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2000 DIGILAW 880 (PNJ)

Mewa Singh v. Baldev Krishan

2000-08-08

M.L.SINGHAL

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JUDGMENT M.L. Singhal, J. - Mewa Singh and others sons of Bachan Singh-plaintiffs filed suit for permanent injunction against Baldev Krishan and others restraining the latter from taking forcibly the possession of the land in suit which measures 17 kanals 4 marlas as described in the heading of the plaint except in due course of law. It is alleged in the plaint that the land in suit was the ownership of Baldev Krishan-defendant No. 1 and was in his possession per family partition. Baldev Krishan mortgaged with possession the land measuring 17 kanals 4 marlas by way of registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/- with the plaintiffs. So far, the land in question has not been redeemed and the plaintiffs are in possession of the land in suit since then. Baldev Krishan got the land partitioned in connivance with other defendants but without arraying the plaintiffs as party in the partition proceedings. Baldev Krishan-defendant wants to take possession of the land in suit on the basis of said partition. 2. Defendants contested the suit of the plaintiffs. Baldev Krishan-defendant was co-sharer to the extent of 9/16 share in the total land. Siri Ram and Ramesh Kumar-defendants No. 2 and 3 are co-sharers to the extent of 3/16. Pawan Kumar-defendant No. 4 was entitled to 1/4th share. Other co-sharers are entitled to 3/16 share out of the suit land. Baldev Krishan-defendant No. 1 was not competent to mortgage the land measuring 17 kanals 4 marlas because he was co-sharer/co-owner to the extent of 9/16 share. Vide order dated 10.12.1992 suit land was partitioned by the A.C. 1st Grade, Mansa and the land measuring 3 kanals 6 marlas out of the suit land fell to the shares of Siri Ram and Ramesh Kumar-defendants No. 2 and 3 according to the partition proceedings and they are entitled to take possession in due course of law. It was alleged that the plaintiffs had no cause of action. It was alleged that the defendants were taking possession of the land measuring 3 kanals 6 marlas which had fallen to their share according to the order passed by the AC 1st Grade in partition proceedings. The plaintiff had no right to retain possession of the land. 3. On the pleadings of the parties, the following issues were framed : 1- Whether the plaintiffs are entitled to permanent injunction ? The plaintiff had no right to retain possession of the land. 3. On the pleadings of the parties, the following issues were framed : 1- Whether the plaintiffs are entitled to permanent injunction ? OPP 2- Whether plaintiffs are in possession of the suit property on the basis of mortgage deed executed by defendant No. 1 on 16.10.1987, if so its affect ? OPP 3- Whether the suit of the plaintiff is not maintainable ? OPD 4- Whether the plaintiffs have no locus standi to file the present suit ? OPD 5- Whether the defendants are entitled to special costs ? OPD 6- Relief. 4. Vide order dated 2.4.1997, Civil Judge (Jr. Division), Mansa declared the plaintiffs suit viz. the plaintiffs are entitled to retain possession of the mortgaged land, till the mortgage is redeemed in accordance with the law in view of his finding that the land in suit measuring 17 kanals 4 marlas had been mortgaged with possession by Baldev Krishan-defendant with the plaintiffs vide registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/- and the mortgage has not been redeemed so far by the defendants and till the mortgage is redeemed the defendants are not entitled to take possession. It was found that the plaintiffs could not be dispossessed in pursuance of partition proceedings, in which they were not party. It was found that the defendants were not entitled to take possession till mortgage was redeemed and the plaintiffs were paid off. 5. Not satisfied with the judgment and decree of Civil Judge (Jr. Division), Mansa, Siri Ram and Ramesh Kumar-defendants No. 2 and 3 went in appeal. 6. Vide order dated 18.3.1999, Additional District Judge, Mansa accepted the appeal and set aside the judgment and decree of Civil Judge (Jr. Division), Mansa and dismissed the plaintiffs suit. 7. Not satisfied with the judgment and decree of the Additional District Judge, Mansa, Mewa Singh and others-plaintiffs have come up in appeal to this Court. 8. I have heard the learned counsel for the parties. 