Allowed

Kanahya Lal Son of Shri Daya Ram v. Kirpa Ram Son of Shri Deep Ram

Himachal Pradesh HC10 Dec 2014RSA/10/2004

Case brief

AI extract

What is this about?

In a regular second appeal regarding property dispute, the High Court of Himachal Pradesh held that a co-sharer could not sell more than his share absent proof of partition. The court allowed the appeal, setting aside the first appellate court's decree which confirmed the sale of the entire land.

What did the court decide?

The regular second appeal is allowed; the judgment and decree of the first appellate court dated 14.11.2003 are set aside; the judgment and decree of the Senior Sub Judge dated 26.9.2002 are affirmed.

Kanahya Lal Son of Shri Daya Ram Vs Kirpa Ram… — Property and Title | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 10 of 2004.

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Reserved on: 08.12.2014. Decided on: 10.12.2014. Sh. Kanahya Lal & ors. ……Appellants. Versus Sh. Kirpa Ram & ors. …….Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting? Yes. For the appellant(s): Mr. Neeraj Gupta, Advocate. For the respondents: Mr. K.D.Sood, Sr. Advocate, with Mr. Mukul Sood, Advocate, for respondent No. 1. ---------------------------------------------------------------------------------------------- Justice Rajiv Sharma, J.

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This regular second appeal is directed against the judgment and decree of the learned District Judge, Solan, dated 14.11.2003, passed in Civil Appeal No. 31-S/13 of 2003.

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Key facts, necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs, for the convenience sake), have instituted a suit against the predecessor-in-interest Sh. Nathu Ram of respondents-defendants (hereinafter referred to as the defendants), Beli Ram, Kala, Shalu and Gorkhu. The predecessor-in-interest died during the pendency of the suit before the learned Senior Sub Judge, Solan, thus his legal representatives, namely, Beli Ram, Kala, Shalu and Gorkhu were brought on record. According to the plaintiffs, the suit land comprised in Kh. No. 92 measuring 2-15 bighas situated in Mauja Dehal, Pargana Haripur, Tehsil and Distt. Solan, H.P. The plaintiffs have claimed to be the joint owners in possession

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of the suit land with defendant No. 1 Nathu Ram to the extent of ½ share of land. The land was never partitioned, however, defendant Nathu Ram predecessor-in-interest of defendants, namely, Beli Ram, Kala, Shalu and Gorkhu, in connivance with the revenue staff have sold the suit land exceeding to his share to defendant No. 2 Sh. Kirpa Ram, vide sale deed No. 100 dated 1.3.1983. The mutation was attested on 28.4.1983. The plaintiffs have also pleaded and claimed that the defendants have no right, title to change the nature of the suit land and claimed joint possession with defendant No. 2, to the extent of his share.

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The suit was contested by defendant No. 2. According to him, Nathu Ram had mortgaged the suit land with possession prior to the sale thereby the plaintiffs have no right, title or interest over the suit land. The defendant has denied any interference with the suit land. According to him, the plaintiffs have no right to sale proceeds of ‘ Khair” tree.

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The replication was filed by the plaintiffs. The learned Senior Sub Judge, Solan, framed the issues on 2.5.1997. The learned Senior Sub Judge, Solan, decreed the suit on 26.9.2002. The defendant Kirpa Ram preferred an appeal against the judgment and decree dated 26.9.2002 before the learned District Judge, Solan. The learned District Judge, Solan, allowed the appeal and set aside the impugned judgment and decree vide judgment dated 14.11.2003. Hence, this regular second appeal.

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This regular second appeal was admitted on the following substantial question of law on 12.10.2004:

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“Whether a co-sharer even if found in exclusive possession of the whole of the land can validly sell the area more than his share in such land?

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Mr. Neeraj Gupta, Advocate, has supported the judgment and decree of the learned trial Court dated 26.9.2002. According to him, defendant Nathu Ram could only sell the land falling to his share to defendant Kirpa Ram. On the other hand Mr. K.D. Sood, learned Senior Advocate, alongwith Mr. Mukul Sood, has supported the judgment passed by the learned first Appellate Court dated 14.11.2003.

