IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 406 of 1995. Reserved on: 25.6.2008. Decided on: July 21, 2008. __________________________________________________ Amin Chand and others. … Appellants. Versus Amar Nath and others. … Respondents. ___________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Rahul Mahajan, Advocate. For Respondents : None. ___________________________________________________________ Rajiv Sharma, Judge. A challenge has been laid by way of this Regular Second Appeal to the judgment and decree dated 23.8.1995 passed by learned District Judge, Kullu in Civil Appeal No. 28 of 1995. The brief facts necessary for adjudication of this regular second appeal are that the predecessor in interest of respondents- plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a Civil Suit for declaration with consequential relief of injunction in the Court of Senior Sub Judge, Kullu on 15.6.1992. According to plaintiffs, the land measuring 5 biswas comprised in Khasra No. 1722, Khata Khatauni No. 89 min/135 min, as per copy of the jamabandi for the year 1983-84, situate in Phati and Kothi, Jagatsukh, Tehsil & District, Kullu, H.P. was recorded in joint ownership and possession of the plaintiff and defendant 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 No.1 and proforma defendant No.3 in equal share. It is further alleged that the suit property was joint, unpartitioned between the co-sharers for which civil suit No. 207/89 was filed. The suit was decided by Sub Judge Ist Class, Kullu on 27.2.1992 holding that the suit property was still joint and not partitioned. Despite these findings, defendant No.1 vide sale deed dated 19.5.1992 illegally sold the suit property to defendant No.2 although defendant No.1 had only 1/3rd title therein and was not competent to sell 2/3rd share therein of the plaintiff and proforma defendant No.3. Defendant No.3 has supported the plaintiff. Defendants No. 1 & 2 had filed their joint written statement. The trial Court dismissed the suit on 28.2.1995. The plaintiff feeling aggrieved and dis-satisfied with the judgment and decree dated 28.2.1995, preferred an appeal before the learned District Judge, Kullu. The learned District Judge, Kullu allowed the appeal on 23.8.1995. This regular second appeal has been preferred by the defendants No. 1 & 2. The regular second appeal was admitted on the following substantial questions of law: 1. Whether the Lower Appellate Court has mis-interpreted the sale deed dated 19.5.1992 as mentioned in pleadings by virtue of which the vendor/appellant Amin Chand conveyed only exclusive rights in Khasra No. 1722 as a ‘Hisadari’ in respect of 0.5 biswa of land as per jamabandi for the year 1983-84 to appellant/defendant No.2. The appellant/defendant No.1 also conveyed exclusive cultivatory rights as ‘Hisadar’. 2. Whether the Lower Appellate Court has fallen in error in interpreting that the cultivatory rights could not be conveyed and has confused it with ownerships rights of other co- sharers which the appellant/defendant No.1 never conveyed to appellant/defendant No.2. 3 3. Whether the lower Appellate Court ignored the basic principles of rights of exclusive ‘Hisadar’/co-shares as enshrined/stated in AIR 1961 Punjab 528 and other judgments AIR 1989 Allahabad 53, AIR 1972 Punjab & Haryana 208, i.e.: (a) 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. (b) 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 of partition or for actual joint possession, but not for ejectment. Same is the case where and co- owner sets up an exclusive title in himself. In other words the substantial question of law in this appeal is whether a co-share in possession of a particular Khasra Number can transfer the ‘Hisadari’ rights recorded in cultivation column with in share or beyond his share subject to final partition. 4. Whether the Sub Judge’s Court finding Ext. D-3 regarding arrangement of possession of a various parcel of land by parties operates as res judicata. 5. Whether appellant Court below has failed to appreciate the law and facts of the case in its true and proper perspective and thereby adversely affecting the rights of appellant/defendants. Mr. Rahul Mahajan, learned counsel for appellants has strenuously argued that the judgment and decree dated 23.8.1995 passed by the learned Additional District Judge, Kullu is not sustainable in the eyes of law. According to him, the property already stood partitioned and the sale deed dated 19.5.1992 is legal and valid. 4 I have heard Mr. Rahul Mahajan at length and have gone through the record carefully. The substantial questions of law being inter- connected are dealt with together to avoid repetition of referring to the evidence. The suit land is comprised in Khasra No. 1722 as per Jamabandi Ext. D-2 for the year 1988-89. The suit land is recorded in the joint ownership of the plaintiff and defendant No.1 Amin Chand and proforma defendant No.3 Des Raj to the extent of 1/3rd share each. The plaintiff had earlier filed a civil suit No. 207 of 1989 in the Court of learned Sub Judge Ist Class, Kullu qua the same land restraining the defendant-respondent Amin Chand and one Nand Lal from interfering and installing any kind of machinery and changing the nature of the suit land till partition on the ground that it was joint land of the parties. The judgment was rendered by the learned Sub Judge on 27.3.1992 (Ext.D-3). It was held by the learned Sub Judge that the suit land was joint. No appeal was preferred against the judgment and decree dated 27.3.1992. The findings recorded by the learned Sub Judge have attained finality. The defendant No.1 has sold the property to defendant No.2 vide sale deed dated 19.5.1992. The mutation was attested vide Ext. D- 2. The defendant No.1 could only sell his share in the suit land, i.e. 1/3rd. However, he has transferred the possession of the entire total land measuring 5 biswas. The defendant-Amin Chand could not sell the share of plaintiffs and proforma respondent-defendant No.3. Mr. Rahul Mahajan has strenuously argued that the suit land was partitioned and has relied upon the statement made by the plaintiff in the earlier proceedings. The learned Sub Judge 5 did not agree with this plea as is evident from the judgment Ext.D-3. The finding recorded by the learned Sub Judge was that the suit land continued to be in joint ownership. Mr. Rahul Mahajan has also contended that the suit land comprised in Khasra No. 1722 was a part of larger holding comprised in Khewat No. 105/89 min and Khatauni No. 148/135 in which Amin Chand has more than 5 biswas of land in his share and he could legally sell the land within his share from the total Khewat. This plea has been rightly considered and rejected by the First Appellate Court below. In the present case, the appellant Amin Chand had sold the entire Khasra No. 1722 in which the plaintiff and the proforma defendant No.3-Shri Desh Raj had 2/3rd share. The learned Appellate Court has correctly appreciated the documentary and oral evidence while reversing the judgment and decree passed by the learned trial Court. Consequently, there is no question of law much less any substantial question of law in the appeal and the same is dismissed. No costs. (Rajiv Sharma), J. July 21, 2008. (cr)