Suresh v. Banwari & Ors.

HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.A.K.Bishnoi, Advocate, for the appellant *** GURDEV SINGH, J. The appellant-Suresh, who is one of the legal representatives of Ram Chander, one of the plaintiffs in Civil Suit No. 400 dated

22.11.1996, has filed the present second appeal against the judgment and decree dated 13.5.2008 passed by Additional District Judge, Bhiwani, vide which he dismissed the first appeal preferred by the plaintiffs against the judgment and decree dated 7.2.2001 passed by Civil Judge(Junior Division), Siwani, District Bhiwani, dismissing their suit for declaration to the effect that they are the co-owners in possession of the land comprised in Khasra No. 610(3-1) situated in the revenue estate of village Mauja Barwa, Tehsil RSA No.268 of 2009 (O&M) -2- Siwani District Bhiwani and that the sale deed dated 31.5.1988 and Mutation No. 4553 dated 26.6.1988 sanctioned on the basis of that sale deed in favour of respondents No. 4 and 5-defendants No. 4 and 5 and sale deed dated 9.8.1996 and Mutation No. 4959 dated 24.10.1996 sanctioned on the basis thereof in favour of respondents No. 1 to 3, are illegal, null and void and not binding on their rights and also their suit for injunction restraining defendants No. 1 to 3 from taking forcible possession of the land in dispute and interfering in their possession over the same. The suit was filed by Ram Chander, Mahipal Singh, Santosh Singh, Ravinder Singh, Subhash Singh, Bimla and Nirmala Devi, sons and daughters of Mehtab Singh. During the pendency of the suit, Ram Chander died and his legal representatives were brought on the record. They pleaded in the plaint that they are in possession of the land in dispute as co- sharers after the death of their father. Defendants No. 4 and 5 have no right to sell this land and they came to know about the above said sale deeds and mutations about 10 days before the filing of the suit when the defendants tried to eject them from this land. The suit was contested by respondent No. 1 to 4. Joint written statement was filed by respondents No. 1 to 3, which was adopted by defendant No. 4. They pleaded therein that the suit land was sold in favour of defendant No. 4, vide sale deed dated 31.5.1988, during the life time of Mehtab Singh, and possession thereof was delivered to him. That defendant further sold that very land to the other defendants. The sale was by way of specific Khasra number and the possession was also delivered to the vendees. The co-sharers have been selling specific khasra numbers and even Mehtab Singh had sold specific khasra number out of the total joint RSA No.268 of 2009 (O&M) -3- land, on which they were in settled possession. After the sales were effected by Mehtab Singh out of the joint land he has been left only with 0 kanal 04 marlas. Even the khasra girdawari was recorded in their names as they were coming in possession thereof. The land measuring 1300 Kanals and 18 Marlas was mutually partitioned between the co-sharers, who sold specific khasra numbers after that partition. Therefore, the plaintiffs cannot challenge the sale deeds so executed in their favour and the mutation sanctioned on the basis thereof. In replication to the written statement, plaintiffs denied all the contentions made therein and reiterated their averments made in the plaint. On the pleadings of the parties following issues were framed by the learned trial court:-

1. Whether the plaintiff is co-owner in possession of the land described in para No. 1 of the plaint? OPP

2. Whether the defendants have no right on a particular khasra number as co-sharers till the land is not partitioned by metes and bounds? OPP

3. Whether the defendants have no right to sell the specific killa numbers in the suit land? OPP

4. Whether the sale deed dated 31.5.1988 and sale deed dated 9.8.1996 are null and void? OPP

5. Whether the mutation No. 4353 sanctioned further through sale deed be declared null and void? OPP

6. Whether the suit of the plaintiff is barred by limitation? OPD

7. Whether the seller was in settled possession regarding RSA No.268 of 2009 (O&M) -4- the suit land which he sold to defendants No. 1 to 3?

8. Relief After going through the evidence produced by the parties in support of their respective pleas and hearing counsel on their behalf, learned trial court recorded the findings on the above said issues and as a result of the cumulative effect of those findings, dismissed the suit of the plaintiffs. The first appeal, as already said above, preferred by the plaintiffs against that judgment and decree of the trial court was dismissed. I have heard learned counsel for the appellant. It has been submitted by counsel for the appellant that the findings have been recorded by the lower court against the evidence produced by the plaintiffs. They successfully proved on the record that the land in dispute is still joint between the parties and they are coming in exclusive possession thereof and that the same was never partitioned. According to him, substantial questions of law are involved in the present appeal on account of the fact that the findings of the lower courts are based upon the misreading of the evidence and non-consideration of the material evidence. Learned counsel for the appellant was not able to satisfy this Court as to how there is force in the submission so made by him. On the basis of the evidence produced by the parties, correct findings were recorded by the lower courts that all the co-sharers had been selling specific khasra numbers out of the joint land and delivering the possession of those khasra numbers to the vendees. It is a matter of common knowledge that for beneficial use of the joint land, co-sharers usually enter into mutual arrangement under which they enter into possession of different parcels of RSA No.268 of 2009 (O&M) -5- the joint land. Any co-sharer in possession of specific part of the joint land can convey a valid title therein in favour of his vendee. Keeping in view that well settled proposition of law, the findings were recorded by the lower courts. There is no such misreading of the evidence while recording those findings nor it can be said that any such evidence produced by the plaintiffs was not considered by those courts while recording those findings. No substantial question of law arises in this appeal and the same is dismissed accordingly. (GURDEV SINGH) JUDGE November 26, 2010 PARAMJIT