Krishna Devi vs Surinder Kumar

Dev Darshan Sud, J.—Plaintiff Ishwar Dass son of Roda has instituted a suit for the following reliefs:

(A) Suit for a decree of Possession of-

(i) The land comprised in Khata No. 130 min, Khatauni No. 365 min, Khasra Nos. 873, 874, 886, 887,896,897,919/1, 925, 929 and 931 Kita 10 measuring 0-44-88 hectares and Khasra No. 898 measuring 0-06-84 hectares to the extent of 431/684 shares, measuring 0-04-31 hectares total area 0-49-19 hectares.

(ii) Land comprised in Khata No. 130 min, Khatauni No. 365 min, Khasra Nos. 694 and 695 kita 2 area measuring 0-39-33 hectares (per jamabandi for the year 1980-81).

(iii) Land comprised in Khata No. 130 min, Khatauni No. 365 min, Khasra No. 881, area measuring 0-02-48 hectares as per jamabandi for the year 1980-81.

(iv) Land comprised in Khata No. 114 min, Khatauni No. 357, 358, 359 Khasra Nos. 934, 935, 932, 933, kita 4 area measuring 0-33-28 hectares.

(v) Land comprised in Khata No. 110 min, Khatauni No. 355 min, khasra No. 898 area measuring 0-06-84 hectares to the extent of 253/684 shares working out to 0-02-53 hectares and khasra No. 916 min, to the extent of 0-00-35 hectares, total area measuring 0�02-88 hectares. All situate in Mahal Baghani, Mauza Sidhbari, Tehsil (now Dhaarmsala) District Kangra, (H.P.). (B) Suit for declaration that the Plaintiff is in possession of the house marked ABCDEF and one ghural (cow-shed) MNOP both double storey and more specifically shown in the annexed site-plan, together with the base land and agwara and pichhwara etc. situate in Mahal Baghani, Mauza Sidhbari, Tehsil Dharamhsala District Kangra and that the Plaintiff has inherited by succession the entire moveable and immovable property of Sh. Roda, his father, and the Defendant No. 1, has no right, title or interest on the basis of the WILL dated 4.6.1981, if got executed by Defendant No. 1 from Sh Roda, the father of the Plaintiff which WILL is the result of fraud, undue influence, mis-representation, and also that the said WILL being opposed to the customary law of Kangra District in the matter of inheritance and succession of agriculturists, or if this customary law is not proved then, the property being coparcenary qua the Plaintiff and his predecessor-in-interest, Sh. Roda, is not being on the Plaintiff and thus is a mere waste paper and no right, title or interest passed in favour of the Defendant No. 1 on the basis of the said WILL, with a consequential relief of permanent injunction restraining the Defendant No. 1 from claiming any right, title or interest in the said house and other property of the father of the Plaintiff.

During the pendency of the appeal, the Plaintiff died

The specific pleading is that 1/4th of the land was inherited by Roda as succession from his father and 1/4th land was inherited by him as succession from his brother Bhonu Ram, who died issueless and did not have any heir to inherit his estate. The genealogical table is reproduced herein-under:

Phitha 1 Roda Bhonu 1 1 Ishwar Dass Issueless.

The Plaintiff further alleges that the parties are governed by agricultural custom etc. and that the ''Will'' executed by his late father is the result of fraud, misrepresentation and the sale deed could not have been executed as the land was ancestral property.

The suit was resisted by the Defendants on a number of grounds. On the pleadings, the learned trial Court settled thirteen issues. For the purposes of the present appeal, it is only issue No. 8 which would be relevant as learned Counsel appearing for the Plaintiff has argued strenuously that Roda constituted a joint Hindu family coparcenary with Ishwar Dass and as such, in so far as the estate of Roda represented by his share inherited from the father was joint between the parties and in that eventuality, he had 1/4th interest in this entire undivided share.

The appeal was admitted on 16.7.1999 on the following questions of law:

Whether the property inherited by Sh. Bohnu and Roda in equal shares from Fitu vide Ext. P1 and which on the death of Bohnu was inherited by Roda vide Ext. P30 ceased to be ancestral property and could be willed and transferred by Roda father of the Plaintiff?.

2 Whether the Plaintiff who has been held to be coparener and owner of 1/4th share in the suit property alongwith Roda was entitled to a decree for declaration and injunction particularly in respect of the house and charal (cow shed) of which he was in possession?.

Whether the will executed by Roda Ext.DW1/A which was shrouded by suspicious circumstances which had not been explained was the result of fraud and mis-representation and contrary to the Kangra Customary law and Hindu Law could not be relied and confer no title on Defendant No. 1.?.

Whether the pleadings of the parties have been misconstrued and it has been wrongly held that the suit of the Plaintiff qua 1/4th share of the property could not be succeeded in the absence of challenge to 1/4th share and the Plaintiff was not entitled even the lesser relief in the facts and circumstances of the case?.

