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2012 DIGILAW 1302 (RAJ)

Ram Ratan v. Chandra Prakash

2012-05-17

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—The plaintiff-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 24.4.2008 passed by the Additional District Judge, Kekri (District Ajmer) in Civil Regular Appeal No.2/2006 whereby the learned appellate Court by allowing the appeal filed by the defendant-respondent-Shri Chandra Prakash set aside and reversed the judgment and decree dated 1.4.2006 passed by the trial Court i.e. Civil Judge (Senior Division) Kekri (District Ajmer) in Civil Suit No.3/1995 whereby and whereunder the learned trial Court decreed the suit filed by the plaintiff-appellant for declaration and permanent injunction. 2. Brief relevant facts for the disposal of this appeal are that the appellant filed a suit for declaration, cancellation of sale deed and permanent injunction with the averment that land in dispute, an agriculture land, originally belonged to his grand-father-Late Shri Bhura and after his death it solely devolved upon his father late Shri Narayan and mutation was also opened in his favour. It was also averred that his father Shri Narayan died in Samvat Year 2030 and upon his death the land in question devolved upon him, his brother defendant-Shri Nandlal and their mother-Smt.Bhuli and all of them became co-tenant and joint possessors of the same and the mutation was also opened in their favour. It was further submitted that their mother died in the year 1992 and thereafter he and his brother-Shri Nandlal became co-tenant of the land in question and since they are in joint possession of the same and it has not been divided between them. It was further submitted that his brother-Shri Nandlal without his permission and consent sold one half undivided share of the land in question by a registered sale deed dated 16.5.1995 to the defendant-respondent-Shri Chandra Prakash in lieu of sale consideration of Rs.50,000/-. It was also averred that the land in question is an ancestral property which is still undivided and it is in joint possession of him and his brother and, therefore, his brother did not have a right even to sale one half share of the same. It was prayed by the appellant that the sale deed dated 16.5.1995 may be declared void, illegal and inoperative against his rights and as a consequence it may also be cancelled. It was prayed by the appellant that the sale deed dated 16.5.1995 may be declared void, illegal and inoperative against his rights and as a consequence it may also be cancelled. It was also prayed that the respondent-defendants may be restrained by way of permanent injunction not to take possession of the land in question. In the alternative, it was also prayed that after taking the amount of sale consideration from him, a sale deed may be ordered to be executed in favour of him in respect of the share so sold. The defendant-respondents filed separate written statements and it was averred by them that the land in question was partitioned about 25 years ago and since then both the brothers were in separate possession of their respective shares and the defendant-Nandlal after selling his half share of the land has handed over possession of the same to the defendant-purchaser-Shri Chandra Prakash. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. In support of his case appellant produced oral as well as documentary evidence whereas the defendant-respondents failed to produce any evidence. The learned trial Court after hearing both the parties decreed the suit and as a consequence of that the sale deed dated 16.5.1995 was declared to be illegal and inoperative and it was cancelled also. It was further ordered that defendant-respondent-Shri Chandra Prakash (purchaser) may be evicted from the part of the land which was sold to him and the possession of the same may be handed over to the plaintiff-appellant. The learned trial Court found that from the sale deed it is clear that the defendant-respondent-Nandlal has sold a specified share of the land in dispute which is still undivided and in the joint khatedari of both the brothers whereas he was not legally authorised to sale a specified share of the same. The defendant-respondent-purchaser-Shri Chandra Prakash feeling aggrieved, filed appeal under Section 96 CPC and the same was allowed by the appellate Court vide impugned judgment and decree dated 24.8.2008. The defendant-respondent-purchaser-Shri Chandra Prakash feeling aggrieved, filed appeal under Section 96 CPC and the same was allowed by the appellate Court vide impugned judgment and decree dated 24.8.2008. The appellate Court was of the view that from the sale deed it cannot be said that any specified share or portion of the land in question has been sold by the respondent-Shri Nandlal whereas the legal position is that a co-sharer of an agriculture land has a right to sell his undivided share in it without there being partition of it and without obtaining permission or consent of the remaining co-sharer. For its conclusion the learned first appellate Court mainly relied upon the case of Khema vs. Shri Bhagwan and others reported in 1994(2) RLW 14. Feeling aggrieved, the plaintiff-appellant is before this Court by way of this civil second appeal. 