Megh Singh vs Hoshiar Singh

B.S. Yadav, J.

The facts to this second appeal are that Khasra No. 255/151 measuring 21 Bighas, in addition to other land, was owned by two parties :

(1) Gopal Singh and Jagan Nath, defendant Nos. 1 and 2 respectively.

(2) Megh Singh (defendant No. 3), Sugan Singh (defendant No. 4), Dhan Singh (defendant No. 5) and Summer Singh (father of Bhanwar Singh, defendant No. 6).

Vide Jamabandi Exhibit P 2 for the years 195354 the above Khasra number was in possession of Gopal Singh Jagan Nath as cosharers. Vide sale deed Exhibit P. 2/1 dated 8th May, 1957 Gopal Singh and Jagan Nath sold 14 Bighas 16 Biswas out of that Khasra number of Tara Chand plaintiff (who died during the pendency of the suit and whose legal representatives were brought on the record) and possession was delivered to him of that land. Vide Jamabandi Exhibit P. 4 for the year 195758 out of that Khasra number, Khasra No. 369/255 measuring 14 Bighas 16 Biswas was carved out. As the sale was by co sharers, its effect was to be given in the cultivation column. However, in that column, Tara Chand''s possession was recorded as a tenantat will under Gopal Singh. Mutation No. 243 Exhibit P. 9 was also attested on 24th November, 1962 in respect of this sale. According to this mutation, Khasra No. 255/151/2 measuring 14 Bighas 16 Biswas was carved out in lieu of Khasra No. 369/255. In the cultivation column, Jagan Nath and Gopal Singh were recorded as vendors while Tara Chand is recorded as vendee. However, by mistake the entries is the mutation were not given effect to in the Jamabandis. As appears from the Khasra Girdwar is Exhibits P. 5, P.6 and P.7 Tara Chand remained in possession of Khasra No. 369/255. In 1965 Party No. 2 applied for partition of the joint Khata measuring 254 Bighas 11 Biswas. That area included Khasra No. 369/255. Out of Khasra No. 369/255 an area of 8 Bighas 14 Biswas was deducted and was allotted to Megh Singh and others. Tara Chand, who was not made party to the partition proceedings as his name had not appeared in the revenue papers, had raised objection about allotment of 8 Bighas 14 Bigwas out of Khasra No. 369/255 to Megh Singh and others but that objection was overruled as it was found that his vendors had already soled the remaining area of their share. The partition proceedings were completed somewhere in 1966. On the basis of Sanad partition, mutation No. 285, Exhibit P. 16 (which was tendered in the lower Appellate Court) was sanctioned on 20th April, 1966. Khasra No. 369/255/1 measuring 8 Bighas 14 Biswas, in addition to other Khasra numbers, was allowed to Megh Singh and others. Similarly in addition to other Khasra numbers, Khasra No. 369/255/2 was allotted to Jagan Nath and Gopal Singh, vendors of the plaintiff. It appears that after the partition proceedings were completed, Tara Chand was dispossessed of Khasra No. 369/25/1 and its possession was delivered to Megh Singh and others on 25th May, 1966. Tara Chand filed the present suit on 1st August, 1968 for possession of Khasra No. 369/255/1 and symbolical possession of Khasra No. 369/255/2. He also prayed for a declaration that the order of the Assistant Collector 1st Grade dated 3rd August, 1965 (by which the partition of the joint Khata was sanctioned) and mutation No. 285, which was attested on 20th April, 1966 was illegal and void and not binding upon his rights as he was not made a party to the partition proceedings.

Except defendants Gopal Singh and Jagan Nath, the remaining defendants contested the suit. According to them, defendants Nos. 1 and 2 had already sold more than their share in the joint Khata. These defendants also took up some other pleas as will be clear from the following issues framed by the learned trial Court :

(1) Whether the plaintiffs are the owners of the suit land ?

(2) Whether the order of partition passed by the A.C.I.G, Bhiwani, is wrong and illegal ?

(3) Whether the plaintiff''s father was illegally dispossessed in the partition proceedings by the defendants ?

(4) Whether the suit is within time ?

(5) Relief.

