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1966 DIGILAW 265 (RAJ)

Nartya Gopal v. Gopal

1966-12-17

GAJENDRA SINGH

body1966
These are two revision petitions Nos. 12 and 13 filed by Nartyagopal in the nature of cross revision petitions against the common order of the Revenue Appellate Authority, Kota dated 21.6.1965. Since they both raised a common point of law, they were consolidated and the single order disposes of both these revision petitions. Briefly the facts are that Gopal and Raman were the brothers, Raman being minor and co-tenants of the suit land. Their names stood recorded as co-tenants of the suit land, of smt. 2019. In the previous Jamabandi from Smt. 2012 to Smt. 2015 they were shown as biswedars and the land was in possession of the tenants. Gopal, the elder brother sold the suit land by a registered sale-deed to one Nartya Gopal one of the petitioners and alleged that he was put into possession of the holding in question. This registered sale-deed was executed on 26-8-1963. Thereafter Raman the minor brother dis-agreed with this transfer and filed a suit for permanent injunction restraining Nartya Gopal from interfering with the possession of his holding and also pleaded by way of ancillary relief to cancellation of sale-deed. The suit was filed through her mother and next friend citing Gopal as the proforma respondent. To meet this suit Nartya Gopal also filed a separate suit on 26-3-1965 for permanent injunction restraining Gopal and Raman from interfering with his possession as a vendor for valuable consideration under a registered sale-deed. Both the parties prayed for grant of temporary injunction. Both the subordinate Courts refused temporary injunction in favour of Nartya Gopal, but granted one in favour of Raman, hence this revision. The counsel for the petitioner Nartya Gopal raised 3 contentions, firstly that Gopal being a karta of the family having sold the suit land and the vendee was put in possession through a registered sale deed, the trial Court ignored his possession on a mere affidavit filed by Gopal vendor that no possession was given. The second contention was that the sale should be regarded in favour of Nartya Gopal vendee to the extent of Gopals share in the joint property and the only remedy that Raman could seek was a suit for partition and not for injunction. The second contention was that the sale should be regarded in favour of Nartya Gopal vendee to the extent of Gopals share in the joint property and the only remedy that Raman could seek was a suit for partition and not for injunction. Thirdly, the counsel for Narty Gopal contended that when the sale was made the respondent Gopal and Raman ceased to be biswedars of the land by virtue of the Biswedari Abolition Act which came into force on 15-11-1959 in Smt. 2016 and their rights were extinguished and as the land was not in their khudkasht they could not sell any land. He was already a tenant of the suit land. The counsel for the respondents reply with regard to the third contention was that according to the Jamabandi of 2016 behind which this Court cannot go, they were clearly recorded as the khatedar of the land and hence they could maintain the suit according to the evidence on record. There is substance in the reply given by the counsel for the respondent Raman. The record of Smt. 2016 stands clearly in favour of Gopal and Raman as joint tenants of the holding in dispute. Although it is not clear as to how the previous Jamabandi was completely changed. Merely an entry of Ghatnabahi shown before me which only refers to putting the biswedars into possession by the Tehsildar. The order of the Tehsildar appears to be of a doubtful value, but I accept that it would be improper to go beyond the entry of the jamabandi of Smt. 2016 in which the title of co-tenants of Raman and Gopal stand clearly verified. It thus gives Gopal a power to alienate land to what extent will have to be seen. Consequently the two contentions raised by the counsel for Nartya Gopal that he was put into possession by Gopal through registered sale-deed and his subsequent affidavit to the contrary is of no consequence and that he should be regarded into possession to the extent of Gopals share in the property and and Raman should be non-suited. The counsel for the respondent however could not give a satisfactory reply on this point. The counsel for the respondent however could not give a satisfactory reply on this point. He only stated that Gopals sale was not recognised as the property was joint and he also drew my attention to the ruling of A.I.R. 1965 Supreme Court page 553 of Mishrilal Parasmal vs. H.P. Sadasivan and others in which their Lordships of the Supreme Court held that the power of revision by the High Court under the Mysore House Rent and Accommodation Control Act. 1951 were exactly the same as those conferred on it by sec. 115 of the Code of Civil Procedure and no more. The Court has