Andhra HC (Pre-Telangana)
Miss Amina Sultana Abbasi vs D. Rajalingam Jattaiah And Ors. on 7 November, 2007
Equivalent citations: 2008(2)ALD41
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The appellant filed O.S.No. 3118 of 1982, in the Court of I Assistant Judge, City Civil Court, Secunderabad, against the respondents, initially for the relief of perpetual injunction. Thereafter, the prayer was amended, incorporating the relief of recovery of possession of the suit schedule property. She pleaded that the suit plot, admeasuring 300 sq.yards, in Sy.No. 168 of Boudhanagar, Warasiguda, Secunderabad, was purchased by her under a sale deed dated 25.4.1963, from one Sri Gayasuddin Khan, and ever since then, she is in possession and enjoyment of the property. It was alleged that the 1st respondent, who is working as a constable in the Police Department, tried to occupy the land high handedly, and attempted to put a temporary hut on it. She alleged that the local police did not take any action on the complaint submitted by her. On finding that the plot was occupied by the 1st respondent, she got amended the suit, for the relief of recovery of possession.
2. Respondents 2 and 3 are the wife and daughter respectively, of the 1st respondent. A common written statement was filed by them. It was pleaded that the 2nd respondent purchased the suit plot, through sale deed dated 6.5.1982, from the original owner, and they did not encroach into any property of the appellant. Through its judgment, dated 26.9.1989, the trial court dismissed the suit. There upon the appellant filed A.S.No. 1 of 1990, in the Court of Additional Chief Judge, City Civil Court, Hyderabad. The appeal was dismissed on 24.7.1995. Hence, this second appeal.
3. Sri D.Madhava Rao, learned Counsel for the appellant, submits that the appellant proved her title, by filing the sale deed dated 25.4.1963, marked as Ex.A-2, and by examining the concerned witnesses. He contends that even assuming that the sale deed, under which the 2nd respondent purchased the property is valid, it cannot confer any title, since it came to be executed almost two decades after the purchase of the property, by the appellant. He submits that the courts below did not apply the settled principles of law, and ought to have granted the relief, as prayed for.
4. Smt. Dyumani, learned Counsel appearing for Sri T.S.Anand, learned Counsel for the respondents, on the other hand, submits that the purchases made by the appellant, on the one hand, and respondent No. 2, on the other hand, are from different co-sharers, and that no absolute title can be said to have accrued to either of them. She contends that the only remedy that the appellant ought to have pursued was, to seek partition of the property and for possession of the undivided share, to the extent covered by Ex.A-2, through her vendor. She places reliance upon certain decided cases.
5. The trial court framed the following issues for its consideration.
1) Whether the alleged sale in favour of the plaintiff binds the vendors of the suit property in favour of the defendant No. 2?
2) Whether the plaintiff is in possession of the suit property at the time of filing of the suit?
3) Whether the plaintiff is entitled for perpetual injunction against the defendants?
4) Whether the plaintiff is entitled for mandatory injunction for the removal of the hut of the defendants? Additional Issues:
5) Whether the plaintiff is entitled for the recovery of vacant possession of the suit schedule property as prayed for?
6) Whether the plaintiff is entitled to mesne profits as prayed for?
6. The GPA of the appellant was examined as PW-1 and another witness was examined as PW.2. She filed Exs.A-1 to A-3. The 1st respondent was examined as DW-1 and one of the vendors of 2nd respondent was examined as DW-2. On their behalf, Exs.B-1 to B-14 were filed. Another document was marked as Ex.X-1. The trial court dismissed the suit, and the same was affirmed by the lower appellate court.
7. The land in Sy.No. 168, which is said to be about Acs.100-00 was owned by one Waris Khan. One of his sons, by name Gayasuddin Khan, executed Ex.A-2 in favour of the appellant, in the year 1963. The children of one of the daughters of Waris Khan, on the other hand, executed Ex.B-1, sale deed dated 6.5.1982, in favour of the 2nd respondent. The property covered by Exs.A-2 and B-1 appears to be one and the same.
