IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.274 of 1998. Reserved on:24.10.2008. Decided on:14.11.2008. Prakash Chand …Appellant. VERSUS Smt.Pritma Kumari & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr Ajay Sharma, Advocate. For the respondents: Mr Ashutosh Burathoki, Advocate for respondents No.1(a) to 1(d). Kuldip Singh, Judge. The plaintiff has come in appeal against judgment, decree dated 30.5.1998 passed by learned Additional District Judge(1), Kangra at Dharamshala in Civil Appeal No.27-D/97 dismissing the suit of the plaintiff which was decreed by learned Senior Sub Judge, Kangra vide judgment, decree dated 25.2.1997 in Civil Suit No.80/95. 2. The facts, in brief, are that Parkash Chand had filed a suit for permanent prohibitory injunction restraining Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Raghubir Singh defendant from interfering and changing the nature of the land comprised in Khata No.6 and 7, Khatauni No.42 and 43, Khasra No.794 measuring 0-28-69 hectares situate in Up-Mohal Lehsar Mauza Yol, Tehsil Dharamshala District Kangra vide Jamabandi 1991-92. The pleaded case of the appellant is that he and other co-sharers are owners in possession of the suit land. The defendant Raghubir Singh had no concern in the suit land, who threatened to interfere by ploughing the suit land. 3. The suit was contested by Raghubir Singh by filing written statement. He took the plea that the suit was filed without cause of action. On merits, he pleaded that revenue entries were wrong and contrary to spot position. The suit land was jointly owned by parties and other co-sharers and was in possession of Raghubir Singh defendant and PanchamChand. He had sold 1/3rd part of the suit land to PanchamChand vide sale deed dated 23.6.1989. In revenue entries name of defendant had been wrongly deleted from the column of ownership and possession. The plaintiff has concealed material facts. The total land in joint Khata was 5- 43-46 Hectares, 1/3rd share of the defendant in the Khata comes to 1-81-15 Hectares. Raghubir Singh had also filed counter claim for permanent prohibitory injunction restraining …3… the plaintiff from interfering in the suit land or changing its nature in any manner. The plaintiff filed replication and reiterated his stand. The suit of the plaintiff was decreed and the counter claim of the defendant was dismissed by learned Senior Sub Judge on 25.2.1997 but in appeal on 30.5.1998 filed by Raghubir Singh the learned Additional District Judge dismissed the suit of the plaintiff and decreed the counter claim filed by defendant restraining the plaintiff from interfering in the possession of the defendant on the suit land till partition between the parties. The plaintiff has, thus, come in appeal which has been admitted on the following substantial questions of law:- i) Whether the co-sharer after selling his whole share out of the land in question can retain ownership and possession? ii) Whether learned first appellate Court below mis-read and mis-appreciated the facts and law applicable in the case in hand? iii) Whether a co-sharer can seek injunction to the extent of making construction and changing the nature of the land against other without getting the suit land partitioned? …4… iv) Whether provisions of para 8.37 and 8.65 of the H.P. Land Record Manual have been misread and mis-appreciated by the first appellate Court below, thereby vitiating the impugned judgment and decree? Raghubir Singh died during the pendency of the appeal and his legal representatives have been brought on record. 4. I have heard Mr.Ajay Sharma, learned counsel for the appellant, Mr.Ashutosh Burathoki, learned counsel for the legal representatives of Raghubir Singh respondent/ defendant and gone through the record. Mr.Ajay Sharma has submitted that Raghubir Singh had 1/3rd share in Khasra No.794 which he had sold to PanchamChand vide sale deed 23.6.1989 and after the sale Raghubir Singh had left no share in Khasra No.794. On the contrary, the appellant as co-sharer is owner in possession of Khasra No.794 but Raghibir Singh had left no right, title or interest in Khasra No.794 after he sold his share in Khasra No.794 to PanchamChand. He has submitted that learned Additional District Judge has not properly appreciated the legal position and has erred in dismissing the suit of the appellant. He has also submitted that learned Additional District Judge has erred in allowing the counter claim filed by Raghubir Singh which according to …5… him was not filed in accordance with law. Mr.Ashutosh Burathoki, learned counsel for legal representatives of respondent – defendant Raghubir Singh, has supported the impugned judgment, decree and has prayed for dismissal of the appeal. SUBSTANTIAL QUESTIONS OF LAW NO.(i) to (iv): 5. Since all the substantial questions of law are inter- connected, therefore, they are being disposed of collectively. The case of the appellant is that Raghubir Singh was having 1/3rd share in Khasra No.794 which he had sold to PanchamChand vide sale deed Ext.DW-1/A dated 23.6.1989. Mr.Ajay Sharma has submitted that as per sale deed Ext.DW- 1/A Raghubir Singh had sold 1/3rd share equivalent to 0-09-56 Hectares in Khasra No.794 measuring 0-28-69 Hectares to PanchamChand. Raghubir Singh had left no share in Khasra No.794 after he sold his share to PanchamChand and, therefore, during his life time Raghubir Singh after the sale deed Ext.DW-1/A and after the death of Raghubir Singh his legal representatives have no right or interest in Khasra No.794. The consistent defence of Raghubir Singh remained that he was not only co-sharer in Khasra No.794 to the extent of 1/3rd share but he was co-sharer also to the extent of 1/3rd share in the remaining Khata measuring 5-43-46 Hectares …6… equivalent to 1-81-15 Hectares. He had sold only 0-09-56 Hectares from Khasra No.794. He despite sale deed Ext.DW- 1/A continued to be co-sharer in the concerned Khata which has many Khasra numbers including Khasra No.794. The separate holding of the co-sharers would be determined at the time of partition. 