Harju and Premu vs Bidhi Chand and Others

Surinder Singh, J.—The present Regular Second Appeal was admitted on the following substantial questions of law:-

Whether there has been misreading of oral as well as documentary evidence by the learned first Appellate Court?

Whether the suit was time barred?

Heard and gone through the record.

The respondents/plaintiffs 1 to 5 had filed a suit against the appellants/defendants seeking declaration with a consequential relief of injunction with respect to the suit land. It was the case of the plaintiffs that their father and the father of defendant No. 1 named Shri Devi Ram son of Kataku Ram was the owner of the suit land, as recorded in the Jamabandi for the years 1975-76. After his death, the suit land was inherited by the plaintiffs and defendant No. 1 and they remained in its joint-possession to the extent of 1/7th share. It is alleged that defendant No. 1 sold a specific Khasra No. 229/1 measuring 0-3-16 bighas in favour of defendants No. 2 & 3 for a consideration of Rs. 4,000/- on the basis of which Mutation No. 205 was accepted and attested on 25.3.1983. Plaintiffs alleged that since the parties were in joint-possession of the suit land, thus a specific Khasra number could not have been sold. Since the fact of sale deed and the mutation were kept secret, when came to the notice, the record was verified and suit was filed. It is alleged that the mutation being wrong and illegal, thus, not binding on the rights of the plaintiffs. Therefore, prayed for declaration to the effect that the suit land is owned and possessed jointly by the plaintiffs with defendant No. 1 to the extent mentioned above and the relief of injunction was also prayed for.

The defendants offered a strong resistance to the suit. According to defendant No. 1, he was having 1/7th share in Khasra No. 229 measuring 0-5-15 Bighas which comes to 0-0-16 Bigha, which was sold to defendants No. 2 and 3 on their request for the construction of a Khokha, pursuant to the sale deed, however, no possession of the suit Khasra was delivered to them and there was a Will qua the share of a specific Khasra number. He admitted that defendants No. 2 and 3 are trying to take for forcible possession of entire Khasra number.

Defendants No. 2 and 3 in their reply questioned the locus-standi of the plaintiffs to file the suit and also took-up the preliminary objections of the maintainability of the suit. According to them, the suit land was in exclusive possession of defendant No. 1. They are bonafide purchasers and owners in possession of the suit land. According to them, defendant No. 1seized to be the joint owner of the suit land after its sale. Thus prayed for dismissal of suit.

Plaintiffs filed the replication in which the stand against their interest was denied and reiterated the even paras on merits.

On the pleadings of the parties, learned trial Court framed the following issues:-

"1. Whether the plaintiffs are entitled to the relief of declaration as prayed for? ...OPP.

Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed for ?..OPP.

Whether the suit of the plaintiff is not maintainable in the present form, as alleged? ...OPD.

Whether the suit is barred by limitation as alleged? ...OPD.

Whether the plaintiffs have no cause of action to file the present suit as alleged? ... OPD.

Whether the plaintiffs have no locus standi to file the present suit? ...OPD.

Relief.

It was an admitted case of the parties that the plaintiffs and defendants No. 1 are the successors of Devi Ram, who was the owner in possession of the suit land and that defendant No. 1 is having 1/7th share in the said land. The plaintiffs allege that defendant No. 1 had sold the suit Khasra without their consent and knowledge more than his share, in favour of defendants No. 2 and 3 despite the fact that it was in their joint ownership and possession and this fact was only made known to them on 15.5.2003 when the defendants had tried to take forcible possession of the suit land which was resisted. PW1 denied that defendants No. 2 and 3 had been cultivating the suit Khasra since the year 1987 and further that his wife had effected a compromise on 11.6.2004, rather he confirmed the fact of joint possession of the plaintiffs and defendant No. 1. He also examined PW2 Nant Ram. According to him, suit Khasra has been in the possession of the plaintiffs and denied the possession of defendants No. 2 and 3.