Under issue No. 1 it was held that the plaintiff was the owner of the land comprised in Khasra No. 369/255/2 measuring 6 Bighas 2 Biswas as out of the land possessed by Tara Chand, the above land was allotted to his vendors Gopal Singh and Jagan Nath. Under issue Nos. 2 and 3 it was held that the partition effected by the Assistant Collector 1st Grade was perfectly valid and Tara Chand was rightly dispossessed of Khasra No. 369/255/1 in those proceedings. Under issue No. 4 it was held that the suit was within limitation. As a result of the above findings, the plaintiff''s suit with respect to Khasra No. 369/255/2 was decreed and with respect to the remaining land it was dismissed. Feeling aggrieved, legal representatives of Tara Chand filed as appeal which was heared by learned Senior Subordinate Judge (with Enhanced Appellant Powers), Bhiwani. After calculating the various alienations of land effected by the vendors of Tara Chand plaintiff, the Court held that on 18th May, 1957, on which date they had executed the sale deed in his (i.e. Tara Charles'') favour, they had still 15 Bighas 3 Biswas in the joint Khata and that land could be validly transferred to him. He further held that it was the fault of Revenue Department that the entries in the revenue papers were not incorporated after the mutation was sanctioned in favour of Tara Chand on 24th November, 1962. Accordingly, he confirmed the decree of the learned trial Court about the grant of symbolical possession in respect of 6 Bighas 2 Biswas of land comprised in Khasra No. 369/255/2 and also passed a decree for actual possession of 8 Bighas 1 Biswas of land comprised in Khasra No. 369/255/1. He dismissed the suit of the plaintiff regarding 13 Biswas of land comprised in the latter Khasra number. The contesting defendants have come to this Court in appeal.

I am of the opinion that both the learned Courts below have fallen into error while deciding the suit. The learned trial Court after calculating the area alienated by Jagan Nath and Gopal Singh, vendors of Tara Chand came to the opinion that they had been left only with an area measuring 6 Bighas 2 Biswas in the joint Khata. On that ground the Court had decreed the suit of the plaintiff with respect to Khasra No. 369/255/2 measuring 6 Bighas 2 Biswas and it dismissed the suit with respect to the remaining land. As noticed earlier, the learned lower Appellate Court came to the opinion that the said vendors were left with 14 Bighwas 3 Biswas in the joint Khata. He accordingly, partly accepted the appeal and granted a decree for an additional area of 8 Bighas 1 Biswas comprised in Khasra No. 369/255/1. In the present case there was no necessity to find out if at the time the sale was effected in favour of the plaintiff, the said vendors had been left with any saleable interest in the joint Khata or not. The question is that what were the rights of Tara Chand when he purchased the land from those persons out of the joint Khata.

Of course, it is an admitted fact that Gopal Singh and Jagan Nath were in exclusive possession as cosharers over 14 Bighas 16Biswas which they had transferred to Tara Chand. The possession was also delivered to the vendee. The question to be determined is that what are the rights of a vendee who purchases land from a cosharer out of the joint Khata. The rights of such vendees had been laid down in Sukhdev v. Parsi Plaintiff and others, AIR 1940 Lahore 473. In that case some cosharers were in possession of two Khasra numbers and they sold them to two persons and delivered possession thereof. The plaintiff who had 1/5th share in those Khasra numbers sued for possession of his share out of those Khasra numbers on the ground that the vendors were only cosharers in those Khasra numbers and, therefore, they had no right to transfer the entire Khasra number as they did. The defence was that as the vendors were in exclusive possession of those Khasra numbers and as their possession could not be disturbed until partition, the transferees also acquired the same rights and possession of the transferees could not be disturbed till partition. The trial Court rejected the plea and the plaintiff was given decree for joint possession. The defendants appealed and the Senior Subordinate Judge upheld their plea and dismissed his suits. On second appeal, the Single Judge in Chambers restored the decree of the trial Court. Against that decision Letters Patent Appeal, was filed. It was held :

"If the defendants merely transferred the plots subject to the rights of the other cosharers and subject to adjustment at the time of partition, it is difficult to see how the rights of the other cosharers can be prejudiced in any way. It was well settled that if a cosharer is in established possession of any portion of an undivided holding, not exceeding his own share, he cannot be disturbed in his possession until partition (see Karam Chand v. Karam Dad Khan,) AIR 1938 Lah. 465 and the other rulings cited therein).

