R.S.A.No. 3469 of 2002 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 4.11.2009 R.S.A.No. 3469 of 2002 (O&M) Layak Ram ......Appellant Versus Dharamwati and others .......Respondents R.S.A.No. 3470 of 2002 (O&M) Layak Ram ......Appellant Versus Daulti and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ashok Kumar Singh, Advocate and Mr.Shiv Kumar, Advocate, for the appellants. Mr.R.S.Mittal, Sr.Advocate with Mr.Atul Gaur, Advocate for respondents No. 1,2,5 and 6. Mr.Anand Bhardwaj, Advocate, for respondents No.3 and 4. **** SABINA, J. Vide this judgment, RSA Nos. 3469 and 3470 of 2002 R.S.A.No. 3469 of 2002 (O&M) 2 would be disposed of as these have arisen out of same civil suit. Plaintiff Layak Ram filed a suit for declaration with consequential relief of perpetual injunction, which was decreed by the Civil Judge (Sr.Divn.), Gurgaon vide judgment and decree dated 21.2.2000. Aggrieved by the same defendants No.1 to 4 filed Civil Appeal No.30 of 23.3.2000 and defendants No. 5 and 6 filed Civil Appeal No. 41 of 28.3.2001. Both the said appeals were allowed by the Additional District Judge, Gurgaon vide judgment and decree dated 16.4.2002 and the suit of the plaintiff was dismissed with costs. Hence, the present appeals by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 8 to 10 of its judgment, are as under:- “8. Suit of the plaintiff Layak Ram is that ½ share of total land measuring 48 Bighas 19 biswas fully described in para No.1 of the plaint was owned and possessed by his father Ramla, which was ancestral joint Hindu family coparcenary property. Ramla died in 1977 leaving behind plaintiff Layak Ram, his only son, Smt. Phoolwati his widow and daughter Smt. Daulti defendant No.1 Mother Smt.Phoolwati and sister Smt.Daulti, abandoned and relinquished all their rights titled or interest in the suit property in favour of plaintiff Layak Ram about 13 years back. But, mutation of inheritance No.301 was sanctioned on 14.9.1978 in favour of plaintiff R.S.A.No. 3469 of 2002 (O&M) 3 Layak Ram, mother Smt.Phoolwati and sister Daulti, in equal, which is illegal, invalid and not binding upon his rights as at the time of death Ramla had only 1/4th share. Other 1/4th share of Ramla was heritable in favour of his three LRs in equal i.e. 1/12th in each. Therefore, showing Phoolwati, and Smt.Daulti owners to the extent of 1/6th was illegal, invalid and not binding upon his rights. Phoolwati has also died. Her share devolved upon the plaintiff and Daulti in equal. It is further pleaded that in order to harm the interest of the plaintiff, Smt.Daulti suffered consent civil court decree dated 26.3.1990 in civil suit No.400 of 1990 titled Chanderpal Nagar versus Daulti in favour of her husbnand Chanderpal Nagar defendant No.2. They executed impugned lease deed dated 7.11.1990, for a period of 90 years in favour of Gordhan defendant No.3, regarding 1/6th share measuring 8 Bigha, 3 Biswas. Chanderpal Nagar also sold 1/12th share measuring 4 Bigha, 1.5 Biswas of the suit land to Shama defendant No.4 and Smt.Dharamwati defendant No.5 vide impugned sale deed dated 9.11.1990 and further sold remaining 1/12th share measuring 4 bigha 1.5 biswas to Shama defendant No.4 and Smt.Dharmawati defendant No.5 and Surender, defendant No.6 vide another impugned sale deed dated 13.11.1990. The R.S.A.No. 3469 of 2002 (O&M) 4 plaintiff has challenged the legality and validity of said consent decree dated 26.3.1990, as well as these three alienation and has prayed for consequential relief of permanent injunction restraining the defendants from interfering into his ownership and possession and also for restraining them from further alienating his suit land. 9. Smt.Daulti defendant No.1 and her husband Chanderpal defendant No.2 filed their joint written statement. They admitted their relationship with the plaintiff, but, pleaded for the legality and validity of the impugned decree, as and as of impugned alienation in favour of other defendants. They also took various preliminary objections regarding maintainability of the suit in the present form, locus standi of the plaintiff, misjoinder and nonjoinder of parties, want of cause of action, estopped and that the plaintiff has not come to the Court with clean hands. 