Smt. Chameli Kaushik vs Smt. Koushilya Bai Patel
2022 Latest Caselaw 7391 Chatt

                                   1
                                                       FA No.365 of 2016

                                                                   AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                          FA No.365 of 2016
{Arising out of judgment and decree dated 5-10-2016 passed by the
Sixth Additional District Judge, Bilaspur in civil suit No.227-A/2015}
   1. Smt. Chameli Kaushik W/o Shri G.P.Koushik, Aged About 57
      Years D/o Late Shri Bhagwan Singh Goutam, R/o Village Nirtu,
      Tahsil Masturi, Dsitrict Bilaspur, Chhattisgarh

      At Present R/o Devnandan Nagar, Phase-1, Chantidih, Seepat
      Road, Bilaspur, Tahsil And District Bilaspur, Chhattisgarh

   2. Smt. Shanti Devi Bhardwaj, W/o Randhir Singh Bhardwaj, Aged
      About 52 Years D/o Late Bhagwan Singh Gautam, R/o Jawahar
      Nagar, Akaltara, Tah. Akaltara, Distt. Janjgir-Champa,
      Chhattisgarh

   3. Smt. Usha Bai Narmada W/o Harprasad Narmada, Aged About 49
      Years D/o Late Bhagwan Singh Gautam, R/o Village Rasauta,
      Tah. Baloda, Distt. Janjgir-Champa, Chhattisgarh

   4. Smt. Sandhya Koushil W/o Ashok Kumar Koushil, Aged About
      40 Years D/o Late Bhagwan Singh Gautam, R/o Village Khond,
      Tah. Akaltara, Distt. Janjgir-Champa, Chhattisgarh

                                               ---- Appellants/Plaintiffs

                                Versus

   1. Smt. Koushilya Bai Patel Wd/o Late Ramji Patel, Aged About 60
      Years D/o Guharam Patel, R/o Near Sarvmangala Mandir,
      Durpanagar, Tah. Katghora, Distt. Korba, Chhattisgarh

   2. Om Prakash Goutam, (Dead) Through LRs

      2 (1) Smt. Ambika Gautam, W/o Omprakash Gautam, Aged
            About 50 Years

      2 (2) Neeraj Gautam, S/o Omprakash Gautam, Aged About 23
            Years

      2 (3) Smt. Arti Gautam, D/o Omprakash Gautam, Aged About 29
            Years

            R/o village Kapan, Tahsil Akaltara, Distt. Janjgir-Champa,
            Chhattisgarh

   3. State Of Chhattisgarh, Through Collector, Bilaspur, Chhattisgarh

                                           ---- Respondents/Defendants
                                       2
                                                        FA No.365 of 2016



For Appellant                    Mr. B.P. Gupta, Advocate

For Respondent No.1              Mr. Dharmesh Shrivastava, Advocate

For Respondents No.2(1)to2(3) None, despite service of notice

For Respondent No.3/State        Mr. Ashutosh Mishra, Panel Lawyer


                 Hon'ble Shri Justice Goutam Bhaduri
                Hon'ble Shri Justice N.K. Chandravanshi
                            Judgment on Board

Per Goutam Bhaduri, J.

08-12-2022

1. Challenge in this appeal is to the judgment and decree dated

5-10-2016 passed by the Sixth Additional District Judge, Bilaspur

in civil suit No.227-A/2015 whereby the suit was dismissed. The

present appeal is by the plaintiffs.

2. The suit was filed by four sisters namely; Smt. Chameli Koushik,

Smt. Shanti Devi Bhardwaj, Smt. Usha Bai Narmada & Smt.

Sandhya Koushil against one Smt. Koushilya Bai Patel, defendant

No.1, who had purchased the property from the defendant No.2 Om

Prakash Goutam, brother of the plaintiffs.

3. Case of the plaintiffs was that they are the joint owners of land

bearing khasra No.184 admeasuring 5.90 acres situated at village

Nirtu, PH No.33, RI Circle Sipat, Tahsil Masturi, District Bilaspur.