As a result, it has been held that a cosherer who is in such possession of any portion of a joint Khata, can transfer that portion subject to adjustment of the rights of the othercosharers therein at the time of partition (See Saad Ullah v. Ibrahim,) AIR 1925 Lahore 518 : Harnam Singh v. Jagat Singh, AIR 1929 Lah. 168 and Sripal Singh v. Mata Badal, AIR 1939 Oudh 243). This view seems to be consistent with the principle embodied in Section 44, T.P. Act, regarding transfer of their ''interest'' in joint property by cosharers."

The appeal was accordingly accepted and in lieu of the decree for joint possession, the plaintiff was granted a decree for a declaration that the possession of the defendants in the land in dispute will be that of cosharers subject to adjustment at the time of partition.

The above view was followed by this Court in Tek Chand v. Jaswant Singh etc., 1972 Current Law Journal 20, wherein it was remarked :

"The right is subject to the rights of other cosharers on partition and it would remain subject thereto even after the transfer. This is the view of the law which was taken by Radha Krishna, J. in Sripal Singh and others v. Mata Badal and others, AIR 1939 Oudh 243, by Tek Chand and Bhide JJ., in Sukh Dev v. Parsi, AIR 1940 Lahore 473 had by Chopra J., in Chanan Singh v. Santa Singh, 1950) 5 D.L.R. 8 and is, in my opinion, if I may say so with all respect, the correct view."

Applying the above principle to the present case, Tara Chand was entitled to remain in possession of the land purchased by him from Jagan Nath and Gopal Singh only till partition. In partition, out of the land sold to him, 8 Bighas 14 Biswas comprised in Khasra No. 369/255/1 did not fall to the share of his vendors and on the other hand that area fell to the share of the other cosharers. When partition was being effected, Gopal Singh and Jagan Nath or their vendee had no right to insist that those 8 Bighas 14 Biswas should not be taken from their share and should not be allotted to other cosharers. It is not the case of the plaintiff that at the time of partition less area was allotted to his vendors Gopal Singh and Jagan Nath. Therefore, I have not been able to understand how the plaintiff can seek his remedy with respect to 8 Bighas 14 Biswas against the other cosharers to whom that land was allotted in partition. The remedy to the plaintiff is only against Jagan Nath and Gopal Singh.

The learned counsel for the plaintiffrespondents argued that Gopal Singh, one of the vendors, had sold 7 Bighas 7 Biswas to one Jug Ram on 24th May, 1961 that is after the sale in favour of Tara Chand and in partition proceedings sale effected in favour of Jug Ram ought to have been taken as having been effected by Gopal Singh beyond his share. Jug Ram has not been made a party to the present suit. Moreover, in the present case the mode of partition cannot be challenged. This Court is not entitled to say that the Revenue Authorities should allot a particular land to a particular cosharer. Tara Chand was entitled to retain possession over the land sold to him only till partition. If that land fell to the share of other cosharers, the plaintiff cannot follow the land in the hands of the other cosharers.

The plaintiff has challenged the partition proceedings only on the ground that he was not made a party to those proceedings. As noticed earlier, the plaintiff slept over his rights. Even after the mutation was sanctioned in his favour, he did not make any attempt to see whether it was incorporated in the revenue papers. He had appeared before the revenue officer and had objected to the allotment of 8 Bighas 14 Biswas out of the land purchased by him to the cosharers other than his vendors. His objection was overruled on 8th January, 1966 vide order, copy Exhibit P. 13. Thereafter he was dispossessed from that area measuring 8 Bighas 14 Biswas. Even after possession was taken from him, he kept quiet and filed the present suit on 1st August, 1968. As is clear from para No. 8 of the plaint, Bahadur Singh, defendant No. 9 purchased Khasra No. 369/255/1 on 19th August, 1966. The said defendant is clearly a bona fide transferee. Hence it is not in the ends of justice that after such a period, the partition proceedings should be reopened. As noticed earlier, Tara Chand could have had his remedy against Jagan Nath and Gopal Singh. He has not claimed any relief against those defendants.

In the light of the above observations. I partly accept the present appeal and set aside the decree passed by the learned lower Appellate Court with respect to the land measuring 8 Bighas I Biswas comprised in Khasra No. 369/255/1 and dismiss the suit of the plaintiff with respect to that land. In the circumstances of this case, the parties are left to bear their own costs.

Appeal partly accepted.