Allowed

Kanahya Lal v. Kirpa Ram

Himachal Pradesh HC10 Dec 2014RSA/11/2004

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Himachal Pradesh addressed the validity of a sale where a co-sharer sold land exceeding their share. The Court held that a co-sharer cannot sell more than their defined share without partition.

What did the court decide?

The regular second appeal was allowed; the judgment and decree of the District Judge were set aside and the Senior Sub Judge's decree affirmed.

Kanahya Lal Vs Kirpa Ram — Partition | Himachal Pradesh HC (2014)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 11 of 2004. 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.

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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. 30-S/13 of 2003.

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According to the plaintiffs, the suit land comprising Khata/Khatauni No. 8 min/13 min, Khasra No. 87 measuring 4-3 bighas is situated in Mauja Dehal, Pargana Haripur, Tehsil and Distt. Solan, H.P. According to the plaintiffs, they were co-sharers to the extent of ½ share of land with defendant No. 1 Sh. Nathu Ram through LRs., namely, Beli Ram, Kala, Shalu and Gorkhu, who were brought on record during the pendency of the suit and Kirpa Ram (hereinafter referred to as the defendants). According to them, no partition has taken place, however, the defendant Nathu Ram in connivance with the revenue staff has sold the suit land exceeding his share thereby depriving the plaintiffs to exercise their right in

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the suit land. The suit land was sold, vide sale deed No. 542 dated 4.8.1987. The mutation was also attested on 19.9.1997.

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The suit was contested by the defendants. According to them, the plaintiffs were co-sharers of the suit land and the defendant No. 1 was in exclusive possession of the same. Therefore, he could execute the sale deed in favour of defendant No. 2.

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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 defendants through Kirpa Ram preferred 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.

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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. The plaintiffs were owners of ½ share of land and remaining half share was in the ownership of defendant No. 2 Nathu Ram. 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 entry of the land in revenue record was ‘ Ghasni ’. The registration was bad in law. 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. He has denied the suggestion in the cross-examination that land was earlier in possession of Kirpa Ram. He also denied the suggestion that before registry, this land was mortgaged with Kirpa Ram.

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Kirpa Ram has appeared as DW-1. According to him, he has purchased the suit land vide sale deed Ext. PX. The possession was handed over to him by Nathu Ram. The suit land abuts his land. He has verified the status of the land from Patwari. In his cross-examination, he deposed that he has purchased Kh. No. 87. He has neither apprised the plaintiffs nor sought their permission at the time of sale. The total area of Kh. No. 87 was 4 bighas 3 biswas. He has categorically admitted in his cross-examination that since defendant No. 1 was owner of only ½ share of the land, 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

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was not aware about the exact measurement of the land in possession between the co-sharers. He did not know the Khasra number on which Nathu Ram was in possession. He did not know that the land was ever partitioned. He had seen the revenue papers. He has not seen that Kh. No. 87 was ever partitioned.

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The defendants have placed on record, copy of the Jamabandi for the year 1976-77 Ext. D-4. In this Jamabandi, the plaintiffs alongwith the defendants have been shown as co-sharers over the suit land and possession has been shown with defendant Nathu as co-sharer. The defendants have neither pleaded nor claimed that any partition has taken place of the suit land before the execution of the sale deed dated 4.8.1987. Since the land was never partitioned, the plaintiffs as co-sharers have title over the suit land to the extent of ½ share and remaining ½ share was that of Nathu Ram. He could only sell his share.

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The learned first Appellate Court, has taken into consideration the revenue record. According to the revenue record, the land measuring 4 bighas 3 biswas of Kh. No. 87, the plaintiffs have also been shown as cosharers to the extent of ½ share with Sh. Nathu Ram defendant, in the column of ownership. The land has been sold to Kirpa Ram by Nathu Ram vide sale deed Ext. PX dated 4.8.1987. The defendants have not led any cogent evidence that the suit land was ever partitioned. There was no entry to this effect in the revenue records. The defendant Kirpa Ram has admitted in his cross-examination that since the defendant Nathu Ram was owner of ½ share of the suit land, he could sell this much portion only. He has verified the revenue records that Kh. No. 87 was never

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partitioned at the time of registration on 4.8.1987. It is not discernable from the judgment of the learned first Appellate Court that on what basis the first Appellate Court came to the conclusion that there was family settlement or partition. 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, (karan)

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( Rajiv Sharma ), Judge.

Kanahya Lal v. Kirpa Ram

Case brief

What is this about?

What did the court decide?

Kanahya Lal v. Kirpa Ram

Case brief

What is this about?

What did the court decide?

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