power to decide question whether the subordinate Court had jurisdiction to deal with the matter before it or acted without jurisdiction. The errors of fact and law in exercising the jurisdiction cannot be questioned in the Court of revision. I have considered the arguments advanced with regard to the second and third contention raised by the counsel for Nartya Gopal. As far as the ruling of the Supreme Court is concerned as cited by the counsel for the respondent Raman states clearly that the Court no doubt has power both under sec. 230 of the Rajas-than Tenancy Act as well as u/s 115 of the Code of Civil Procedure to examine whether the subordinate Court have acted in exercise of the jurisdiction illegally or with material irregularity. The provisions in both these statutes are analogous. No question of jurisdiction or failure to exercise jurisdiction are involved in this matter. The question is whether the Court below exercised the jurisdiction illegally or with material irregularity. No such case of exercise of jurisdiction illegally or with material irregularity has been made out by the counsel for the petitioner Nartya Gopal. His only contention was that both the Courts should have given a finding of fact as well as of law that his client Nartya Gopal as a vendee for valuable consideration as under a registered sale-deed acquired possession of the property. Both the Courts refused to accept this fact of possession although on reasons of their own. It was admittedly a joint family of property and Raman was a minor. The fact of his minority has not been raised before. Both the Courts refused to accept this fact of possession although on reasons of their own. It was admittedly a joint family of property and Raman was a minor. The fact of his minority has not been raised before. Gopal, therefore could alienate the joint property according to the personal law restricting the powers of the Manager or the Kerta of the joint family as laid down in sec. 242 of the Mullas Hindu Law. The alienation could be made of the joint family property for legal necessity by the manager of the family. In the absence of the father of both the brothers, the Hindu law required that a senior member for the time being of the family can act as the manager or the karta of the family. No legal necessity has been shown for the transfer of Gopals interest in the joint family property. Therefore the sale by Gopal in favour of Nartya Gopal does not acquire any validity. Further presuming that a sale had been made the question is what right a vendee gets in a undivided coparcenary or joint Hindu family property. The Hindu law is clear that a co-parcener can alienate for value his interest in the joint Hindu family even without the consent of the other co-parceners or members of the family. But Mitakshra law lays down that this purchaser of co-parcenary interest does not acquire a right to joint possession specially if he is a stranger and even if he has obtained possession the other co-parceners can resist it. The purchaser only acquires a right to partition. Therefore in this ease Nartya Gopal by his purchase of the co-parcenary interest in the suit land did not acquire right to possession. His remedy lies to seek partition. Therefore, both the Courts in coming to the conclusion that Nartya Gopal did not acquire possession were not justified in doing so. Furthers the Transfer of Property Act which is very much applicable to Rajasthan also lays down in sec. His remedy lies to seek partition. Therefore, both the Courts in coming to the conclusion that Nartya Gopal did not acquire possession were not justified in doing so. Furthers the Transfer of Property Act which is very much applicable to Rajasthan also lays down in sec. 44 that where a co-owner of immovable property transfers his share of such property, the transferee acquired only a right to joint possession ana to enforce partition or sale, but where the property happens to be a dwelling house belonging to an undivided family and the transferee is not a Member of the family, nothing in that section shall be deemed to entitled him to joint possession or other common or part enjoyment of the house. Therefore, in this case Nartya Gopal as a purchaser of a share of a co-tenant he has got only a right to joint possession and nothing more which is enforceable, no doubt by way of partition, but that does not give him a right to assume possession of the property. For the reasons given above I am not persuaded to interfere with the orders already passed by the subordinate Court and reject the Revision Petition direct that in view of the law clarified on the subject, the trial Court where this case would go should pass appropriate orders whether this suit for permanent injunction could be maintained on the bare right to possession, leave aside the question of absence of possession as held. The proper remedy in this case for the petitioner would be to claim partition.