Jammu & Kashmir High Court
Kuldeep Singh vs Sant Nirankari Mandal & Ors. on 16 November, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CIMA No. 501/2013
MP Nos. 28/2014 & 946/2013
Date of decision: 16.11.2017
Kuldeep Singh vs. Sant Nirankari Mandal & ors.
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing counsel:
For the appellant/petitioner(s) : Mr. U.K.Jalali, Sr. Adv. with
Ms. Shivani Jalali & Mr. Narinder Atri, Advocates.
For the respondent(s) : Mr. K.S.Johal, Sr. Advocate with
Mr. J.I.Balwan, Advocate.
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes/No
1. Plaintiff is in appeal against order dated 03.12.2013, whereby learned District Judge, Kathua has dismissed his application for temporary injunction in a suit for declaration and permanent prohibitory injunction or in alternative enforcement of the right of prior purchase filed by him against the respondents.
2. Heard Mr. U. K. Jalali, learned Senior Advocate, appearing for the appellant (plaintiff) and Mr. K. S. Johal, learned Senior Advocate, appearing for the respondents (defendants) and perused the record.
3. Appellant and respondents 2 to 9 are siblings and respondent No.10 is their mother. By virtue of a Sale Deed executed on 10.01.2013 and registered on 14.01.2013 (for short, the suit sale CIMA No. 501/2013 Page 1 of 8 deed), respondents 2 to 10 sold land measuring 5 kanals and 11 marlas comprised in Khasra No. 110 min (3 K and 4.5 M) and Khasra No. 97 min (2 K and 6.5 M) situate at village, Muthi, Rakwalan, Tehsil, Kathua (for short, the suit land) to respondent No.1. The appellant in the suit filed by him has challenged the suit sale deed and seeks its declaration as null and void on the grounds that the suit land is ancestral and joint Hindu family property of the appellant and respondents 2 to 10, having been inherited by them from the father of the respondents 2 to 9, late Sh. Munshi Singh, which could not have been sold, except for legal necessity of the family. Sale, if any, could have been made by the appellant only being Karta of the joint family. The sale deed is challenged also on the ground that the suit land is irrigated paddy growing land and could not have been sold beyond 4 kanals under law. Fraud was committed in getting the sale deed executed and registered against the statutory provisions. It is contended also that the suit land is joint and unpartitioned and no specific and individual portion thereof can be stated to be owned and occupied by a particular co-sharer. The plaintiff in alternative has challenged the sale deed on the basis of his right of prior purchase being a co-sharer and co-owner qua the suit land.
4. The stand taken by the respondents (defendants) in their written statement is that the suit land was in exclusive possession of respondents 2 to 7. Existence of any joint family, with appellant as Karta, has been denied and it is contended that all the siblings CIMA No. 501/2013 Page 2 of 8 have their independent families, though respondents 6 & 7, who are unmarried, are living with their mother. The specific stand taken by the respondents is that Sh. Munshi Singh was owner of land measuring 55 kanals and 15 marlas situate at village, Muthi Rakwalan and after his death his estate devolved upon the appellant and defendants 2 to 10. Share of the appellant measured 7 kanals 13 marlas but he was not in physical possession of any land comprised in Khasra Nos. 110 min and 97 min out of which the impugned sale deed has been executed. The land comprised in these two Khasra numbers was in cultivating possession of respondents 2 to 7 exclusively. Respondents have challenged maintainability of the suit on the ground that possession of the suit land has been transferred by respondents 2 to 7 to respondent No.1 but consequential relief of possession has not been sought by the appellant and suit for declaration alone is not maintainable.
5. Learned trial court in the impugned order has noticed some admitted facts. These inter alia are that as per the available revenue record on the file, respondents (defendants) 2 to 10 were the owners in possession of the suit land, whereas the appellant (plaintiff) though a share holder with respondents 2 to 10, was not shown to be in possession of his rightful share even. The trial court has observed that respondents 2 to 10 sold the land out of their rightful share, which was in their possession and respondent No.1 is a bona fide purchaser. Learned trial court noticed also that "it is not the case of the plaintiff that he was in possession of entire ancestral property." Learned trial court rejected appellant's CIMA No. 501/2013 Page 3 of 8 contention that respondents 2 to 10 could not have sold their shares in the joint holding and took the view that as respondents 2 to 10 were in possession of their rightful shares, there was nothing wrong in selling their rightful shares. Learned trial court noticed also that rightful share of the plaintiff was left untouched even though he is not recorded in possession of any land. Learned trial court, thus, was of the view that there was no prima facie case in favour of the appellant (plaintiff).
6. Appellant assails the impugned order mainly on the grounds that the respondent No.1 (vendee) is a Non-State Subject, who could not have purchased immovable property in the State of Jammu and Kashmir, but this aspect has been ignored by the learned trial court. The basic issue, however, it is contended, was that joint family coparcenary property could not have been sold without the concurrence of the appellant but this aspect has been ignored by the trial court. Finding of the trial court in regard to physical possession of the suit land is questioned on the ground that the revenue extract (nakal jamabandi charsala 1990-1991) attached with the sale deed shows appellant in possession of the said land.
