Chander Bhan vs Jai Lal and Others

H.R. Khanna, J.—This regular second appeal filed by Chander Bhan defendant is directed against the judgment and decree of learned Senior Subordinate Judge, Rohtak, where by he reversed the decision of the trial Court and awarded a decree for declaration in favour of Jai Lal, plaintiff-respondent, that he was the exclusive owner of khasra No. 1582 and the same was not liable to be partitioned on the application of Chander Bhan.

The brief facts of this case are that Chander Bhan, Chaman Lal and Hira Lal, defendants 1 to 3, jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal had one-third share in that land and as a co-sharer was in exclusive possession of land bearing khasra No. 1582 since long. Chaman Lal sold the land bearing khasra No. 1582 to Jai Lal plaintiff by means of an oral sale on November 24, 1940 and a mutation, copy of which is Exhibit P. 1, was sanctioned on the basis of this sale in favour of the plaintiff on December 26th, 1940. The plaintiff, accordingly, entered into possession of the land bearing khasra No. 1582. A suit to pre-empt the above sale was filed by Chander Bhan defendant but the same was dismissed on January 7, 1943. Chander Bhan defendant subsequently applied for partition of the land comprising khasra Nos. 1582, 1585, 1258 and 1362. Jai Lal plaintiff thereupon filed the present suit for declaration on the allegation that he was in adverse possession of land bearing khasra No. 1582 as an owner for over twelve years and that the aforesaid land was not liable to be partitioned.

The suit was resisted by Chander Bhan defendant who averred that the plaintiff was in possession of land bearing khasra No. 1582 as a co-sharer and that the aforesaid possession was not adverse. The material issue, which was framed, was to the following effect :

Whether khasra No. 1582 is not liable to be partitioned on account of the allegation made in the plaint ?

The trial Court decided the above issue against the plaintiff and held that the transfer in favour of the plaintiff was subject to adjustment at the time of partition. On appeal the learned Senior Subordinate Judge reversed the finding of the trial Court and held that the plaintiff was in adverse possession of the land in dispute since the date of the sale in his favour.

I have heard Mr. G.C. Mittal on behalf of the appellant and Mr. R.S. Mittal on behalf of the plaintiff-respondent, and am of the view that the decision of the lower appellate Court cannot be sustained. From the resume of facts given above it would appear that defendants 1 to 3 jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal defendant No. 2, who was in exclusive possession of land bearing khasra No. 1582 as a co-sharer sold it to the plaintiff. This sale could only be subject to adjustment at the time of partition of the entire joint land As Chaman Lal was a co-sharer in the land, the position of the plaintiff, who was a transferee from Chaman Lal, could not be better than that of a co sharer. As such the plaintiff could not claim adverse possession over the land transferred to him in the absence of any overt act of which there is no proof on the record. It is significant that when Chaman Lal transferred the land comprising khasra No. 1582 he did so as a co-sharer and the mutation, which was entered in favour of the plaintiff, was only in the column of cultivation and not in the column of ownership. In the circumstances, he could not become the sole owner of the land in dispute by adverse possession. I am fortified in the above conclusion by a long chain of authorities. In Mam Raj v. Chhotu AIR 1933 Lah 763= 36 P.L.R. 880, it was held by a Division Bench AIR 1933 763 (Lahore) that there can be no adverse possession by one co-owner against another co-owner, and that the same principle applies to the case of a transferee from a co-owner. Mam Raj''s case was followed in Kanhya v. Trikha AIR 1925 Lah. 351, an I it was held that a transferee from a co-sharer occupied in the eye of the law the same position as his transferor and by the mere fact of obtaining a transfer in his favour and appropriating to his own use some of the joint land, he does not acquire title by adverse possession as against his co owner. The dictum laid down in Sowdagar Sheik Abdul Gafur v. Ashamath Bibi 54 I.C. 385 and Anwar v. Kishen Singh 71 I.C. 171, which were relied up on by the learned Senior Subordinate Judge in present case, was expressly dissented from. Sukh Devi v. Parsi AIR 1940 Lah. 473 has a great bearing on the present case. In that case a Division Bench (Tek Chand and Bhide, JJ.) of the Lahore High Court observed that it was a well settled principle of law that if a co-sharer was in established possession of any portion of an undivided holding, not exceeding his own share, he could not be disturbed in his possession until partition It was, accordingly, held that a co sharer, who was in possession of any portion of his joint khata, could transfer that portion subject to adjustment of the rights of the other co-sharers at the time of the partition. In Subah Lal Vs. Fateh Mohamad Sulaiman and Niamatullah, JJ., held that the principle of law relating to co ownership would apply with equal force to a transferee from a co-owner. Similar views were expressed in Halim Shah v. Rahim Bux AIR 1930 Oud. 475, and Biswanath Chakravarti Vs. Rabija Khatun and Others,

I would accordingly, accept the appeal, set aside the judgment and decree of the lower appellate Court and dismiss the suit of the plaintiff. In the circumstances of the case the parties are left to bear their own costs throughout.