10. Gordhan defendant No.3 separately Smt.Shama defendant No.4, Smt. Dharamwati defendant No.5 and Shri Surender defendant No.6 jointly, filed their separate, two written statements, again pleading for the legality and validity of the impugned decree and impugned alienation. They also took same preliminary objections and pleaded that they R.S.A.No. 3469 of 2002 (O&M) 5 are bonafide purchasers for valuable consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is owner co-sharer in possession to the extent of ½ share of the disputed land? OPP 2. Whether the disputed land is ancestral property joint Hindi Coparcenary of the plaintiff ? OPP 3. Whether the defendant No.1 Smt.Daulti abandoned and relinquished all rights, title and interest in the suit land in favour of the plaintiff more than 13 years ? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 7. Whether the plaintiff has no cause of action to file the suit? OPD 8. Whether the plaintiff has not come in the Court with clean hands in the court and concealed the material facts from the Court? OPD 9. Whether the plaintiff is estopped from filing the R.S.A.No. 3469 of 2002 (O&M) 6 present suit by his own act, conduct and acquiescence and laches? OPD The following two additional issues were framed vide order dated 27.1.2000:- 9-A Whether the suit is barred by time? OPD 9-B Whether the defendants No.3 to 6 are bona fide purchase/pattedar for consideration of the suit land? OPD 10. Relief. ” These appeals were earlier dismissed by this Court vide order dated 21.2.2006. The same have been remanded back by the Apex Court and the order dated 7.7.2008 reads as under:- “ Leave granted. Heard learned counsel for the parties. Before us, learned counsel contends that two substantial questions of law, namely (i) the effect of Section 41 of the Transfer of Property Act; (ii) the effect of Section 27 of the Limitation Act, 1963 would arise for consideration before the High Court. Having heard the learned counsel, we are of the opinion that the impugned judgment should be set aside and the matter should be remitted to the High Court for consideration of the matter afresh. We, however, must observe that the High R.S.A.No. 3469 of 2002 (O&M) 7 Court would formulate appropriate questions of law only upon satisfying itself as regards the existence thereof. We would request the High Court to consider the desirability of disposing of the matter as expeditiously as possible. The appeals are allowed with the aforementioned observations.” Learned counsel for the appellant has submitted that the following substantial questions of law arise in this case:- “1. Whether there is misreading of facts and evidence by the learned first appellate Court while ignoring the material and relevant piece of documentary evidence which is serious error in law vitiating effect on the findings? 2. When both the Courts i.e. learned trial Court as well as first Appellate Court have held that the suit for declaration filed by the plaintiff is within time and the suit land being ancestral coparcenary property the plaintiff has got 3/8 share and the defendant Daulati only 1/8 share out of 48 bigha and 19 biswa then whether any sale made by her in excess to aforesaid her share is binding on the plaintiff and sustainable under the law? R.S.A.No. 3469 of 2002 (O&M) 8 3. Whether the respondents purchasers from Daulati can be declared bonafide purchasers ? 4. Whether the sale made by Daulati in excess of her share would be protected by the provisions of Section 41 of Transfer of Property Act ? 5. When mere mutation in the revenue records does not confer any title, then whether the sale/transfer of the said property, on the basis of such mutation can transfer/confer any title on the purchaser ? 6. Whether the purchasers who purchased the property without verifying the ownership and possession of the immovable property can claim the benefit of Section 41 of the Transfer of Property Act? 7. Whether the judgment and decree passed by the learned first Appellate Court is perverse? Learned counsel for the appellant has submitted that defendant No.2 could not sell the property beyond the share of defendant No.1. The subsequent vendees could not be said to be bona fide purchasers. In support of his argument, learned counsel has placed reliance on the decision of the Apex Court in Kashmir Singh and others vs. Panchayat Samiti, Ferozepur and others (2004) 6 Supreme Court Cases 207, wherein, it