Pritam Singh vs Tara Singh

B.S. Yadav, J.

The facts leading to this appeal are that the present appellants Pritam Singh and Major Singh (who died during the pendency of the appeal in the lower Appellate Court and whose legal representatives have been brought on the record) had filed a suit for possession of 2/3rd share of the land measuring 8 Kanals 10 Marlas situated in village Nathu Khera. According to the allegations in the plaint, the plaintiffs and defendant No. 3 Sikatar Singh alias Ajit Singh, who are brothers inter se, were joint owners of the suit land. Defendant Nos. 1 and 2, who are father and son, are in wrongful possession of the suit land. They (i.e. defendants) were alleging that they had purchased this land from Sikatar Singh. However, Sikatar Singh had no right to sell more than his 1/3rd share in the suit land.

Defendant Nos. 1 and 2 contested the suit and filed joint written statement. According to them, the plaintiff had no share in the suit land. They are in possession of different parcels of land, having purchased the same by two separate sale deeds executed by defendant No. 3 who was its sole owner. They are bona fide purchasers for value without notice of the claim of the plaintiffs. The contesting defendants took certain other pleas also as will be clear from the issues framed in the case.

The plaintiffs filed replication in which they pleaded that they and defendant No. 3 had jointly filed a preemption suit which was decreed on 26th July, 1975 and thus they had 2/3rd share in the land. The defendants were not bona fide purchasers as they knew that the decree in the preemption suit was passed in favour of the three brothers, namely, plaintiffs and defendant No. 3 and that they had equal share in the land in dispute.

Upon the allegation of the parties the learned trial Court framed the following issues :

(1) Whether the plaintiffs are cosharers in the suit land to the extent of 2/3rd share ?

(2) Whether defendant Nos. 1 and 2 purchased the suit land from Sikatar Singh and thus became full owners thereof?

(3) Whether the present suit is bad on account of misjoinder of parties and causes of action?

(3A) Whether defendant Nos. 1 and 2 are bona fide purchasers for value without notice as alleged?

(3B) Whether the plaintiffs are estopped by their mother''s act and conduct to file present suit?

Under issue No. 1 the learned trial Court held that as the plaintiffs had only produced the copy of the decreesheet Exhibit P 1 passed in the preemption suit but had not led any evidence to the effect that they had deposited the preemption money under the decree, therefore, they had not become owners of the suit land. For the above reasons, under issue No. 2 also it was held that Sikatar Singh had also not become owner of the suit land under the preemption decree and, therefore, had no right to the land and, could not give a valid title to the defendants. Under issue No. 3 it was held that suit was not bad for misjoinder of the parties. Under issue No. 3A it was held that defendant Nos. 1 and 2 were not bona fide purchasers for value. Issue No. 3B was also decided against the contesting defendants. As a result of the findings under issue No. 1, the Court dismissed the plaintiffs'' suit.

Feeling aggrieved the plaintiffs filed appeal which was heard by Senior Subodinate Judge (with enhanced Appellate Powers), Gurdaspur. Before him only issue No. 1 was agitated. He confirmed the findings of the learned trial Court under that issue. The plaintiffs have now come to this Court in appeal.

Learned counsel for the appellants argued that both the Courts below have not considered the pleadings of the parties and the evidence led in the case in the right perspective. The said argument has force. The plaintiffs produced on the file Exhibit P. 1, which is copy of the decreesheet dated 26th July, 1965 by which suit for preemption filed by them and defendant No. 3 was decreed in respect of 8 Kanals 14 Marlas of land comprised in Rectangle No. 4, Killa Nos. 9, 11 and 12. At that time all the plaintiffs of the suit were minors and it had been filed by their mother, Bawi, as their next friend. She had appeared in the witness box as P.W. 1 and during crossexamination she stated that preemption suit which had been filed by her as next friend of her minor sons i.e. plaintiffs and defendant No. 3, had been decreed and she had deposited the preemption money under the decree. Tara Singh defendant No. 1 has also stated that at the time of the sale he had seen the copy of the decreesheet passed in the preemption suit. In fact, whole case of the contesting defendants is based upon the plea that Sikatar Singh had become owner of the suit land under the decree obtained in the above preemption suit. Sikatar Singh could become owner only if the preemption amount had been deposited under the decree. In the sale deed Exhibit D. 2 executed by Sikatar Singh in favour of defendant No. 2 Hansa Singh there is a mention that the vendor had become owner of the land sold under the preemption decree. Thus in the light of the pleadings and the evidence led in the case, I fail to understand how the learned Courts below have held that preemption money had not been deposited under the decree and, therefore, the plaintiffs and Sikatar Singh had not become owners of the suit land. Merely because the plaintiffs did not produce the receipt about the deposit of the preemption money under the decree, the pleading and other evidence could not have been overlooked. I need not dwell on this point because the learned counsel for the respondents was unable to support the findings of the learned Courts below rendered under issue No. 1. It is, therefore, held that the plaintiffs were owners of the suit land to the extent of 2/3rd share. The finding of the Courts below under that issue are upset accordingly.

