IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.7 of 1998 Date of decision : July 29, 2010 Mandu Ram (dead) through LRs …Appellant. Versus Smt. Chanji and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Romesh Verma, Advocate. For the Respondents : Mr. R.S. Jamalta, Advocate. Surjit Singh, J (Oral) This Regular Second Appeal, by the Legal Representatives of late Mandu, who was defendant No.1 in the suit, is directed against the judgment and decree dated 21st November, 1997 of learned Additional District Judge, whereby Mandu’s appeal against the judgment and decree dated 30th September, 1993, of the trial Court, decreeing the suit of plaintiffs-respondents, has been dismissed. 2. Respondent No.1-plaintiff Chanji filed a suit, challenging sale of land measuring 1059 square metres, bearing Khasra No.2018, made in favour of Mandu, the predecessor of the present appellants, by her brothers, impleaded as defendants No.2 and 3, alleging that the said land was joint of her and her two brothers Swaroo and Salmoo and, therefore, Swaroo and Salmoo were not Whether reporters of the local papers may be allowed to see the judgment? …2… competent to make sale of the entire property, which was jointly owned and possessed by her and her abovenamed two brothers. 3. Suit was contested by Mandu. He pleaded that a partition had taken place during the life time of the father of Chanji and her brothers Swaroo and Salmoo, who were the owners of the suit land and in that partition the suit land had fallen to the share of one of the vendors, namely defendant No.2, and, therefore, he was competent to make the sale. 4. Various issues were framed by the trial Court, based on the pleadings of the parties. Trial Court concluded that sale of the suit land could not have been made in favour of Mandu, without the consent of plaintiff Chanji, she being the co-sharer, to the extent of 1/3rd share. With this finding, a decree, declaring the sale as null and void and further declaring that the suit property was joint of the plaintiff and her two brothers Swaroo and Salmoo, was passed. Appeal filed by Mandu against the said decree stands dismissed by the first Appellate Court. 5. This appeal was admitted on the following substantial questions of law: “1. Whether in the facts and circumstances of the case, the sale deed Ex. P-B could be declared null and void when it specifically mentions that the appellant has purchased share of Respondent No.2 & 3 under the suit land. …3… 2. Whether under the law a co-sharer who intends to alienate his share in the joint holdings has to seek the consent of the other co-sharers. 3. Whether under the facts and circumstances of the case the suit filed by the plaintiff was maintainable in view of the fact that she was neither owner of the disputed land nor was in possession of the same. 4. Whether the findings are vitiated due to non-consideration of Pleadings and misappreciation of evidence.” 6. I have heard the learned counsel for the parties and gone through the record. 7. The two Courts below have given the finding that there had not been any partition, during the life time of Thotu, between the plaintiff and the vendors-defendants. This being a finding of fact and also it being concurrent needs to be accepted as such, especially when on the death of Thotu, mutation was attested, in respect of the suit property and other property held by him (Thotu), in favour of the plaintiff and her two brothers Swaroo and Salmoo. Therefore, there cannot be any reason to interfere with the finding of the two Courts below that the suit property was jointly owned by the plaintiff and her two brothers Swaroo and Salmoo. 8. However, simply on account of the suit property being joint of the plaintiff and her two brothers, the sale deed could not have been declared as null and void by the two Courts below. Sale deed is a lawful and valid document …4… of conveyance, with regard to the share of vendors Swaroo and Salmoo in the suit land and the deficiency in the area sold to Mandu can be made up from the rest of the joint property of the plaintiff and the vendors, which they have inherited from their father Thotu. Sale deed is to be treated as sale of vendors’, i.e. Swaroo’s and Salmoo’s, share, to the extent of 1059 square metres, out of the joint khata and not in respect of any particular Khasra number. 9. Two Courts below have taken the view that consent of plaintiff-respondent was required and her consent having not been obtained, the sale deed is a nullity. Of course, for the sale deed to be effective, in respect of any particular portion or particular khasra of the joint Khata, consent of plaintiff was necessary, but no consent is required for the sale of one’s own share by a co-sharer. Therefore, simply for the reason that the sale deed makes a mention of specific khasra number in it, it could not have been held that the sale was a nullity. The right finding on the question is that the sale is to be treated as sale by the vendors, in respect of their share in the joint khata, to the extent of the area mentioned in the sale deed, ignoring the reference to the specific khasra number. 10. Substantial questions of law, on which the appeal was admitted, are answered accordingly and the appeal is partly accepted and the decree of the trial Court is substituted by following decree. …5… Sale made by defendants-respondents Swaroo and Salmoo in favour of appellants’ predecessor is to be treated as sale, in respect of the share of said Swaroo and Salmoo in the joint khata, to the extent of the area mentioned in the sale deed and not the sale of any specific khasra number mentioned in the sale deed and plaintiff Chanji is declared as joint owner in possession, to the extent of her recorded share, i.e. 1/3rd Share, in the entire khata, including the suit land, i.e. land bearing Khasra No.2018. Appeal stands disposed of. July 29, 2010(sd) ( Surjit Singh ), J