was held that a vendee was not entitled to protection under Section 41 of the Transfer of Property Act, 1882 (for short ‘the Act) where he new that R.S.A.No. 3469 of 2002 (O&M) 9 respondent Samiti and not the State Government was the owner of the land. Learned counsel for the respondents, on the other hand, have submitted that the vendees were bona fide purchasers for consideration and hence, the judgment and decree of the lower Appellate Court were liable to upheld. After hearing learned counsel for the parties, I am of the opinion that there is no merit in these appeals and the same deserve to be dismissed. The plaintiff had filed a suit for declaration with consequential relief of permanent injunction. The claim of the plaintiff is that he was co-owner in possession to the extent of half share in the suit property. The sale deeds executed by defendant Nos. 1 and 2 in favour of defendants No.3 to 7 were challenged by the plaintiff. It was also alleged that the collusive decree suffered by defendant No.1 in favour of defendant No.2 was not binding on the plaintiff. Admittedly, the property in dispute was owned by Ramla to the extent of 1/4th share. He died in the year 1977. The case of the plaintiff is that since the property in the hands of Ramla was ancestral property, after the death of Ramla 1/3rd share out of the property owned by Ramla could not be entered in the revenue record in favour of his sister Daulti. Both the Courts below have held that the property in the hands of Ramla was his ancestral property. Hence, the question that R.S.A.No. 3469 of 2002 (O&M) 10 requires consideration is as to whether purchasers who had purchased land from the husband of Daulti were bona fide purchasers or not. Section 41 of the Transfer of the Property Act reads as under:- “41. Transfer by ostensible owner:- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” The mutation of inheritance of Ramla was sanctioned in favour of his daughter Daulti, widow and plaintiff to the extent of 1/3rd share. After the death of Phoolwati, the share of Daulti thus increased to 1/24 share in the suit property. The respondents vendees had apparently made inquiry from the revenue record and on satisfying themselves that as per the revenue record Daulti was owner of half share in the suit property had purchased the same. The mutation of inheritance was sanctioned in favour of Daulti after the death of Ramla in the year 1977 and thereafter the revenue record reflected her as owner to the extent of ½ share in the suit R.S.A.No. 3469 of 2002 (O&M) 11 property. The plaintiff did not challenge the entries in the revenue record prior to the execution of the sale deeds by the husband of Daulti in favour of the vendees. Learned counsel for the appellant has failed to point out as to which other enquiry the vendees could have conducted to ascertain the title of the vendor apart from checking the revenue record. The plaintiff was a co-sharer with the vendor and hence, cannot be said to be owner of share of his sister by way of adverse possession. It has been held by this Court in the case Sant Ram Nagina Ram vs. Deva Ram Nagina Ram and others AIR 1961 PB 528 as under:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner, is in the eye of law, possession of 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. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to R.S.A.No. 3469 of 2002 (O&M) 12 negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. 9. Where a portion of the joint property is by common consent of the co-owners reserved for a particular common purpose, it cannot be diverted to an inconsistent R.S.A.No. 3469 of 2002 (O&M) 13 user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed.” Thus, a co-sharer in exclusive possession cannot become owner qua the share of the other co-sharers on the ground of adverse possession unless ouster is proved. However, in the present case, the learned counsel for the appellant has failed to point out that the plaintiff had ousted the other co-sharer/vendor from the suit land or that the vendor had abandoned his share in the suit property. In these circumstances, the Additional District Judge had rightly held that the subsequent venders were bona fide purchasers for consideration. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE November 04, 2009 anita