9. It was submitted by the learned counsel for the appellants that they are mortgagees with possession of land measuring 17 kanals 4 marlas from Baldev Krishan-defendant through registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/-. It was joint property, out of which 17 kanals 4 marlas had fallen to the share of Baldev Krishan on family partition. It was submitted by the learned counsel for the appellants that they are mortgagees with possession of land measuring 17 kanals 4 marlas from Baldev Krishan-defendant through registered mortgage deed dated 16.10.1987 for a sum of Rs. 35,000/-. It was joint property, out of which 17 kanals 4 marlas had fallen to the share of Baldev Krishan on family partition. Baldev Krishan could mortgage land measuring 17 kanals 4 marlas as he was in possession thereof as owner, this land having fallen to his share in family partition. It was submitted by him that the mortgage was never redeemed by Baldev Krishan-defendant and Baldev Krishan got the suit land partitioned without enshrining them as party. It was submitted that the appellants are not bound by partition ordered by the AC 1st Grade, Mansa. 10. Learned counsel for the respondents, on the other hand, submitted that Baldev Krishan had only 9/16 share in the joint land. As such, he could not mortgage land in excess of his share. A co-sharer in possession of the joint land can mortgage it only to the extent of his share and not beyond that. Mortgage of the share of the other co-sharer is not valid. In support of this submission, he drew my attention to Sohan Singh v. Kapur Singh and others, 1992 PLJ 246. It was submitted that the rights of the person which he acquired under such a mortgage are subject to adjustment of the share of the parties in partition proceedings. It was submitted that Baldev Krishan-defendant could not mortgage the entire joint land in favour of the plaintiffs-appellants and if such mortgage was created by him, the mortgagees had to surrender possession to the co-sharers to whom the land was allotted on partition by the AC 1st Grade, Mansa in regular partition proceedings. Vide order of partition dated 10.12.1992 Ex-D3, land measuring 3 kanals 6 marlas out of rectangle/killa Nos. 215//21/2(1-4), 233//1/2(2-0), 707/2(0-2) was allotted to Siri Ram and Ramesh Kumar-defendants. 11. Baldev Krishan was co-sharer in the joint land. He had 9/16 share. As such, he could not mortgage the land in favour of the plaintiff in excess of his share. Mewa Singh etc.-appellants are not necessary party to the partition proceedings. 12. 215//21/2(1-4), 233//1/2(2-0), 707/2(0-2) was allotted to Siri Ram and Ramesh Kumar-defendants. 11. Baldev Krishan was co-sharer in the joint land. He had 9/16 share. As such, he could not mortgage the land in favour of the plaintiff in excess of his share. Mewa Singh etc.-appellants are not necessary party to the partition proceedings. 12. Section 111 of the Punjab Land Revenue Act, 1887 reads as follows : "Any joint owner of land, or any joint tenant of the tenancy in which a right of occupancy subsists, may apply to Revenue Officer for partition of his share in the land or tenancy, as the case may be, if - (a) at the date of the application the share is recorded under Chapter IV as belonging to him; or (b) his right to the share has been established by a decree which still subsisting at the date; or (c) a written acknowledgement of that right has been executed by all persons interest in the admission or denial thereof." 13. It is clear that the mortgagee who is in possession of the land to be partitioned is not a necessary party in the proceedings. It was held in Sewa Singh and others v. Mohan Singh and others, AIR 1938 Lahore 615 that the mortgagee is not owner of the land and hence cannot claim partition within the meaning of Section 111 of the Punjab Land Revenue Act. Siri Ram and Ramesh Kumar-defendants are claiming possession of the land which fell to their share on partition in pursuance of the order of the AC 1st Grade, Mansa. They cannot be restrained from executing the partition decree passed by the AC 1st Grade, Mansa. Mewa Singh etc.-appellants are not entitled to thwart the partition decree as they are mortgagees with possession inducted by Baldev Krishan qua the land in excess of his share and now some land which was mortgaged with possession by him (Baldev Krishan) has fallen to the share of Siri Ram and Ramesh Kumar. 14. It is cardinal principle of law that a co-sharer in exclusive possession can deal with but not in excess of his share. In this case, Baldev Krishan- defendant created mortgage which was in excess of his share in the joint property. Other co-sharers are not bound by the creation of mortgage in excess of his share by Baldev Krishan. 15. It is cardinal principle of law that a co-sharer in exclusive possession can deal with but not in excess of his share. In this case, Baldev Krishan- defendant created mortgage which was in excess of his share in the joint property. Other co-sharers are not bound by the creation of mortgage in excess of his share by Baldev Krishan. 15. In view of what has been said above, this appeal fails and is dismissed. Judgment and decree dated 18.3.1999 passed by Additional District Judge, Mansa are upheld. Plaintiffs are, however, free to pursue their remedy against Baldev Krishan, if any, which the law allows them. Appeal dismissed.