On the evidence on record on the two issues, issues No. 8 and 9, namely, whether the Plaintiff and Roda deceased were coparceners and the land in dispute is coparcenary property and whether the property in suit is ancestral qua the Plaintiff and Roda deceased, the learned trial Court holds that these issues were central to the decision of the suit and that the question as to whether the property was ancestral in the hands of Roda would itself determine the entire controversy. The Court accepts that Phitha was the common ancestral who had two sons namely, Roda and Bhonu. Bhonu died issueless. He did not have any heir. Roda had one son Ishwar Dass. The learned trial Court holds:

15 In the instant case, of the 1/2 share detailed in Khata No. 130 as per jamabandi 1980-81, 1/4 was inherited by the aforesaid Roda from his brother Bhonu vide mutation No. 394, dated 26.8.49, Ex. P30 as the latter, died issueless and intestate. This inheritance of 1/4 share of Bhonu by the deceased Roda can not be a ancestral property in his hands qua the Plaintiff and the Plaintiff did not get any birth right in the property detailed in khata No. 130 of jamabandi 1980-81, Ex.P7. Only 1/4 share which the deceased Roda inherited from his father, Phitha vide mutation No. 115, dated 21.11.1926, Ex.P31, can be said to be ancestral in his hands qua the Plaintiff, and Plaintiff and the deceased each having 1/8 share in the suit property enlisted in khata No. 130 of jamabandi 1980-81, Ex.P7.

Then there is nothing on the file that the deceased Roda had thrown 1/4 share which he had inherited from Bhonu, into common stock and the Plaintiff was in fact using and utilizing that property also. The share of Bhonu was neither ancestral nor the coparcenary property in the hands of deceased Roda qua the Plaintiff. Rather it was his personal property. Accordingly issue Nos. 8 and 9 are decided partly in positive to the effect that the deceased Roda and the Plaintiff were the coparceners to each other and the property was ancestral in the hands of Roda to the extent of 1/4 share in Khata No. 130 of jamabandi 1980-81, Ex.P7. While second part of issue No. 8 is decided completely in negative that the remaining 1/4 share was neither ancestral nor the coparcenary property in the hands of Roda qua the Plaintiff.

The upshot of this discussion is that it is established on the record that coparcenary consisting of Roda and his son Ishwar Dass existed. This finding has been affirmed by the learned appellate Court which has otherwise rejected the appeal. The other submission made on behalf of the Appellant-Plaintiff that the Will is not valid as also that the sale deeds had been executed without legal necessity as the land constituted ancestral property in the hands of Roda were rejected.

These findings on fact, having not been disturbed by the learned appellate Court and it would but be obvious that the Plaintiff Ishwar Dass and thereafter his successor would be entitled to 1/4th share in the entire undivided estate as the finding with respect to coparcenary property has remained undisturbed. There is nothing on the record to establish or suggest that the estate has, in fact, been partitioned between the parties.

Learned Counsel appearing for the Plaintiff-Appellant relies upon the decision of the Punjab High Court in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, , holding:

78 The weight of the authorities and the principles which have been discussed above, give rise to the following propositions-

(1) A co-owner has an interest in the whole property and also in every parcel of it.

(2) Possession of the joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.

(5) Passage of time does not extinguish the right of the co�owner who has been out of possession of the joint property except in the event of ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.

(7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition.

(8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.

(9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered.

This is a case which attracts the application of proposition No. 4. From what has been stated above, the question referred by the learned Single Judge will be answered as follows:

If, in spite of protests by one co-owner, another co-owner raises a building on a portion of joint land, not exceeding his own share therein, the aggrieved co-owner cannot obtain a decree for demolition of that building without proving special damage or substantial injury to him unless the other co-owner who has raised the building has done so by asserting an exclusive title in himself and by denying that of the other co-owners. (PP.539 and 540)

There is no dispute with this proposition of law that is to say that a co-owner has interest in every inch of the property which is joint. Such interest would remain in the property till it is partitioned by metes and bounds.

In these circumstances, looking to the findings and purely as a question of law, I hold that the learned trial Court after holding that Roda and Plaintiff-Ishwar Dass constituted a coparcenary, could not have denied the relief of joint possession of 1/4th to the Appellant of the estate of Roda which was ancestral in his hands. This appeal is accordingly allowed to that extent.

An objection has been taken by the learned Counsel appearing for the Respondents that the trial Court having dismissed the suit of the Plaintiff which was affirmed in appeal and that the findings of fact having been affirmed, it is not open to this Court to examine them in second appeal where the power of this Court is restricted, cribbed and confined to the decision on point(s) of law. While granting relief to the Plaintiff-Appellant, I have not touched on the findings of fact rather they have been reiterated and what has been granted to the Plaintiff is but a natural consequence of the law as applicable. Submission made on behalf of Respondents, therefore, rejected. This appeal is accordingly allowed to the extent as indicated above. It will be open to the parties to have their shares defined by instituting appropriate partition proceedings.

Question of law No. 4 is answered accordingly that the Appellant is entitled to the lesser relief as claimed for more especially as it flows from the law applicable on the established facts. On the other three questions I hold that the questions of fact affirmed by two courts below and do not require any interference. This appeal is accordingly allowed to the extent as indicated above There shall be no order as to costs.