The High Court
Case Details
1 S.A. 54 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 54 of 2020 (Against judgment dated 02.01.2020 passed by the learned District Judge- VIII, Hazaribag, in Title Appeal no. 37 of 2017) 1. Madhusudan Khandelwal (aged about 65 years) S/o Late Gulab Chand Khandelwal 2. Meghraj Khandelwal (aged about 59 years) S/o Late Gulab Chand Khandelwal 3. Sanjay Khandelwal (aged about 54 years) S/o Late Gulab Chand Khandelwal 4. Sarad Khandelwal (aged about 48 years) S/o Late Gulab Chand Khandelwal All Hazaribag residents of Boddom Bazar, P.,O., P.S. and District- 5. (a) Manish Kandelwal, S/o Sri Prakash Khandelwal 5. (b) Neha Khandelwal, D/o Sri Prakash Khandelwal, Both residents of TF – 1, Dhanush Palace, 7th cross, 13th Main, Vijaya Bank Layout, Billekalli BBMP, P.O. + P.S.- Billekalli, Bangaluru, Karnataka 6. Kalpana Khandelwal, (aged about 57 years) W/o Sri Santosh Khandelwal, D/o, Late Gulab chand Khandelwal, resident of Giridih near Jain Mandir, P.O., P.S. & District- Giridih 7. Kabita Khandelwal, (aged about 52 years) W/o, Sri Sushil Khandelwal, d/o Late Gulab Chand Khandelwal, residents of Ujjain , P.O., P.S. and District- Ujjain (Madhya Pradesh) 8. Rahul Khandelwal (aged about 56 years) S/o Late Banwari Lal Khandelwal 9. Rajesh Khandelwal (aged about 54 years) S/o Late Banwari Lal Khandelwal 10. Ravi Khandelwal (aged about 49 years) S/o Late Banwari Lal Khandelwal 11. Rajiv Khandelwal (aged about 47 years) S/o Late Banwari Lal Khandelwal 12. Ritesh Khandelwal (aged about 45 years) S/o Late Banwari Lal Khandelwal All residents of village- Boddom Bazar, P.O., P.S. & District- Hazaribag ... Defendants/ Appellants / Appellants Versus 1. Kalawati Devi, W/o Sri Atma Ram Moonka 2. Atma Ram Moonka,S/o Sri Makhan Lal Moonka, residents of Boddom Bazar, P.O, ,P.S. & District- Hazaribag 3. Nand Kishore Khandelwal, s/o late Sheo Lal Seth 4. Nawal Kishore Khandelwal, s/o late Sheo Lal Seth 5. Gyan Chand Khandelwal, s/o late Sheo Lal Seth 6. Raj Kishore Khandelwal, s/o late Sheo Lal Seth All are residents of Bara Bazar, P.O., P.S. & District- Hazaribag
Legal Reasoning
….. Defendants/ Respondents/ Respondents For the Appellants
Legal Reasoning
: Mr. Pratyush Kumar, Adv 2 S.A. 54 of 2020 P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been directed against the judgment of concurrence dated 02.01.2020 passed by the learned District Judge- VIII, Hazaribagh, in Title Appeal no. 37 of 2017 by which, learned First Appellate Court affirmed the judgment and decree passed by the learned trial court being learned Civil Judge (Sr. Division)- I ,Hazaribag in Title Suit No. 16 of 1998 dated 25.07.2017 and dismissed the Title Suit. 3. The case of the plaintiffs in brief is that Ganesh Ram Seth was the common ancestor of the plaintiffs and the defendant nos. 3 to 7 and the suit property is a dwelling house and initially all the members of the family were residing therein. Due to increase in the number of the members, the defendant no. 3- Sheo Lal Seth shifted with his family members to a different place but the plaintiffs are still residing in the same house with their family members. The suit house stands in the name of Sheo Pd. Seth in municipal record and holding tax including other charges were all along paid by Sheo Pd. Seth and after his death, the same is being paid by plaintiffs. Sheo Pd. Seth as Karta of the joint family, let out some portion of house bearing holding no. 26 to the father of the defendant no. 2 namely Makhan Lal, who started the business in the name and style of M/s Makhanlal Murari Lal and rent of tenanted premises was all along realized by Sheo Pd. Lal Seth @ Rs. 45/- per month but rent was subsequently, allowed to be realized by the defendant no. 3, on behalf of the joint family. After the death of Makhan Lal, the defendant no. 2, continued as tenant of joint family and rent was realized by the defendant no. 3, on 3 S.A. 54 of 2020 behalf of the joint family. In Partition suit no. 3/ 1942, the joint family property was partitioned, the decree for partition of 5 annas 4 pies share of each sons of Ram Narayan Lal Seth was passed and a proceeding for final decree is pending in the court of Sub Judge I, Hazaribagh. The defendant no. 3 and/or his sons, before and after institution of the suit, have transferred various properties from time to time by virtue of various registered sale deeds in favour of various persons and after such sale, the defendant no. 3 or his sons were left with no share in joint property. The plaintiffs asserted that