6. The perusal of Ext.DW-1/A would show that Raghubir Singh had sold his 1/3rd share measuring 0-09-56 hectares in Khasra No.794. Ext.D-1 is the copy of Jamabandi 1986-87 in which in all 99 kitas (plots) total measuring 5-43- 46 hectares have been shown jointly owned and possessed by Prakash Chand, Janak Singh and Raghubir Singh. Khasra No.794 is part of joint holding as per Ext.D-1 owned and possessed by Prakash Chand, Janak Singh and Raghubir Singh. It is not the case of Prakash Chand plaintiff that land shown in Ext.D-1 including Khasra No.794 had been partitioned among the co-sharers. In Ext.D-1 Raghubir Singh has been shown in possession of Khasra No.794 along with some other Khasra numbers. 7. The contention of the appellant is that Raghubir Singh had sold his 1/3rd share in Khasra No.794 vide sale deed Ext.DW-1/A, therefore, he had left no right or interest in Khasra No.794. It is admitted position that Khasra No.794 is …7… part of big joint holding owned by co-sharers as per Ext.D-1. A co-sharer is owner of each parcel of the joint holding till it is partitioned. A co-sharer who is not in actual physical possession of a particular portion of the joint holding shall be deemed to be in possession of such joint holding through other co-sharer who is in actual possession. In absence of partition of joint holding, it cannot be said that Raghubir Singh had left no right or interest in khasra No.794 after he sold land measuring 0-09-56 hectares from Khasra No.794 vide sale deed Ext.DW-1/A. The separate holding of the co- sharers can be ascertained only by way of partition but in the present case joint holding including Khasra No.794 has not been partitioned among the co-sharers. In other words, it cannot be said that Raghubir Singh had left no interest after the sale in the suit land. No specific portion of Khasra No.794 was sold vide sale deed Ext.DW-1/A. Only an area measuring 0-09-56 hectares was sold from Khasra No.794 by Raghubir Singh. In absence of sale of specific portion from Khasra No.794 sale of land measuring 0-09-56 by Raghubir Singh vide sale deed Ext.DW-1/A would be construed as sale of land measuring 0-09-56 hectares by Raghubir Singh from his …8… share. In partition, the co-sharers would get separate specific portions as per settled principle of partition. 8. As per Para-8.37 of the H.P. Land Records Manual, the Revenue Officer shall refuse mutation of sale, gift, mortgage etc. if a co-sharer in a joint holding transfers specific Khasra number or its share which is not in his possession. Para-8.65 of the H.P. Land Records Manual is to the effect that if a sharer in a joint holding sells or mortgages the whole or a definite fraction of his share, the name of transferee will be shown in Column No.4 of the Jamabandi. Raghubir Singh continued to remain co-sharer along with the appellant in land shown in Ext.D-1 despite the fact that he had sold land measuring 0-09-56 hectares to PanchamChand, therefore, aforesaid paras 8.37 and 8.65 do not change the status of Raghubir Singh as co-sharer in land shown in Jamabandi Ext.D-1. In Sant Ram Nagina Ram versus Daya Ram Nagina Ram and others, AIR 1961 Punjab 528, it has been held:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of the joint property by one co-owner is in the eye of law, possession of …9… all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.” 9. In the present case, despite the sale of land measuring 0-09-56 hectares by Raghubir Singh he continued to remain co-sharer as per Jamabandi Ext.D-1. The effect of sale would be that land measuring 0-09-56 hectares sold by Raghubir Singh would be counted in his share at the time of partition. The learned Additional District Judge has rightly appreciated the material on record so far dismissal of the suit of the appellant / plaintiff is concerned. The learned counsel for the appellant has failed to make out any case for interference to this extent. There is, however, substance in the submission of learned counsel for the appellant that in fact Raghubir Singh predecessor of respondents had not filed any legally constituted counter claim and, therefore, learned Additional District Judge has erred in decreeing the counter claim. As per sub-rule (4) of Rule 6-A of Order 8 Code of Civil Procedure, the counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. I have gone …10… through the counter claim filed by Raghubir Singh in the present case. The perusal of counter claim would show that the counter claim has not been laid as per Order 8 Rule 6-A CPC. The necessary averments in support of the counter claim are completely lacking. The counter claim as laid cannot be construed as plaint. In the counter claim, minimum facts leading to cause of action have not been pleaded. The counter claim pleaded is in the shape of prayer. Raghubir Singh in his statement has not stated anything so as to entitle him decree on the basis of counter claim. In other words, Raghubir Singh has not proved the alleged counter claim. The learned Additional District Judge has not considered the legal position and has erred in allowing the counter claim and, therefore, impugned decree, judgment allowing the counter claim is not sustainable. The substantial questions of law (i) to (iv) are accordingly decided in favour of the appellant to the extent the learned Additional District Judge has allowed the counter claim only. 10. No other point was urged. 11. The result of the above discussion, the appeal is partly allowed. The judgment, decree dated 30.5.1998 passed by learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No.27-D/97 is modified to the …11… extent indicated above and suit of the appellant / plaintiff and counter claim of the respondents are dismissed with no order as to costs. November 14, 2008. ( Kuldip Singh ), J. (soni)