Rajiv Sharma, J.@mdashThis regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, H.P., dated 6.4.2005, passed in Civil Appeal No. 113-S/13 of 2002.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for declaration and for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants). The case set up by the plaintiffs is that the suit land was recorded in the ownership and possession of the plaintiffs and defendants No. 2 to 8 to the extent of their share 3/4 alongwith their mother Smt. Devki and sisters Godawari, Kalawati and Tarawati. Defendants No. 2 & 3 and father of defendants No. 4 to 8 have sold the entire land to defendant No. 1 through sale deed dated 20.3.1975 and mutation No. 141 was attested in the office of Assistant Collector, Grade II, Shimla. The defendants have no right to sell the share of the plaintiffs in the suit land and as such the alleged sale deed is null and void.
3. The suit was contested by defendant No. 1, namely, Parma Nand. According to him, Charan Dass, Amar Singh, Medh Ram and Devki were joint owners of land bearing khewat No. 23, khatauni No. 82 and 83 (kita-13) measuring 69 bighas and 10 biswas. Out of this land, Charan Dass, Amar Singh, Medh Ram and Devki Devi were in exclusive possession of Kh. No. 384, measuring 6 bighas and 18 biswas i.e. the suit land which they sold to defendant No. 1 through sale deed dated 20.3.1975 for consideration of Rs. 2000/- and defendant No. 1 was put in physical possession on the spot and thereafter mutation was also attested on 24.9.1977.
4. The learned trial Court framed the issues on 16.1.2002. The suit was partly decreed to the effect that the plaintiffs were co-owners in the suit land comprising khata khatauni No. 24/83, Kh. No. 384, total measuring 6 bighas 18 biswas, situated at Mauja Mohri, Pargana Kalhanj, Tehsil and Distt. Shimla, H.P., as per their shares and the sale deed Ext PW-1/E, registered in the office of Sub Registrar dated 20.3.1975 was null and void to the extent of the share of the plaintiffs in the suit land and the mutation No. 141 dated 24.9.1977 on the basis of sale deed was also wrong, null and void. Defendant No. 1, Parma Nand, preferred and appeal, feeling aggrieved, against the judgment and decree dated 2.12.2002. The learned District Judge, Shimla, partly allowed the same on 6.4.2005. Hence, this regular second appeal.
5. The regular second appeal was admitted on the following substantial question of law on 14.7.2005:
"1. Whether the lower appellate court ignored the provision of co-owner Rights in joint land and misread and misconstrued the documentary evidence, whereby it was held that sale deed executed by vendors from the joint land is legal and valid, whereas, they are not in exclusive ownership and possession of joint land?"
6. Mr. B.N. Sharma, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the sale executed by the defendants No. 2 & 3 and father of defendants No. 4 to 8 in favour of defendant No. 1 was null and void and the mutation thus could not also be attested in their favour from the joint land. On the other hand, Mr. Ajay Kumar, Sr. Advocate, appearing on behalf of defendant No. 1 has supported the judgment and decree passed by the learned District Judge, Shimla dated 6.4.2005.
7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully.
8. PW-1 Krishan Chand deposed that the disputed land measures 6 bighas 18 biswas. Kh. No. 384 was in joint ownership. He has proved copy of jamabandi Ext. PW-1/A, Ext. PW-1/B, PW-1/C and PW-1/D. The partition has not taken place. The defendants No. 2 & 3 have sold the land to defendant No. 1 without his consent. He did not know when the land was sold. Defendants No. 2 & 3 have no right to sell the land. The land was in his possession. However, he has admitted that defendant No. 1 used to cut grass occasionally from the suit land. In his cross-examination, he has categorically admitted that the defendant was cutting grass for the last 10-15 years and then he deposed that it was occasionally being cut by him. He was not aware about the date of mutation.
9. PW-2 Charan Dass deposed that he knew the parties. The land was in joint ownership. The land was sold to defendant No. 1 by Amar Singh and Charan Dass. The consent of the plaintiffs was not obtained at the time of sale. The possession was of the plaintiffs. The defendants have no right to sell the land. In his cross-examination, he has admitted that the land was sold for Rs. 2000/-. The possession was not handed over to defendant No. 1. The mutation was attested in the year 1977.
