Smt.Raj Kumari v. Thakar

Mr. Jaswant Jain, Advocate for respondent. K.C.PURI, J. This is a regular second appeal directed by defendant- appellant against the judgment dated 8.9.1984 passed by Shri B.R.Vohra, learned Additional District Judge, (III) Hissar vide which the appeal preferred by the plaintiff against the judgment and decree dated 15.12.1983 passed by Mr. P.K.Goel, Sub Judge Ist Class, Hissar dismissing the suit of the plaintiff, stood accepted while setting aside RSA No.1027 of 1985 2 the judgment and decree passed by the trial Court. Briefly stated, the case of the plaintiff in brief is that he and his brother Ram Rikh were owners in equal shares of the suit property and alleged that Ram Rikh had alienated his ½ share to the defendant. However, Ram Rikh had sold the land more than his share and the plaintiff was not bound by the said excess sale of land. The defendant had taken illegal possession of the entire land and whereas she could only take possession of half share in the disputed land. Hence the suit. On notice, defendant appeared and filed written statement and took up preliminary objections that the suit was not maintainable in the present form; that Civil Court has no jurisdiction to try this case; that it was barred by limitation, that plaintiff was estopped by his act and conduct to file the present suit, as the land sold had fallen to the exclusive share of Ram Rikh in a family partition and, therefore, he was entitled to sell the total land to defendant, who is a bona fide purchaser for valuable consideration and without notice and therefore, the suit was liable to be dismissed. On merits, she denied all the allegations of the plaint and prayed for dismissal of the suit. Following issues were framed:- i. Whether the plaintiff is entitled for possession of ½ share of agricultural land comprised in rect. No.38 killa No.6 on the grounds mentioned in the plaint ?OPP ii. Whether the suit is not maintainable in the present form ? OPD. iii.Whether the civil court has got no jurisdiction to try this suit ?OPD. iv. Whether the suit is barred by limitation ?OPD RSA No.1027 of 1985 3 v. Whether the plaintiff has no locus standi to file the suit ?OPD. vi.Whether the plaintiff is estopped from filing the presnt suit ?OPD vii. Whether the defendant is a bona fide purchaser for consideration ? If so, to what effect ?OPD. Viii. Whether the plaint has not been signed and verified according to law ?If so, to what effect ?OPD. ix.Relief. The parties have led their respective evidence on the aforesaid issues. After appreciating the same and hearing the learned counsel for the parties, the trial Court dismissed the suit of the plaintiff vide judgment and decree dated 15.12.1983. Feeling dissatisfied with the judgment dated 15.12.1983, the plaintiff preferred appeal before the First Appellate Court. The said appeal was accepted by learned Additional District Judge, Hissar vide judgment and decree dated 8.9.1984. Feeling dissatisfied with the judgment and decree passed by learned First Appellate Court, the defendant-appellant has preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case with their help. The learned counsel for the defendant/appellant placed on record substantial questions of law for adjudication, which reads as follow :- RSA No.1027 of 1985 4 i) Whether a co-owner in exclusive possession of land, is legally entitled to transfer and deliver actual physical possession particularly when the area sold is not more than his share ? ii) Whether subsequent exchange effected by a co-owner after execution of the sale deed can affect the rights of a vendee under a sale deed or not ? iii)Whether the Civil Court can make out a new case than the one pleaded and evidence led in pursuance thereto? iv)Whether the evidence beyond pleadings cannot be looked into and if so, to what effect ? Learned counsel for the appellant in support of the case of the defendant/appellant has submitted that Ram Rikh and Thakar were the cosharers in land measuring 43 kanals 14 marlas as per jamabandi for the year 1970-71 proved as Ex.P1/1. The appellant purchased 8 kanals of land out of the joint khatta. Ram Rikh was in exclusive possessions of the said land. The sale in favour of the defendant/appellant is within the share of Ram Rikh. So, in these circumstances, the First Appellate Court should have dismissed the suit of the plaintiff. The First Appellate Court has wrongly held that plaintiff is the owner of half share of the khasra number in dispute and has further wrongly held that Thakar Singh has got the right to get the joint land partitioned. The First Appellate Court has lost sight of the fact that remaining land has been exchanged by Ram Rikh and Thakar with other persons. The sale in favour of the appellant is well within the share of her vendor Ram Rikh. A cosharer in exclusive possession can hand over the possessions of that land if the sale is within his share. RSA No.1027 of 1985 5 The First Appellate Court has also held that sale is within the share of Ram Rikh. So, the right given to the plaintiff for partition of the land should not have been granted. Learned counsel for the appellant has relied upon Kala and others vs. Suraj Bhan and others 1985 (1) PLR 219. Learned counsel for the respondent has supported the judgment of the trial Court. I have considered the submissions made by both the sides and have gone through the records of the case. The factual position is not in dispute. Thakar and Ram Rikh were the owners of the land measuring 43 kanals 14 marlas as shown in jamabandi Ex.P-1/1 for the year 1970-71. The sale deed in favour of the defendant has been held to be legal and the same has not been set aside by the First Appellate Court. The only decree of declaration has been passed by the the First Appellate Court that plaintiff is cosharer to the extent of half share of the joint holding which also consisted a disputed land along with other joint holding of Thakar and 'Ram Rikh which they got through exchange dated 20.5.1971 registered on 22.5.1972. It has been laid down that suit land is subject to partition along with the other land. That judgment is strictly in consonance with the authority Kala Singh's case (supra) relied upon by the counsel for the appellant. If a cosharer sells the exclusive khasra number, the vendee stepped into the shoes of vendor and has a right to retain the possession till partition. So, the finding returned by the the RSA No.1027 of 1985 6 First Appellate Court does not call for any interference. A cosharer in exclusive possession has the legal right to transfer and deliver the physical possession of specific khasra numbers which are in his possession. The subsequent exchange by plaintiff and Ram Rikh vendor of defendant/appellant does not affect the rights of the defendant in any manner. The learned counsel for the appellant could not point out as to how the Civil Court has made a new case other than the pleaded case of the parties. He has also not drawn my pointed attention from which it can be inferred that evidence beyond pleading has been looked into. So, I have no hesitation in concluding that no substantial question of law has arisen in the present case. The right of the defendant/appellant has already been protected by the First Appellate Court as she has been allowed to remain in possession of the suit property till partition. The appellant cannot claim the exclusive ownership of the land purchased by her and also estopped from taking the plea that no partition in respect of the joint land can be effected. The substantial question of law raised above stand answered as discussed above. In view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. August 20th , 2010 ( K.C.PURI ) JUDGE