FIRST APPEAL No. 551 of 1977 Against the judgment and decree dated 19.7.1977 passed by Sri M.P.Tandon, Subordinate Judge, Purnea in Title Suit No. 20 of1976. KAMLA DEVI ………. Plaintiff/Appellant Versus SHANKAR LAL CHOUDHARY& ORS. ……… Defendants/Respondents ******** For the Appellant : Mr. Ramesh Jha, Advocate Mr. Bidhanesh Misra, Advocate Mr. Rajendra Kr. Jha, Advocate Ms. Taniya Mishra, Advocate For the Respondents : Mr. Yogendra Mishra, Advocate Mr. Ambrish Kumar Jha, Advocate Dated : 16th day of November, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The plaintiff has filed this First Appeal against a part of the judgment and decree dated 19.7.1977 passed by Sri M.P.Tandon, the learned Subordinate Judge, Purnea in Title Suit No. 20 of 1976 whereby the claim of the appellant i.e. declaration of exclusive title over Schedule-C land has been dismissed by the trial court. (2) For the purpose of this First Appeal, the facts may be stated in brief that the plaintiff filed the aforesaid suit claiming partition of her 8 Anna interest in the property described in Schedule A and B of the plaint and prayed for declaration that the lands described in Schedule-C of the plaint are exclusive property of the plaintiff and the defendants have got Mungeshwar Sahoo, J. 2 no right, title or interest therein. According to the plaintiff, the property as mentioned in Schedule-A, B and C belonged to one Dulari Sah, who died in 1958 leaving behind his daughter, the plaintiff and widow, the defendant no. 1. The widow and the daughter came in joint possession. Out of plot no. 1754 and 1765 measuring total 27 decimals, the plaintiff and the defendant no. 1 have gifted 14 decimals in favour of the husband of plaintiff by registered deed of gift dated 9.6.1960. The remaining 13 decimals of said plots is the exclusive share of the plaintiff and she is in actual possession of the same. The defendant, Sugo Devi who is mother of plaintiff has no right, title or interest nor possession over it. This property has been described in Schedule-C. (3) The defendant no. 1, Sugo Devi filed contesting written statement alleging that major portion of the property belonged to her as she purchased the same out of her own fund. After marriage of plaintiff, her husband became Gharjamai. Deed of gift was executed in his favour by the plaintiff and defendant with respect to 14 decimals of land. Therefore, Schedule-C property is the exclusive property of defendant. Accordingly, she has already sold Schedule-C property to Shankar Lal and ors. (4) It appears that subsequently plaint was amended and the purchasers were made party who also filed written statement contending that they have purchased Schedule-C property from defendant no. 1 through registered sale deed prior to institution of the suit. (5) After trial, the learned Court below found that the property belonged to Dulari Sah. On his death, plaintiff and defendant no. 1 inherited half and half and therefore, so far Schedule- A and B are concerned, granted the decree for partition. It may be mentioned here that we are not concerned with this part of the decree. The learned Court below, so far 3 Schedule-C property is concerned, held that the said property has been sold by defendant no. 1 prior to institution of the suit and the purchasers are in possession, therefore, the said property is not in existence and in possession of plaintiff and defendant no. 1. The learned Court below also found that the plaintiff has not prayed for cancellation of the sale deed and therefore, did not grant the relief regarding Schedule-C property. (6) The learned counsel for the appellant submitted that so far Schedule-C property is concerned, it measures 27 decimals. The plaintiff and defendant no. 1 jointly gifted 14 decimals to the husband of plaintiff. 13 decimals remained. So the plaintiff and the defendant no. 1 have got half share each in that 13 decimals and defendant no. 1 had no title to sell more than 6.5 decimals. In such circumstances, the sale deed executed by her in favour of the purchasers in excess of 6.5 decimals is void, but the learned Court below failed to consider this aspect and dismissed the suit. The learned counsel further submitted that alternatively, the plaintiff should have been granted partition decree regarding Schedule-C property. (7) It may be mentioned here that during the pendency of this appeal, the defendant no. 1 i.e. mother of the plaintiff died and her name has been expunged. Now, therefore, the share of defendant no. 1 also devolved on the plaintiff. (8) The learned counsel for the purchasers-respondents submitted that it has been found by the Court below that the property belonged to Dulari Sah. He died in 1958, therefore, both plaintiff and defendant no. 1 got half share each in all the properties. They jointly executed gift deed regarding 14 decimals in favour of husband of plaintiff. The defendant no. 1 sold the remaining 13 decimals to these purchasers. Admittedly, she was entitled the half share in the entire property which is more than 13 decimals 4 which she sold prior to institution of the suit. Therefore, the Court below has rightly rejected the prayer of the plaintiff. The plaintiff is also not entitled for partition because the property is not in joint possession i.e. the parties have neither unity of title nor possession. (9) In view of the above contentions of the parties, the only point arises for consideration in this appeal is as to “whether the plaintiff was entitled for a decree as claimed by her regarding Schedule-C property” and “whether the impugned judgment and decree are sustainable in the eye of law?” (10) It is the case of the plaintiff that the property in suit belonged to Dulari Sah i.e. the father of the plaintiff and husband of defendant no. 1. This suit has been filed by the plaintiff, daughter of Dulari Sah claiming half share in the property of Dulari Sah against her mother, defendant no. 1. So far Schedule-C is concerned, the case of the plaintiff is that the total area of the concerned plot was 27 decimals. Out of that, they jointly gifted 14 decimals to the husband of plaintiff. Therefore, both of them had half share each in remaining 13 decimals. On these grounds, the plaintiff claimed to be the exclusive owner of 13 decimals. The defendant no. 1’s case is that she has half share in the property of Dulari Sah and she was in possession of the property mentioned in Schedule-C and she sold the same to the strangers prior to institution of the suit. It may be mentioned here that the title or interest of the parties cannot be decided plot-wise. It is admitted fact that defendant no. 1 being the widow of Dulari Sah had half share in the entire property. After death of Dulari Sah, both of them jointly executed deed of gift regarding 14 decimals only. This gift was made prior to partition. Thereafter, prior to partition, the defendant no. 1 sold 13 decimals to the strangers who have been subsequently added as defendant. 5 (11) In such circumstances, it cannot be said that defendant no. 1 had no title over 13 decimals of Schedule-C property. The plaintiff has failed to establish that the said 13 decimals exclusively belonged to her. As stated above, the case is that the property belonged to Dulari Sah. On his death, the plaintiff and defendant no. 1 came in joint possession and they were co- owners. It appears that the plaintiff has not prayed for cancellation of the sale deed executed by defendant no. 1. Admittedly, since the property has been sold by defendant no. 1 prior to institution of the suit, the title vested on the purchasers as the defendant no. 1 who had title in the property inherited by her after death of Dulari Sah. In such circumstances, the plaintiff’s suit for simple declaration was not maintainable, since the property is in possession of the purchasers who have acquired title through registered document executed by the defendant no. 1 who had title to the property. (12) In view of my above discussion, I find that the learned Court below has rightly not granted any relief to the plaintiff regarding Schedule-C land. The finding of the learned Court below on this point is hereby confirmed. (13) In the result, I find no merit in this First Appeal and accordingly, it is dismissed. In the facts and circumstances, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 16th November, 2010 Saurabh/N.A.F.R.