joint khata filed a suit for possession of 3/4th of the land in suit alleging that their share in the property could not have been alienated by Harditta. Their share in the joint khata amounted to 3/4th. The trial Court dismissed the suit but the appeal of the Plaintiff was accepted and the suit was decreed. The Defendants have filed this second appeal against the judgment of the District Judge.

The contention of the learned Counsel for the Appellants is that the holdings of the parties to this case have not been so far formally partitioned and the whole khata is mentioned as joint in the revenue record, but this particular khasra number has from a long time been in possession of Harditta vendor and for that reason the latter had every right to sell the property. He has drawn my attention to the evidence oral as well as documentary on the record in order to prove this fact. (After discussing the evidence his Lordship proceeded). From all this evidence on the record I have no hesitation to hold that the land in dispute has been in exclusive possession of Harditta and his family to the exclusion of the Plaintiffs.

It is an admitted principle of law that if a co-sharer is in exclusive possession of any portion of an undivided holding not exceeding his own share he cannot be disturbed in his possession until partition. If instead of remaining himself in possession he transfers this portion of the joint khata his transferee will also have the same rights and cannot be dispossessed by the other co-sharers until a final partition between the co-sharers has taken place. Applying this principle to the facts of the present case the Plaintiff cannot succeed in dispossessing the Defendants or cannot claim a joint possession with them till the final partition of the whole of the joint khata. The position of the transferee cannot be that of a trespasser but only of a co-sharer, subject to adjustment at the time of partition. Sukhdeo v. Parsi A.I.R 1940 Lah. 473 : ILR (1941) Lah. 583 decided by Bhide and Tek Chand JJ. is a case in which the facts were almost similar to the facts of the present case. It was held in that case

that the Plaintiff''s rights will be sufficiently safeguarded if he is granted a decree for declaration that the possession of the transferees in the lands in dispute will be that of co-sharers subject to adjustment at the time of partition

because in their view a co-sharer in established possession of any portion of an undivided holding not exceeding share could not be disturbed in his possession until partition and for the reason that the possession of a transferee from such a co-sharer could also not be disturbed till such time. Following this principle of law enunciated in the above quoted case, I accept this appeal of the Defendants and in lieu of the decree for possession given to the Plaintiffs by the District Judge pass a decree in their favour for a declaration that the possession of the Defendants in the land in dispute will be that of a co-sharer subject to adjustment at the time of partition. Taking into consideration the circumstances of this case I leave the parties to bear their own costs.