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2012 DIGILAW 737 (PNJ)

Raj Kumar v. Mohinder Kaur

2012-05-21

SABINA

body2012
Judgment Sabina, J. Plaintiffs had filed the suit for declaration that they were joint owners in possession of the suit land described in the head note of the plaint to the extent of 1/14th share. The case of the plaintiffs, in brief, was that defendants No. 1 to 6 along with Santosh Kumari were joint owners in possession of the land measuring 185 Kanals 18 Marlas. Santosh Kumari sold khasra Nos. 668/1(8-0), 668/2(2-18), 669/1(4-9), 669/2(0-3), 671(8-0) and 665 Min South (3-1) vide four sale deeds dated 11.6.1981 to the plaintiffs to the extent of ½ share and to Gurmeet Singh son of Gurbux Singh to the extent of ½ share. Santosh Kumari-vendor was in possession of the land sold by her as a co-sharer along with defendants No. 1 to 6. Defendants No. 1 to 6 were not allowing the plaintiffs to take possession of the suit land on the ground that Santosh Kumari was not in separate physical possession of the land sold by her to the plaintiffs and Gurmeet Singh. Hence, the suit was filed by the plaintiffs. Defendant No.1, in his written statement, averred that defendants No. 3 to 6 had no concern with regard to 34 Kanals of land bearing khewat No. 57 khatauni No. 72 as reflected in jamabandi for the year 1977-78 village Bhagwanpur. It was denied that defendants No. 1 to 6 and Santosh Kumari were in joint possession of the suit property. It was averred that Santosh Kumari was not in exclusive possession of the khasra numbers mentioned in the sale deeds and hence, she had no right to execute the sale deeds qua specific khasra numbers. Defendants No. 4 to 6, in their written statement, denied the contentions in the plaint. It was averred that the answering defendants were in actual possession of the suit land as owners. Santosh Kumari was not in possession of any part of the suit property and hence, was not in a position to hand over the possession of the same to the plaintiffs. Defendants No. 7 to 9, in their written statement, admitted the contents of the plaint and prayed that the suit of the plaintiffs be decreed. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether Santosh Kumari executed a valid sale deed dated 11.6.1981 in favour of the plaintiffs and Gurmit Singh? OPP 2. Defendants No. 7 to 9, in their written statement, admitted the contents of the plaint and prayed that the suit of the plaintiffs be decreed. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether Santosh Kumari executed a valid sale deed dated 11.6.1981 in favour of the plaintiffs and Gurmit Singh? OPP 2. Whether the plaintiffs are entitled to separate possession of land mentioned in part 'B' of the head note of the plaint? OPP 3. If issue No.2 is decided against the plaintiffs then whether the plaintiffs are entitled to the declaration as prayed for in sub para(a) of the head note of the plaint? OPP 4. Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is barred on the principle of res judicata? OPD 7. Relief. The trial court vide judgment and decree dated 16.12.1985 decreed the suit of the plaintiffs and decree for declaration was passed that the plaintiffs were joint owners of the land measuring 13 Kanals 5½ Marlas representing 1/14th share of the land described in the head note of the plaint. Two separate appeals were filed against the said judgment and decree. One appeal was filed by defendant No.1 whereas the second appeal was filed by defendants No. 3 to 6. Vide judgment and decree dated 5.6.1985, both the appeals were dismissed by the first appellate court. Hence, the present appeal by defendant No.1. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Admittedly, Santosh Kumari was a co-sharer in the suit property and joint owner to the extent of 1/7th share. It is not the case of the defendants that Santosh Kumari had sold the land to the plaintiffs beyond her share. The grievance of the defendants was that Santosh Kumari could not sell specific khasra numbers to the plaintiffs as she was not in possession of the said khasra numbers. It is a settled proposition of law that even if specific khasra numbers are sold out of joint property which are not in exclusive possession of the vendor/co-sharer then the said sale would be treated as sale of the share of the co-sharer. It is a settled proposition of law that even if specific khasra numbers are sold out of joint property which are not in exclusive possession of the vendor/co-sharer then the said sale would be treated as sale of the share of the co-sharer. It has been held by this Court in the case 'Sant Ram Nagina Ram vs. Deva Ram Nagina Ram and others' AIR 1961 PB 528 as under:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. (9) Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed. Ex. P-1 to Ex. P-4 are the sale deeds executed by Santosh Kumari in favour of the plaintiffs. As per the revenue record available on the file, Santosh Kumari was co-sharer in the suit property and was, thus, entitled to execute the sale deeds in favour of the plaintiffs qua her share in the suit property. After the sale of the suit land to the plaintiffs they have stepped into the shoes of their vendor Santosh Kumari and have thus become joint owners in possession of the suit land to the extent of share of Santosh Kumari purchased by them. Thus, by way of the sale deeds, plaintiffs got symbolic possession of the suit property. The courts below had also decreed the suit of the plaintiffs and had given the declaration that they were joint owners in possession of the suit land. In these circumstances, no substantial question of law arises in this case which would warrant interference by this court. Dismissed.