the defendant nos. 3 to 7, illegally and without knowledge or consent of the plaintiffs, executed the registered sale deed dated 13.02.1995 in favour of the defendant no. 1 for specific portion of suit land and house more fully described in schedule A of the plaint. The plaintiffs asserted that the defendant no. 1 has not acquired any interest in the property or at best has acquired an equity to enforce his right to partition suit property and to set apart the same out of share of her vendors, alternatively, it was pleaded by the plaintiffs that the suit property being a joint family property and the plaintiffs being co-sharer had a preferential right to purchase schedule A property but defendant nos. 3 to 7 without giving any offer to plaintiffs to purchase and even without their consent or knowledge executed registered sale deed in favour of defendant no. 1, hence the plaintiffs prayed or declaration that the sale deed executed by the defendant no. 3 to 7, in favor of defendant no. 1, in respect of the schedule A land of the plaint, dated 13.02.1995, is illegal and void and that the defendant no. 1 has not acquired interest in or upon the same, or alternatively, passing a decree in favor of the plaintiff directing the defendant to reconvey the suit land described in schedule A of the plaint, for value as may be determined by the court, failing which, the same be re-conveyed through the process of the court. The plaintiff also prayed for decree for eviction of defendant 4 S.A. 54 of 2020 no. 2 from the suit premises, described in Schedule A of the plaint and the plaintiff be put in khas possession thereof, through process of court, cost of suit, any other relief or reliefs. 4. In their written statement, the defendant challenged the maintainability of the suit on various technical grounds. The defendant further pleaded that Ram Narayan Lal Seth and Baiju Lal Seth were jointly residing in pucca house bearing holding no. 929 in Ward No. 7 of Hazaribagh Municipality, known as Kuwawala Makan i.e. adjacent south to Subhas Marg and another tiled roofed house, adjacent west to Barkagaon road. Due to some difference with the wife of Baiju Lal, Ram Narayan Lal Seth , shifted from holding no. 929 to another house with his wife; where he died in the year 1932 leaving behind his wife and sons. Laxmi Bai, wife of Baiju Lal Seth continued to reside in the said holding no. 929. In the year, 1936, Sheo Lal Seth shifted to tiled house standing over plot no. 952 but remaining two brothers Sheo Pd. Lal Seth and Sheo Karan Lal Seth continued to reside in said house. The brothers managed other properties separately, according to their suitability and convenience by which, Sheo Lal Seth came in possession of tiled roofed house standing over eastern part of plot no. 453 i.e the suit property and tiled roofed house standing over the plot no. 457, 456 and other properties by letting out the same to the different tenants. Sheo Pd. Lal Seth in the state of separation, shifted to a house standing on plot no. 452. The suit property being the ancestral property came in separate possession of Sheo Lal Seth. Sheo Lal Seth had obtained delivery of possession through the process of court, in respect of the house situated opposite to Bihar Khadi Bhandar. The defendant denied that the father of the plaintiff ever let out a portion of holding no. 26 to the father of the defendant on behalf of the joint family. The defendant no. 3 let out the suit premises to the father of the defendant no. 2, sometime in the year 1939 on monthly rent and since then, the father of 5 S.A. 54 of 2020 defendant no. 2 came and continued to remain in possession of the suit premises as a tenant of the defendant no. 3, till his death which took place in the year 1985. Gulab Chand & Ors. filed FA No. 168 of 1950 against the preliminary decree passed in Partition Suit No. 03 of 1942 in Hon’ble Patna High Court, which was disposed of vide the judgment dated 27.08.1963 by which no share was allotted to Laxmi Bai, save and except the house standing over plot no. 929 known as Kuwan Wala Makan. Against the said judgment of the Hon’ble Patna high court, Civil Appeal No. 1759 of 1969 was filed by Laxmi Bai before the Hon’ble Supreme Court of India and the same was disposed of by a consent order dated 28.03.1980, by which a portion of holding no. 952 over which, the defendant no. 3 was in possession, was given to Laxmi Bai, besides holding no. 929. Thereafter, the defendant no. 3 filed a petition for preparation of final decree in accordance with order passed by Hon’ble court which is still pending. 