The learned counsel for the respondents argued that during the pendency of the appeal in the lower Appellate Court, Major Singh had died and his mother Bawi had been brought on the record. He argued that Bawi had attested the sale deed Exhibit D. 2, therefore, Section 43 of the Transfer of Property Act is applicable to the present case and suit is liable to be dismissed qua the share of the deceased plaintiff. I am of the opinion that no relief can be granted to the defendants in this suit. Bawi has been brought on the record only as legal representative of the deceasedplaintiff Major Singh. She is not fighting the litigation in her own rights. If the defendants are deprived of the land, then they may have a remedy against her in her personal capacity to the extent of her share in the suit land. In that case, Bawi will have a right to defend the suit on the pleas open to her. Therefore, I decline this prayer of the learned counsel for the respondents.

The learned counsel for the respondents next argued that the plaintiffs are not entitled to a decree for joint possession of the suit land. According to him, the defendants have obtained decree for possession of the land comprised in Rectangle No. 4, Killa Nos. 9, 11 and 12 and the area of those Killas is 8 Kanals 14 Marlas vide Jamabandi Exhibit P. 2 while the defendants have purchased only 8 Kanals 10 Marlas. He further argued that a cosharer in possession of the joint land is entitled to sell that land and the vendee/vendees will acquire a valid title thereto subject to the rights of other cosharers at the time of partition. He, therefore, submitted that the plaintiffs are only entitled to a decree for declaration. In support of his contention he has cited Sukh Dev v. Parsi, plaintiff and others, AIR 1940 Lahore 473, wherein it was remarked :

``As a result, it has been held that a cosharer who is in such possession of any portion of a joint khata, can transfer that portion subject to the adjustment of the rights of the other cosharers therein at the time of partition (see Saad Ullah v. Ibrahim, AIR 1925 Lah. 518, Harnam Singh v. Jagat Singh, AIR 1929 Lah. 168 and Sripat Singh v. Mata Badal, AIR 1939 Oudh 243). This view seems to be consistent with the principle embodied in S. 44 T.P. Act, regarding transfers of their `interest'' in joint property by cosharers. To learned counsel for the respondent urged that the defendants in these cases were not in possession for a very long time. It appeals, however, that they were in possession for some years at least before the sales and there seems to be no good ground for holding that they could not transfer the plots unless their possession extended to 12 years or more as suggested by the learned counsel. The defendants did not claim to have acquired any adverse title. All that they claimed was that they were entitled to remain in undisturbed possession till partition. They were certainly in possession for some years before the sale as stated above and the learned counsel for the respondent has not been able to show that the other cosharers had any right to disturb their possession until partition.

In the circumstances stated above, the decree for joint possession granted by the learned Judge in Chambers does not seem to be justifiable. The plaintiff''s rights will be sufficiently safeguarded if he is granted a decree in form in which it was granted by this Court in a similar case in C.A. 1771 of 1921, viz., by giving him 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 appeals are accordingly accepted, and in lieu of the decrees for joint possession the plaintiff is granted declaratory decree as above.''''

The above ruling was followed in Tek Singh v. Jaswant Singh etc., 1972 CurLJ 20. I think that the plaintiffs rights can be safe guarded if they are granted a decree for declaration instead of for joint possession.

For the foregoing reasons I accept the present appeal and set aside the judgments and decree of the learned Courts below and grant a decree in favour of the plaintiffs and against defendant Nos. 1 and 2 for a declaration that the plaintiffs have 2/3rd share in the suit land that the possession of defendant Nos. 1 and 2 over it will be that of cosharers subject to adjustment at the time of partition. In the circumstances of the present case the parties are left to bear their own costs throughout.