3. The respondents did not appear despite due service of notice upon them. The appeal was admitted for hearing vide order dated 20.2.2009 on the following substantial questions of law: "(i) Whether the land in question is in the joint tenancy of the plaintiff and the respondents and was undivided. (ii) Whether deceased-Nandlal was having right to sale the undivided land in question and thus, the sale deed dated 16.5.1995 becomes null and void." 4. Assailing the judgment of the appellate Court, the appellant submitted that it is an admitted fact that the land in question is an ancestral property as it originally belonged to Shri Bhura, who was grand-father of the appellant and his brother Shri Nandlal and at the time of execution of sale deed dated 16.5.1995 it was in the joint khatedari and possession of both the brothers and it was not divided between them and, therefore, respondent-Shri Nandlal, having only one half undivided share in it, was not legally entitled to sell or otherwise transfer even his half share in it to any other person including the respondent-Shri Chandra Prakash. According to appellant the learned trial Court on the basis of well settled legal position rightly held the sale deed to be void and illegal to the rights of the appellant but the learned first appellate Court without considering the matter in a right perspective set aside the judgment and decree of the trial Court and dismissed the suit filed by the appellant. It was further submitted that looking to the fact that the appellant is a co-tenant of the land in question alongwith his brother and he has one half share in it, he had a prior right to purchase the share of his brother but the respondent-Shri Nandlal without any information and offer to the appellant sold his share to a stranger. It was further submitted that it was prayed by the appellant that after taking from him sale consideration as paid by the present purchaser, sale deed in respect of one half share of Shri Nandlal may be executed in favour of him but that prayer was not considered by the appellate Court. In support of his submissions, the appellant relied upon several decisions. 5. I have considered the submissions made by the appellant and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law including the decisions relied upon by the appellant. 6. I am of the view that in the overall facts and circumstances of the case and more particularly looking to the pleadings of the parties and the case set up by the appellant himself, it cannot be said that any illegality or perversity has been committed by the first appellate Court in reversing the judgment and decree passed by the trial Court and as a consequence of that dismissing the suit filed by the appellant. The plaintiff-appellant came with a specific case, which has not been disputed by the respondents, that the land in question originally belonged to grand-father-Shri Bhura and after his death it solely devolved upon the father of the parties Shri Narayan and mutation was also opened in his name and after the death of Shri Narayan in Samvat Year 2030, it jointly devolved on both the brothers and their mother and mutation was also opened in their joint names on 24.12.1988 and subsequently on the death of their mother-Smt.Bhuli in the year 1992, the land in question devolved jointly on both the brothers and both of them became joint khatedars and co-tenants of the same having equal share and it is in their joint possession and both of them are cultivating it jointly. Although, the land was originally an ancestral land being vested in Shri Bhura but at present it cannot be said to be an ancestral property or a co-parcenary or Joint Hindu Family Property in the hands of both the brothers as it was never the case of the appellant that he had a share in the land even in the life time of his father Shri Narayan. As already said, the appellant came with a specific case that the parties' father Shri Narayan alone received the land in question on the death of his father-Shri Bhura and it is after the death of Shri Narayan it devolved upon both the brothers and their mother jointly and all of them became co-tenant/co-sharer of the same and after the death of their mother both the brothers became co-tenant/co-sharer of it having equal share in it. It was not the case of the appellant that being ancestral property he had share in it alongwith his father and his brother even in the life time of his father. The present case is not of a sale of undivided share of a Joint Hindu Family or co-parcenary property to a stranger. I am of the view that on the death of Shri Bhura, the land in question rightly devolved on his son Shri Narayan alone in accordance with the provisions of Hindu Succession Act, 1956 and on the death of Shri Narayan upon his heirs and legal representatives i.e. both of his sons and his wife-Smt.Bhuli Bai. Therefore, the validity of the sale deed was to be considered in accordance with the legal position in respect of a property of co-sharers and not in accordance with the law as applicable to a coparcenary or Hindu Undivided Family Property. In this regard the well settled legal position is that one of the co-sharers of a joint property or a co-tenant without partition of the same and without obtaining permission and consent of the remaining co-sharer or co-tenant can transfer in any manner to any other