8. If the vendor of the appellant got absolute title and exclusive possession vis--vis property sold by him, there cannot be any doubt that the appellant derives absolute title and possession, by virtue of Ex.A-2. The subsequent sale made by the other legal heirs of Waris Khan, would not have any effect upon such rights. It is not in dispute that the Matruka left by Waris Khan was not partitioned among his legal heirs, by the time Ex.A-2 was executed. Admittedly, O.S.No. 17 of 1981, in the Court of Additional Metropolitan Sessions Judge-cum- Additional Chief Judge, City Civil Court, Hyderabad, was filed for partition of the matruka left by Waris Khan, and a preliminary decree for partition was passed on 15.9.1987. The plaint in that suit is filed as Ex.B-10 and the preliminary decree is marked as Ex.X-1. The final decree is yet to be passed.
9. For all practical purposes, the appellant had purchased part of an undivided share of Gayasuddin Khan. On the strength of Ex.A-2, she could have demanded partition of the property, and separate possession of the extent covered by Ex.A-2. A purchaser from a co-sharer cannot claim exclusive rights vis- -vis any portion of the property. The reason is that each co-sharer or co- owner would have the same rights, as any other co-owner, in respect of every bit of the property. Exclusive rights would emerge only as a result of partition. In fact, Section 44 of the Transfer of Property Act is clear, on this aspect. In Thota Rambabu @ Ramu v. Cherukuri Venkateswara Rao @ Pedababu , a Division Bench of this Court, while interpreting Section 44 of the Transfer of Property Act, held as under:
36. The phenomena of co-ownership of an undivided property, on the one hand, and delivering of physical or symbolical possession thereof do not coexist. In fact, they are mutually exclusive. In Saleem, S/o. Yaseen v. I Additional Civil Judge, Senior Division, Saharanpur AIR 1996 All.342, it was held that the right of a transferee under Section 53-A of the Act does not have the effect of superceding, or frustrating the provisions of Section 44 of the Act. To the same effect is the judgment of the Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden . Though they related to the second limb of Section 44, by and large, the principle remains the same.
37. In Smt. Lalita James v. Ajit Kumar and Ashim Ranjandas v. Smt. Bimala Ghosh , it was held that a transferee from a co-owner of a portion of undivided property is not entitled to right of exclusive possession, and that he can, at the best, enforce a partition of joint estate. The Himachal Pradesh High Court in its judgment in Paldev Singh v. Smt. Darshani Devi , observed that a co-owner cannot be said to be in actual physical or exclusive possession of any parcel, till a partition takes place, and the question of his delivering the possession of such an undivided share does not arise. Authorities can be multiplied on this aspect. The gist is that the transferee from a co-owner of an undivided property gets nothing more than a right to seek partition, and thereafter, secure possession of the share of property purchased by him, and he cannot claim any exclusive possession, on the basis of such transfer till the partitions takes place.
10. There may be some possibility even for a purchaser from a co-owner, to seek the relief of injunction, and even recovery of possession, against a stranger. However, such a relief cannot be claimed or granted against another co-owner, or a person claiming through such a co-owner. The transferees from different co-owners step into the shoes of their respective vendors, and none of them can claim exclusive rights vis--vis the other. In this case, the appellant as well as the 2nd respondent are the purchasers, from two different co-owners. By the time the purchases came to be made, the partition has not taken place among their vendors. The question as to whether the appellant, on the one hand, and the 2nd respondent, on the other hand, derive any title vis- -vis the suit schedule property, would depend upon the entitlement of their respective vendors in the ultimate partition. Even assuming that the sale deeds, Exs.A-2 and B-1 are in respect of the same item of property, both of them can enforce their rights against their respective vendors. The reason is that both the documents are liable to be treated, in respect of an undivided share, and in the final decree proceedings, both of them can insist on being allotted the extent of lands, covered by the documents. Therefore, the suit instituted by the appellant was misconceived and the dismissal thereof, cannot be found fault with.
11. The Second Appeal is dismissed, leaving it open to the appellant, or for that reason, the 2nd respondent, to work out their remedies, through their respective vendors, in the final decree proceedings in O.S.No. 17 of 1981. There shall be no order as to costs.