Dharambir vs Suraj Bhan

M.M. Kumar, J.—This is plaintiff''s second appeal filed under Section 100 of the Civil Procedure Code, 1908 (for brevity, `the Code'')

challenging the concurrent findings of facts recorded by both the Courts below holding that the plaintiffappellant has failed to show as to how the

land transferred by defendantrespondent No. 5 Smt. Chandro daughter of Ramji Lal is more than her share in the joint khewat. It has further been

held that defendantrespondent No. 5 could have sold her own share and not more than that and the same can be taken care of during partition.

The view of the learned Addl. District Judge, Jhajjar, on this issue read as under :

I find the arguments of the learned counsel for the defendantsrespondents No. 1 to 4 to be tenable because a perusal of the copy of the jamabandi

for the year 198990, i.e. Ex. PY reveals that the defendantrespondent No. 5 vendor Chandro had got 11/180 share in the total land measuring 68

bighas 15 biswas whereas, vide the impugned sale deed, she has sold only 1 bigha 17 biswas land as comprised in khasra No. 2369 of the joint

khewat. The plaintiffappellant has not been able to show as to how the abovementioned land, as sold vide impugned sale deed, is more than the

share of vendor defendantrespondent No. 5 in the joint khewat. Even otherwise, the vendor defendantrespondent No. 5 could have sold only her

share in the total joint holdings and even if for the sake of arguments, it is presumed that the land as sold vide impugned sale deed, exceeds her

share, even then it cannot adversely effect the share of the plaintiff in the joint holding because it is well settled that no person can transfer a better

title in a property than he himself has got in the same and therefore, at the time of partition, defendantsrespondents No. 1 to 4 shall get only that

much land which their vendordefendantrespondent No. 5 Chandro had got as her share in the joint holdings at the time of execution of the

impugned sale deed. Though, undisputedly, the total land as comprised in the joint Khewat, in which the disputed land is comprised, has not been

partitioned by the competent revenue authorities and though, vide the impugned sale deed, defendantrespondent No. 5 vendor has sold a specific

portion out of the joint Khewat but even then, this sale would amount to the sale of the share of cosharer vendordefendantrespondent No. 5.

The learned Additional, District Judge has also found that the plaintiff appellant is not in exclusive possession over the suit land at the time of its

sale in favour of defendantrespondents No. 1 to 4. In this regard, the findings of the Additional District Judge read as under :

It is undisputed between the parties that the khewat in which khasra No. 2369 is comprised, is a joint holding. It being so, every cosharer has got

a right in every inch of the same. Even if it is presumed that there had been mutual arrangement over settlement between all the cosharers in respect

of their possession over different parts of this joint holding, even then it was entirely for the plaintiff to prove his exclusive possession over the

disputed land, as sold vide impugned sale deed, to seek protection of his possession over the same by way of permanent injunction but he has not

been able to place on record any cogent evidence to prove the same.

Mr. S.S. Ahlawat, learned counsel for the plaintiffappellant has made valiant efforts to persuade me for taking a view different than the one

taken by the Courts below. He has argued that Chandro defendantrespondent No. 5 has sold more than the area of her share. According to the

learned counsel as a consequence of sale to defendantrespondents No. 1 to 4 over and above her share, the possession of the plaintiffappellant

has been interfered with.

Having heard the learned counsel, I do not find any legal infirmity in the findings of fact recorded by both the Courts below. The question of

possession is a question of fact which cannot be interfered in a second appeal filed under Section 100 of the Code. It would not give rise to any

question of law unless it is shown that the findings recorded by the courts below are based on no evidence or are perverse to the extent that no

reasonable person on the available evidence would reach the conclusion recorded by the Courts below. This view has been expressed by the

Supreme Court in M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244, Ramanuja Naidu v. V. Kanniah Naidu,

1996(2) RRR 554 (SC) : (1996) 3 SCC 392, Yadarao Dajiba Sharawane v. Nanilal Harakchnds Shah, 2003(1) RCR(Civil) 509 (SC) : (2002) 6

SCC 404 and Mohan Lal v. Nihal Singh, 2002(1) RCR(Civil) 132 (SC) : (2001) 8 SCC 584. The principle enunciated by the Supreme Court in

the aforementioned judgments when applied to the facts of the present case, it becomes evident that the findings recorded by the courts below are

based on jamabandi for the year 198990 Ex. PY which reveals that defendantrespondent No. 5 Chandro had got 11/180 share in the total land

measuring 68 Bighas 15 Biswas. She sold merely 1 Bigha and 17 Biswas land comprised in Khasra No. 2369 their joint khewat. By simple

arithmetic, the sold land would come to less than the share of Chandro defendantrespondent No. 5. Apart from the jamabandi and the saledeed

there are oral statements which would constitute a valid basis for the Courts below to conclude that defendantrespondent No. 5 did not sell land

more than her share. Both the courts below have also found that even if it is presumed that she has sold more than her share which obviously she

cannot, then during the partition proceedings the same would be creased out and only she would be deemed to have sold only to the extent of her

share. On the question of exclusive possession, both the Courts below have found that the plaintiffappellant has failed to show that he was in

exclusive possession of Khasra No. 2369. In the absence of any evidence produced by the plaintiff appellant, the courts below have concluded

that Khasra No. 2369 is a joint holding and all the cosharers are in joint possession. In view of the above mentioned findings, the suit filed by the

plaintiffappellant has been rightly dismissed. Therefore, I do not find any valid ground to interfere in the aforementioned findings of facts as it would

not give rise to any substantive question of law. The appeal is thus without merit and is liable to be dismissed.

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