To rebut the aforesaid evidence, defendants No. 2 and 3 placed on record one compromise Ext.DW1/A and examined DW2 Harju. He admitted about the sale deed in their favour and alleged its cultivation by defendants No. 2 and 3. According to him, there was an FIR against plaintiff No. 1 which culminated into compromise Ex.DW1/A, but denied his signatures thereon. He significantly stated that defendant No. 2 had only purchased a share of defendant No. 1 in the suit Khasra, which is situated on the road side. Its possession was delivered to him. DW3 Shankar Dass and DW4 Paras Ram also made similar statements. DW4 aforesaid in cross-examination clearly stated that prior to the aforesaid transaction of sale, defendant Balak Ram alongwith other family members were cultivating the suit land jointly. DW5 Tara Chand also stated about the compromise aforesaid. Defendant No. 1 appeared as DW6. He admitted the sale in favour of defendants No. 2 and 3 and further stated that it was agreed that the vendees would take the possession of the suit land as and when required, but it was not handed over by him to them. He also stated that he had sold his own share in the suit khasra.

On the perusal of the aforesaid evidence, learned trial Court answered issues No. 1, 2, 4 and 6 in negative and other issues in affirmative. Consequently, the suit of the plaintiffs was dismissed, as such the plaintiffs filed an appeal before the learned District Judge. The learned District Judge reappraised the evidence on record. On the completion of the evidence, he rightly came to the conclusion that at the time of registration of the sale deed in favour of defendants No. 2 and 3, suit land was joint inter se the plaintiffs and defendant No. 1. Balak Ram and Balak Ram was not in the exclusive possession of the suit khasra, whereas, the mutation was attested on the basis of sale deed Ext.PW1/A specifically with respect to Khasra No. 229/1 in favour of defendants/vendees. Learned District Judge held that that a co-owner who is not in actual, physical and exclusive possession of the land cannot transfer a valid title of property. The remedy of the transferee, in case the transfer is made, would be to get a share from out of the property to be allotted to that co-sharer in partition or to get a decree for joint possession or claim compensation from the co-sharer, as the case may be.

In fact, a co-owner has interest in the whole property and the possession of the co-owner is a possession of all, even if it is actually possessed by single co-owner on the spot. This fact remained unnoticed by the learned trial Court. The sale deed Ext.PW1/A reveals that defendant No. 1 sold specific khasra number in joint Khata without the consent of other co-owners, whereas defendant/ vendor was not in its exclusive possession, hence the acquisition of the title by defendants No. 2 and 3 is not legal and valid qua the whole suit khasra. The learned District Judge rightly observed that when a specific portion of the land denoted by a particular khasra number is sold by a co-sharer in the joint holding, would be a sale of share out of the joint Khata and the vendee will not be owner of any specific portion in the joint holding.

On the aforesaid observations and findings, learned first Appellate Court, partly set-aside the judgment and decree passed by the learned trial Court rightly, to the effect that the plaintiffs are joint owners of the suit land including the total suit khasra and was granted the permanent injunction restraining the defendants not to raise any construction or change nature of the land till it is finally partitioned.

On examining the contention raised in the present appeal while examining the evidence on record, I did not find misreading of oral or documentary evidence by the first Appellate Court nor the suit is barred by limitation. Therefore, the substantial questions are accordingly answered. In result the appeal fails and is accordingly dismissed. Shri G.R. Palsra, learned counsel for the appellants submits that because of the pendency of the present appeal and the interim order passed by this Court in CMP No. 1000 of 2006 vide order dated 10.3.2008, the partition proceedings pending before the Revenue Court are held up, as the parties had agreed to maintain status-quo qua possession till final disposal of the appeal. Now, since the appeal stands dismissed, the interim orders, as aforesaid stand accordingly vacated. Therefore, now the Revenue Court may revive the partition proceedings and finalise it in accordance with law.