7. Learned Senior Advocate appearing for the appellant, while retreating the grounds taken in the memorandum of appeal, argued further that sale of a specific portion of joint holding by a co-sharer is not permissible so there is a strong prima facie case in favour of the appellant. Learned Senior Advocate argued also that respondent No.1 is likely to raise constructions on the suit CIMA No. 501/2013 Page 4 of 8 land in violation of ban on any such construction in the agricultural land and such construction will adversely affect the appellant's interest in the suit land so balance of convenience is also in favour of the appellant but this aspect has been ignored by the learned trial court. Learned Senior Advocate relied upon a judgment of this court in Panch Dashnaam Zoonaa Akhara and ors. v. Ashok Gupta and anr. 2009 (3) JKJ 43.
8. Per contra, learned Senior Advocate appearing on behalf of the respondents submitted that the respondents 2 to 10 (vendors) were in physical possession of the suit land and the suit land does not exceed their collective share in the joint holding inherited by the parties from late Sh. Munshi Singh so the impugned sale is valid as per the law authoritatively laid down by this court in Mst. Rahti v. Wali Ganai and ors. AIR 1966 J&K 39. Learned counsel denied the appellant's contention that this was a case of sale to a Non-State Subject as the sale deed has been executed through one Sudhir Mehta, who is a State Subject and such a sale is legal under law.
9. The factual position by and large is clear from the pleadings of the parties, averments in the memorandum of appeal and submissions made at Bar on behalf of the parties. Legal position in regard to the competence of a co-owner to transfer a specific portion of the joint holding by sale or otherwise, consequences of such a transfer and rights of the transferee by now and since long is well settled. A co-owner in exclusive possession of a specific CIMA No. 501/2013 Page 5 of 8 portion of the joint holding can transfer that portion to a third person but such transfer should not exceed his share in the entire joint holding. In the case of sale of a specific portion of a joint holding, the vendee will get the right of possession of the property sold to him and status of a co-sharer qua the said property and the sale would be subject to partition at the time of partition among the co-owners. Likewise, legal position in regard to the exclusive use of a portion of joint holding in possession of a co-owner, in particular, permissibility of raising construction on the said portion is also well settled. It is permissible for a co-owner to raise construction on that portion of the joint holding of which he has been in exclusive possession without any objection from the other co-owners. This right of the co-owner, however, is not totally unfettered and is subject to some conditions, which need not be discussed here (See Mst. Rahti v. Wali Ganai and ors. AIR 1966 J&K 39, Mohammad Akram Siah v. State and ors, 2009 (2) SLJ 466, Kabla Singh and anr. v. Pari Ram and ors, 2009 (2) JKJ 313 and Din Dayal Kapoor and ors. v. Kusum Kapoor, 2014 (1) 351). Suffice to say, briefly, the vendee of a portion of a joint holding will get rights in that portion to the extent of the rights held by the vendor.
10. The factual position recorded by the learned trial court is not much under dispute in this appeal. Besides, I have noticed that the appellant in the suit filed by him has opted not to state the area of the joint holding inherited by them from their common ancestor, Munshi Singh and what the share each one of them had in the CIMA No. 501/2013 Page 6 of 8 said joint holding. He also has not stated that the suit land was not in possession of the respondents 2 to 10 (vendors) or some of them though he has stated mildly in para 5 (iv) in the plaint that "there is no specific or individual portion of land or share, which can be stated to be owned and occupied by particular co-sharers and co-owners". I, therefore, find no sufficient ground for differing with the observation made by the learned trial court in the impugned order that on the basis of the record available on the file, respondents 2 to 10 were owners in possession of the suit land.
11. Once it is found for the sake of the application for temporary injunction that the vendors (defendants) were in possession of the suit land measuring 5 kanals 11 marlas, in that case neither the sale prima facie can be held invalid nor balance of convenience can be said to be in favour of the appellant, having regard to the stand taken by the appellant or the stand taken by the respondents. The stand of the appellant as per the suit filed by him is that the suit land measuring 5 kanals and 11 marlas is the joint holding of all of them, that is, the ten share holders. In that the individual share of each share holder would be 11 marlas. If it is so, the balance of convenience would not be in the favour of the appellant, firstly, for the reason that sale is subject to partition between the co-sharers and at the time of partition 11 marlas of land can well be given to him or he can be adequately compensated for the said land. On the other hand, stand of the respondents is that total joint holding inherited by the appellant CIMA No. 501/2013 Page 7 of 8 and respondents 2 to 9 was 55 kanals and 15 marlas of land. In that case, share of individual co-sharer would be over 5 kanals so the sale of suit land cannot be said to have exceeded share of nine share holders.
12. Learned trial court, therefore, cannot be said to have committed any error in refusing temporary injunction in favour of the appellant, which would have adversely affected the interest of respondent No.1, who can be said a bona fide purchaser.
13. Insofar as sale to Non-State Subject is concerned, the point raised by respondents is that purchase has been made through a State Subject so the validity of the sale is a question to be considered by the trial court. Likewise the legal effect of the contention that agricultural land has been sold for non-agricultural purpose has to come up for consideration at trial. However, it having been found that the sale relates to a portion of land falling much within the share of the vendors, and vendors being in possession of the said land, a case for temporary injunction in favour of the appellant on that score is not made out.
14. For all that said and discussed above, this appeal has no merit and is dismissed.
15. Record of the trial court be remitted back along with a copy of this judgment.
(Janak Raj Kotwal) Judge Jammu:
16.11.2017 Pawan Chopra CIMA No. 501/2013 Page 8 of 8