5. The defendant further pleaded that two sons of Sheo Pd. Lal i.e. Gulab Chand Khandelwal and Banwari Lal Khandelwal (father of plaintiff nos. 2 to 6) separated in mess and cultivation and residence and both also, divided the properties which were in their possession according to their suitability and convenience and started to deal with the same even by raising new construction as well as by disposing of other properties involved in said partition suit to different persons, without knowledge and consent of the defendant no. 3 and his legal heirs. The defendants further pleaded that the suit property as described in schedule A of the plaint being separate and in exclusive possession of defendant no. 2 from the rest of the house cum shop rooms, standing over the plot no. 453 since the time of his father as a tenant under defendant no. 3, who fell in need of money, hence the defendant no. 3 and his sons on receipt of cash consideration and to tacit knowledge of the plaintiff, transferred by a registered deed of sale in favour of the 6 S.A. 54 of 2020 defendant no. 1, who is coming in peaceful possession thereof, as the absolute owner. The defendant further pleaded that the suit property being distinct and separate from the rest of holding which is suitable for business, and from where the defendant no. 2 is running his business, hence, the question of preferential right of the plaintiffs does not arise, as the property has been transferred in favour of the defendants to the knowledge of the plaintiffs who are guilty of their own conduct; who transferred other properties to several persons. The defendant next pleaded that the suit property as described in schedule A of the plaint is neither dwelling house nor used as such, since 1939- 40, hence, Section 4 of the Partition Act is not applicable to the case. The defendant no. 1 is the wife of defendant no. 2 and after purchase of the property by defendant no. 1, the defendant no. 1 and 2 , have been in possession of the same as absolute owner thereof. The defendant next pleaded that in exercise of right, title and possession, the defendant no. 1 got her name mutated in the office of municipality, Hazaribagh and making payment of ground rent and taxes against grant of rent receipt to the knowledge of the plaintiffs, without any objection, being raised by the plaintiffs, hence, refusal of payment of rent to the plaintiffs by the defendant, does not arise. 6. On the basis of the rival pleadings of the parties, learned trial court framed the following ten issues :- 1) Is the suit maintainable in its present form? 2) Have the plaintiffs valid cause of action? 3) Is the suit hit under the provision of Specific Relief Act? 4) Is the suit barred by law of limitation and adverse possession? 5) Is the suit barred by law of estoppel, acquiescence and waiver? 6) Is the suit bad for non-joinder of necessary party? 7) Is the suit undervalued? 8) Is the sale deed dt. 13.02.1995 executed by defendant nos. 3 to 7, in favour of defendant no. 1 with respect to suit property is null and void and confers no right in favour of defendant no. 1 ? 9) Are the plaintiffs entitled for recovery of possession by evicting defendant no. 2 from the suit premises? 10) To what other relief or reliefs the plaintiffs are entitled? 7. Learned trial court considered the oral testimony of the 6 7 S.A. 54 of 2020 witnesses examined by the plaintiffs and the documents which have been marked as Exhibit 1 to 8/A as well as the oral testimony of the 5 witnesses examined by the defendants and the documents which has been marked as Exhibit A to F/15. 8. Learned trial court first took up issue no. 8 and 9 together, and after considering the evidence in the record, came to the conclusion that the moment, the defendant no. 1 purchased the suit property, she is deemed to have stepped into the shoes of a co-sharer of joint property to the extent of the suit property because she has got a right to sue for partition for allocation of her share to be allocated to her vendor. So defendant no. 1 having stepped into the shoes of the landlord of defendant no. 2, then it is the defendant no. 1 only, who can get the suit premises evicted from her tenant, by due process of law, hence, the plaintiff is not entitled for getting the eviction of the defendant no. 2 from the suit premises and answered both the issue no. 8 and 9, against the plaintiff. 