person, whole or part of his undivided share in such property and at the most the possession of the same cannot be handed over to the transferee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court. On such transfer, the transferee comes in the shoes of the transferer and he becomes co-sharer or co-tenant in place of the transferer having all rights of the transferer and he can demand partition of the property but only by that reason the transfer cannot become void and inoperative to the rights of the remaining co-sharer or co-tenant. The transferee does not acquire title to any defined share in the property and also does not acquire a right to joint possession from the date of the transfer and his right is to enforce for a partition. In my view the learned first appellate Court has rightly placed reliance upon the case of Khema vs. Shri Bhagwan and others in which the learned Single Bench has held that although a co-sharer cannot transfer a particular piece of land claiming the same respecting to his share but he is entitled to transfer his entire interest in agriculture land even there being no division of the same by metes and bounds between the co-sharer! According to learned Single Bench it is not necessary and it cannot be a condition precedent for executing a sale deed by a co-sharer or a co-tenant to the extent of his share, a prior division of the same may take place between the co-sharers. It was further held that as a matter of fact if a share in agriculture land is transferred by a co-sharer, the buyer of such co-tenant or co-sharer steps into the shoes of the seller and becomes a co-tenant. In the present case from the perusal of the sale deed it is very clear that the defendant-respondent-Shri Nandlal has only sold his undivided one half share of the land in question and not any specified portion or share of it. The learned trial Court by wrongly interpreting the terms and conditions of the sale deed has found that the respondent-Shri Nandlal has sold specified share of the land in question. Merely because the respondent has sold his entire one half share of the land, it cannot be said that any specified portion or share of it was sold. The learned trial Court by wrongly interpreting the terms and conditions of the sale deed has found that the respondent-Shri Nandlal has sold specified share of the land in question. Merely because the respondent has sold his entire one half share of the land, it cannot be said that any specified portion or share of it was sold. So far as the submission of the appellant that he had a prior right to purchase the share of his brother is concerned, although a prayer was made in the plaint to that effect but for that end no specific case was pleaded by the appellant in the plaint that he has a prior right of purchase. In this regard Issue No.7 was framed by the trial Court but the same was decided against the appellant by the reason that neither any evidence was produced nor any legal provision was cited in support of the claim. Otherwise also, it is well settled that the right of pre-emption is not applicable Jo a sale made by a khatedar-tenant of an agriculture holding. In the case of Mohd. Noor and others vs. Mohd. Ibrahim and others reported in AIR 1995 (SC) 398 , it has been held that the provisions of the Rajasthan Pre-emption Act are not applicable to an agriculture land and a co-sharer cannot claim right of pre-emption because that right is applicable only to ownership rights whereas in an agriculture right a tenant or co-tenant has only khatedari rights which do not amount to ownership rights. Therefore, on the basis of right of pre-emption also, the claim of the appellant is not tenable. So far as the decisions relied upon by the appellant are concerned, although he has produced various decisions of Hon'ble Supreme Court as well as various High Courts but the same are of no help to the appellant by the reason that they are in respect of a co-parcenary or a Joint Hindu Family Property whereas the present case is not in respect of such a property. As already been said, although the land in question was originally an ancestral property in the hands of Shri Bhura but after his death it solely devolved on Shri Narayan and the character of ancestral property was lost. As already been said, although the land in question was originally an ancestral property in the hands of Shri Bhura but after his death it solely devolved on Shri Narayan and the character of ancestral property was lost. As a result of all this discussion and findings, the substantial questions of law as framed vide order dated 20.2.2009 are decided and answered in the manner that the land in question was in the joint tenancy of the plaintiff-appellant and defendant-respondent-Shri Nandlal (deceased during pendency of this lis) and it was undivided at the time of execution of the sale deed dated 16.5.1995 but only by that reason it cannot be held that deceased-Shri Nandlal was not entitled to sell his undivided share of the same and the sale deed was null and void. Consequently, this civil second appeal fails and is hereby dismissed. The impugned judgment and decree dated 24.4.2008 passed by the Additional District Judge, Kekri (District Ajmer) in Civil Regular Appeal No.2/2006 is upheld and affirmed. No order as costs. Stay application also stands dismissed.