Jaswant Singh and ors. vs Hans Raj

G.C. Mittal, J. (Oral)

The dispute in this second appeal relates to 11/2 Biswas of land within the Abadi of village Talwandi Kalan. Undisputeably this piece of land and another 17 Biswas lying outside the Abadi of that village was owned by Lachhman Singh and on his death it came to his five sons and five daughters by succession. Daughters were married in other villages and three of the sons were out of the village and only Jeet Singh and Rur Singh, the other two sons, were in the village and were in occupation of 11/2 Biswas, the site in dispute. By registered sale deed dated 1411974, they sold the entire 11/2 Biswas, the land in dispute to Hans Raj and delivered. possession to him. Thereafter, on 2271974, another son and three daughters of Lachhman Singh sold one Biswa out of the aforesaid land to Amar Singh by a registered document. Amar Singh had land on the northern and Western side of the site in dispute. Hans Raj filed a suit against Amar Singh for permanent injunction to restrain him from encroaching on 11/2 Biswas of land which he had purchased, the plea that he was in possession as owner thereof, by virtue of the sale deed mentioned above Amar Singh contested the suit and on the basis of the sale deed in his favour from other four cosharers pleaded ownership and possession of one Biswa out of the land in dispute.

On behalf of the plaintiff, evidence was sought to be led that between five sons and five daughters of Lachhman Singh, there was partition and in that partition, 11/2 Biswas, the land in dispute, fell to the share of the vendors of the plaintiff and the remaining land which was outside the Abadi, fell to the share of other cosharers but both the Courts below did not accept the same. The resultant effect should have been that all the ten children of Lachhman Singh became cosharers on his death in the land in dispute and 17 Biswas of land lying outside the Abadi and such a declaration should have been given and at the same time the possession of the plaintiff on the land in dispute could be protected as a cosharer by granting a decree of injunction subject to the partition between the cosharers. Instead of doing this, both the Courts below held that in total land, i.e 17 Biswas, 11/2 Biswas, the vendors of the plaintiff had at least 11/2 Biswas and the sale of the land in dispute by them to the plaintiff was not beyond their share and declared the plaintiff to be exclusive owner of the land in dispute and decreed the suit on this basis.

Defendant had died before (sic) the lower appellate Court and his legal representatives, who were brought on record there, have come to this. Court in second appeal.

Since the respondent''s counsel died, actual date notice was issued to the respondent, but he has not appeared. Accordingly, I proceed to decide the appeal exparte. Once it is found that 11/2 Biswas, the land in dispute, jointly belonged to the ten children of Lachhman Singh, each, one of them would be cosharer in it. No cosharer can arrogate to himself exclusive ownership of any part of land except by mutual partition between the parties or through Court. Even if a cosharer is in exclusive possession of joint land, he can sell only his share. Delivery of exclusive possession at the time of sale would only mean that possession is given as a cosharer and not as an exclusive owner. In this behalf, reference may be made to a Full Bench decision of this Court in Bhartu v. Ram Sarup, 1981, PLJ 204. Merely because the sale is within the share of the two vendors to the plaintiff would not mean that two cosharers could divest other cosharers of their share in the land in dispute. It is possible that value of the land in the village Abadi is much more than the value of the land which is outside the Abadi. This matter has to be determined in partition proceedings and not in a suit like the one in hand

For the reasons recorded above, it is held that Hans Raj is successorininterest of the two co sharers out of ten and Amar Singh now through his legal representatives is successorininterest of four cosharers therein and the exclusive possession of Hans Raj thereon would be his own behalf as also of the other cosharers and the other cosharers would not be entitled to disturb his possession except on mutual partition between the parties or through partition from a Court of competent jurisdiction. Till then the land in dispute would belong to the cosharers subject to right of partition. The suit is decreed in the aforesaid terms and the judgments and decrees of the two Courts below are modified accordingly with no order as to costs.