9. Learned trial court next took up issue no. 3, 4, 5, 6 and 7 together and learned trial court held that the suit is not barred by limitation and none of the parties have made any claim on the basis of the adverse possession, hence, the suit is not barred by the law of adverse possession. The suit is also not barred by law of estoppel, acquiescence and waiver. The suit is not undervalued and the is suit is not bad for non-joining of necessary parties and the suit is not hit under the provision of Specific Relief Act, 1963 and decided the issue nos. 3 to 7 against the defendants. 10. Lastly, learned trial court took up issue no. 1 and 2, and held that the plaintiff did not have valid cause of action to institute the suit and the suit is non-maintainable. 11. Lastly, the trial court took up the issue no. 10 and held that the plaintiffs are not entitled to any relief, and dismissed the suit on contest against the defendant no. 1 and 2, and ex- parte against the defendant no. 3 to 7, but without costs. 8 S.A. 54 of 2020 12. Being aggrieved by the judgment and decree passed by learned trial court, the plaintiffs preferred Title Appeal No. 37 of 2017 and learned First Appellate court settled the following 03 points for determination : I. Whether the Sale deed bearing no. 1268 dated 13.02.1995 executed by defendant no. 3 to 7, in favour of defendant no. 1 with respect to the suit property is null and void and whether it confers any right, title and interest upon defendant no. 1 over the suit property or not? II. Whether the plaintiffs are entitled for recovery of possession over the suit property by evicting defendant no. 2 from the suit premises or not ? III. Whether the learned trial court did not discuss and consider the evidence oral as well as documentary produced by both the parties and gave a wrong finding by dismissing the suit or not? 13. Learned First Appellate Court first took up the point for determination no. I and considered that the Partition suit no. 3 of 1942 was decreed and the parties to the suit, have sold properties to various persons and also basing upon the evidence in record, came to conclusion that the suit property stood partitioned by way of settlement among the co-sharers and fell in the share of defendant no. 3, in terms of the decree of partition suit no. 3 / 1942. Learned First Appellate Court also considered that the ward councillor of Hazaribagh, issued a ownership certificate (Exhibit A) in favour of the defendant no. 1with respect to the suit premises and correction slip (Exhibit D) and holding tax receipts (Exhibit F to F/15) in respect of the suit premises, has been issued in favour of the defendant no. 1, who is vendee of the suit premises and the same strengthens the claims of defendant no. 1 and 2 and negates the plea of the plaintiffs and reiterated the settled principle of law, that an undivided share of a coparceners can also be a subject matter of sale, came to the conclusion that the sale deed dated 13.02.1995, cannot be declared null and void as prayed for by plaintiffs and also held that the same created right, title and interest in favour of the defendant no. 1 in 9 S.A. 54 of 2020 respect of the suit property. 14. Learned First Appellate Court next took up point for determination no. 2 and considered the fact that as the suit property is not the joint property, and the sale deed dated 13.02.1995 is not null and void rather conveyed, right, title and interest in favour of the defendant no. 1, in respect of the suit property, hence, the plaintiffs are not entitled to evict the defendant no. 2, from the schedule A land of the plaint and to get the possession of the same. 15. Lastly, Learned First Appellate Court considered the point for determination no. 3 and came to the conclusion that the trial court has come to correct finding though for the reasons, different from the one assigned at by the learned First Appellate Court and further observed that the trial court has righty dismissed the suit of the plaintiffs, so there is no merit in the appeal and hence there is no ground of interference by the learned First Appellate Court with the impugned judgment and decree and dismissed the appeal on contest but without costs. 16. Mr. Pratyush Kumar, learned counsel for the appellants submits that learned Lower Appellate Court gravely erred in law by not considering the crucial aspect that the impugned sale deed dated 13.02.1995, (Exhibit 7) executed by the defendant no. 3 to 7 in favor of the defendant no. 1, was executed illegally in respect of joint family property. 