10. Defendant No. 1 Parma Nand has appeared as DW-1. He testified that he purchased land on 20.3.1975 from Charan Dass, Amar Singh and their mother Devki Devi. The sale deed was prepared. He has proved the same vide Ext. DW-1/A. The Kh. No. was 384, measuring 6 bighas 18 biswas. The land was purchased for a consideration of Rs. 2000/-. The possession was handed over to him. The mutation was attested in the year 1977. He has produced copy of jamabandies for the year 1973-74 Ext. PW-1/B, for the year 1968-69 Ext. PW-1/C, for the year 1999-2000 Ext. PW-1/d. Mutation is Ext. PW-1/E. He has fenced the suit land. In his cross-examination, he has admitted that when he purchased the suit land, he has seen the revenue record.
11. DW-2 Paras Ram, deposed that the defendants Charan Dass, Amar Singh and their mother Devki Devi have sold the land to defendant No. 1 measuring about 7 bighas.
12. DW-3 Ram Krishan deposed that defendant No. 1 has purchased the land from Charan Dass, Amar Singh and their mother Devki Devi. He was in possession of the same. He had seen the land. Sh. Charan Dass, Amar Singh and their mother Devki Devi, were owners of the land before the year 1975.
13. The sale deed is Ext. PW-1/E dated 20.3.1975. It has come on record that the vendors were in exclusive possession of the disputed land even though the partition had not taken place. DW-1 Krishan Chand has admitted, as noticed hereinabove, that defendant No. 1 was cutting the grass from the disputed land for the last 10-15 years. DW-1 Parma Nand has categorically deposed that immediately after the execution of the sale deed Ext. DW-1/A, he was put in possession. His statement was corroborated by DW-2 Paras Ram and DW-3 Ram Krishan. It has also come on record that vendors Charan Dass, Amar Singh and their mother Devki Devi were also owning some land other than the disputed land which was joint. According to the sale deed Ext. DW-1/E dated 20.3.1975, Charan Dass, Amar Singh and their mother Devki Devi were having 3/7th share in the total land measuring 69-10 bighas comprising of khewat No. 23 and khatauni Nos. 82 and 83.
14. Krishan Chand, while appearing as PW-1 has admitted in his cross-examination that there was total 80 or 85 bighas of land which was owned by 8 co-sharers. What emerges from the evidence led by the parties is that the plaintiffs were co-owners in the disputed land alongwith vendors Charan Dass, Amar Singh and their mother Devki Devi and the parties were also jointly owning some land measuring about 60 or 65 bighas. However, no partition had taken place. The land measuring 6-18 bighas was in exclusive possession of vendors Charan Dass, Amar Singh and their mother Devki Devi. Thus, it cannot be termed that the sale deed dated 20.3.1975 was illegal or void. The sale deed was to be given effect to at the time of partition of the land between the parties. It is not the case of the plaintiffs that vendors Charan Dass, Amar Singh and their mother Devki Devi have sold land more than their share in the joint land.
15. In the case of
"Question: Whether the sale of a specific portion of land described by particular Khasra numbers by a co-owner out of the joint Khewat would be a sale of share out of the joint land and pre-emptible under Section 15(1)(b) of the Punjab Pre-emption Act?"
"[5] The rights of a transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of Property Act which provides that where one or two or more co-owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor''s right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same but subject to conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. Again, it cannot be disputed that when a co-sharer is in exclusive possession of the specified portion of the joint holding, he is in possession there of as a co-sharer and all the other co-sharers continue to be in its constructive possession. By the transfer of that land by one co-owner, can it be said that other co-sharers cease to be co-sharers in that land or to be in its constructive possession. The answer obviously would be in the negative because try of the other co-share is can either seek a declaration from the Court as held in Sukh Dev''s case that the vendee is in possession only as a co-sharer or can initiate proceed--for partition of the joint holding including the tend transferred. If the other co-sharers continue to be co-sharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding. That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share cut of the joint holding, would be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, ''A'' who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers ''X'' and ''Y'' which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can he claim its possession from other co-owners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled to 10 bighas of land out of the share of his vendor at the time of partition or prior thereto to a decree for joint possession to the extent of the land purchased by him. Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the co-owners."
16. Mr. B.N. Sharma, Advocate, has relied upon the decision of this Court in the case of
17. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