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I have heard the learned Advocates for the parties and gone through the records of the case carefully. 8. One of the plaintiffs Sh. Kanhaya Ram has appeared as PW-1. According to him, Sh. Bhagat Ram and Sh. Bharat Ram were his real brothers. The suit land was joint. The ½ share of the land is owned by defendant No. 1. They have joint ownership and possession. The land was never partitioned. The defendant No. 1 has sold this land to defendant No. 2. He had only right to sell his share. The defendant No. 1 has only ½ share in Kh. No. 92. The entry/classification of the land was ‘ Ghasni ’. The registration was illegal. The mutation attested on the basis of the registration was also bad in law. They came to know about the sale in the year 1995. Thereafter, he collected the documents. He proved copy of mutation Ext. PW1/B and copy of the sale deed as Mark-A. He has denied the suggestion in the cross-examination that Nathu Ram was in possession of entire Kh. No. 92.

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Kirpa Ram has appeared as DW-1. According to him, he was owner of the suit land. He has purchased this land from Nathu vide Ext. PX. The possession was handed over to him by Nathu Ram. Before that, the land was in possession of Nathu Ram. The suit land adjoins his land. He has verified the status of the land from Patwari. Nathu Ram was in exclusive possession of the suit land. In his cross-examination, he deposed that he has purchased Kh. No. 92. He has seen the revenue papers. He admitted in his cross-examination that Nathu Ram was owner of ½ share of the land and thus, he could only sell his share. Volunteered that since he was in possession of the entire suit land, he could sell the entire suit land. He did not know the nature of the joint ownership of the land between the parties. Volunteered that it could be 34-35 bighas which would be in joint ownership. He did not know of which khasra number, plaintiff and defendant Nathu Ram were in possession.

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A copy of the sale deed dated 1.3.1983 is Ext. PX. The defendants have placed on record copy of Jamabandi for the year 1976-77 Ext. D-1, copy of Jamabandi for the year 1985-86 Ext. D-2, copy of Jamabandi for the year 1990-91 Ext. D-3, copy of Jamabandi for the year 1981-82 Ext. D-4, copy of Jamabandi for the year 1985-86 Ext. D-5. According to the recital in the Sale deed Ext. PX, the vendor was having ½ share over the suit land but having possession in the family partition. He sold the entire suit land. According to the defendant- Kirpa Ram, he is a bonafide purchaser. He has got the status of the land verified from the Patwari. The defendant has neither pleaded nor proved that there was any family arrangement/partition of the suit land at the time of effecting sale deed

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on 1.3.1983. The plaintiffs and defendant No. 1 Nathu Ram have been shown as co-sharers having ½ share and remaining the plaintiffs have been shown owner to the extent of ½ share, as per Jamabandi for the year 1976-77. However, the fact of the matter is that the sale deed has been executed qua the entire suit land. The share of Nathu Ram was only 1 bigha 7 biswas.

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PW-1 Kanhaya Ram has categorically deposed that the land was in joint ownership and he alongwith the defendant Nathu Ram was cosharers. The land was never partitioned. DW-1 Kirpa Ram has admitted in his cross-examination that since the defendant No. 1 was in possession of ½ share, he could sell his share only. He was not aware as to whether Kh. No. 92 was ever partitioned, as per the revenue papers. He has not seen the revenue papers to ensure that Kh. No. 92 was ever partitioned. He has also admitted that at the time of registration, he has not sought the permission of the plaintiff nor he has apprised him of this fact. The defendants have failed to prove that the land was ever partitioned. The learned first Appellate Court has taken into consideration the revenue record i.e. Jamabandis Ext. D-1 to D-5. According to these entries, the plaintiffs have been shown as co-sharers with Sh. Nathu Ram in the column of ownership. According to the learned first Appellate Court, it appeared that the family arrangement has taken place, whereby the parties came into separate possession of the joint holding. There is no contemporaneous material placed on record to establish the partition or family arrangement qua the suit land. The defendant Nathu Ram was never in exclusive possession of the whole of the suit land. Thus, he could sell only ½ share of the suit land and not the entire suit land. The substantial question of law is answered accordingly.

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Consequently, the regular second appeal is allowed. The judgment and decree passed by the learned first Appellate Court dated 14.11.2003 is set aside. Judgment and decree of the learned Senior Sub Judge, Solan, dated 26.9.2002, is affirmed.

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December 10, 2014, ( Rajiv Sharma ), (karan) Judge.

Kanahya Lal Son of Shri Daya Ram v. Kirpa Ram Son of Shri Deep Ram

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Kanahya Lal Son of Shri Daya Ram v. Kirpa Ram Son of Shri Deep Ram

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