17. Mr. Pratyush Kumar, learned counsel for the appellants next submitted that in view of Section 44 of the Transfer of Properties Act, the courts below ought to have held that the defendant no. 1 and 2 do not have any right to joint possession or common enjoyment of the house. 18. Learned counsel for the appellants submits that Exhibit 7 was illegal and void as the same was subject matter of pending final decree proceeding, hence, it is submitted by learned counsel for the appellants that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed after 10 S.A. 54 of 2020 formulating the appropriate substantial question of law and the suit of the plaintiffs be dismissed. 19. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is settled principle of law that the stranger / outsiders can purchase shares even in a dwelling house of a joint family, as has been observed by the Hon’ble Supreme Court of India, in the case of Gautam Paul v. Debi Rani Paul and others reported in (2000) 8 SCC 330, para 23 of which reads as under :- “ 23. We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the legislatures clearly did not intend to confer. The legislature was aware that in a suit for partition the stranger/outsider, who has purchased a share, would have to be made a party. The legislature was aware that in a suit for partition the parties are interchangeable. The legislature was aware that a partition suit would result in a decree for partition and in most cases a division by metes and bounds. The legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the legislature did not provide that the right for pre-emption could be exercised “in any suit for partition”. The legislature only provided for such right when the “transferee sues for partition”. The intention of the legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger-purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for 11 S.A. 54 of 2020 partition. The interpretation given by Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.” (Emphasis supplied) 20. Now coming to the facts of the case, the undisputed facts remains that the Partition Suit No. 3 of 1942, between the parties has preliminary been decreed with allocation of the shares to the parties. The plaintiff no. 1, who was original plaintiff, was examined as PW1, transferred some properties which was subject matter of Partition Suit No. 3 / 1942 to the purchasers and the purchasers have been in possession of the same. The original plaintiff no. 1 and Banwari Lal, who is the father of the plaintiff no. 2 to 6, sold their ancestral property; the three sons of Ram Narayan Lal Seth managed and possessed the properties, according to their convenience. It is also admitted case of the plaintiffs that the defendant no. 3 and his sons, both prior to and after institution of the suit, sold many properties which was the subject matter of the partition suit no. 3 / 1942. The co- sharers possessed and enjoyed the properties, as per their convenience and it got settled among the co-sharers for long period . 21. Under the circumstances, the finding of facts of learned First Appellate Court that the suit property stood partitioned and fell in the share of the defendant no. 3, cannot be said to be a perverse finding. 22. After carefully going through the materials available in the record, this court finds that the impugned judgment has not been passed by ignoring or excluding the relevant materials or taking into consideration the irrelevant materials nor such 12 S.A. 54 of 2020 finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, hence, in the absence of any perversity in findings of facts of the courts below, there is no justifiable reason for this court to interfere with the concurrent finding of facts of both the courts below. 23. It being the settled principle of law, that the strangers can purchase shares, even from a dwelling house, of a joint family property but in this case, the evidence in the record, indicates that there was no joint possession or common enjoyment of the suit property by anyone else than the defendant nos. 1 and 2, hence, in the considered opinion of this court, the provisions of Section 44 of the Transfer of the Properties Act, is not applicable in the facts of the case. 24. Under such circumstances, this court also finds that there is absolutely no substantial question of law involved in this appeal. Accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 25. Let a copy of this Judgment be sent back to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 27th February, 2023. Smita /AFR