According to the plaintiffs, the said land was purchased by the

defendant No.1 on the basis of forged power of attorney dated

9-2-2015 alleged to have been executed by four sisters (plaintiffs)

FA No.365 of 2016

in favour of brother (defendant No.2). The suit was filed to declare

the said sale deed as nullity and possession was also claimed for

from the defendant No.1. The plaintiffs further stated that they are

in possession of the land and were doing the agricultural activities

on the said land. According to the plaintiffs, on the power of

attorney dated 9-2-2015 photographs of some other persons were

affixed other than the plaintiffs by the defendant No.2 and the sale

deed was executed in favour of the defendant No.1. The plaintiffs

stated that they have never executed any power of attorney in

favour of their brother/defendant No.2. The plaintiffs also stated

that while they sowed the crop over the suit land, in the month of

August, 2015 the defendant No.1 took over the land forcibly on the

basis of sale deed dated 11-3-2015 (Ex.P/1).

4. The defendants No.1 & 2 filed their written statement and denied

the plaint averments. Subsequently, they proceeded ex parte. The

defendant No.1 has stated that she is a bona fide purchaser of the

suit land. She also stated that after payment of sale consideration,

she came into possession, therefore, the suit be dismissed.

5. Learned trial Court after evaluating the evidence came to a finding

that the sale deed executed by the brother (defendant No.2) in

favour of the defendant No.1 (purchaser) on the basis of forged

power of attorney would be invalid in respect of share held by the

plaintiffs (sisters), meaning thereby the sale of share of defendant

No.2 was held to be valid.

FA No.365 of 2016

6. Learned counsel appearing for the appellants/plaintiffs would

submit that the impugned judgment and decree of the trial Court is

perverse inasmuch as the trial Court came to a finding that the sale

deed was executed by the brother on the basis of forged power of

attorney alleged to have been executed by the sisters in his favour,

therefore, the entire sale deed would go. He would further submit

that even otherwise, the purchaser cannot be put in possession of

the suit property in its entirety and only recourse left to the

defendant No.1 (purchaser) was to file a suit for partition when joint

property was purchased by her as no partition has ever taken place

between the brother and sisters.

7. Learned counsel appearing for the respondent No.1/defendant No.1,

per contra, would submit that in any case the extent of share which

has been sold by the brother cannot be said to be invalid and he has

vested right to sell his share of property. He would further submit

that the impugned judgment and decree of the trial Court is well

merited, which do not call for call for any interference.

8. We have heard learned counsel appearing for the parties at length

and perused the record.

9. Ex.P/1 is the sale deed. Om Prakash (defendant No.2), brother of

the plaintiffs, on the basis of power of attorney by the plaintiffs, has

shown them as seller and executed the sale deed in favour of

defendant No.1. Said sale deed contains a document Form B-1,

which shows that the subject property bearing khasra No.184 was

FA No.365 of 2016

held by Omprakash (defendant No.2) along with four sisters

(plaintiffs). The learned trial Court in its judgment has held that the

plaintiffs were able to prove the fact that the sale deed was executed

on the basis of forged power of attorney by the defendant No.2 in

favour of the defendant No.1 and further held that the property to

the extent executed by the brother would be valid.

10. The Supreme Court in the matter of Gorakh Nath Dube v. Hari

Narain Singh1, while making distinction between void and

voidable document has held that an alienation made in excess of

power to transfer would be, to the extent of the excess of power,

invalid and adjudication on the effect of such a purported alienation

would be necessarily implied in the decision of a dispute involving

conflicting claims to rights or interests in land which are the subject

matter of consolidation proceedings.

11. Therefore, in our considered opinion, the finding of Court that the

property sold to the extent of share of the brother would be valid

appears to be justified. Even otherwise, the brother has vested joint

right to execute the sale deed.

12. Now the other question comes to fore as to what would be the

purchaser's right to hold possession. Admittedly, there is no

physical partition of an undivided landed property whereas the co-

sharer, one of the brothers, has put into possession the purchaser in

respect of the property.

1 (1973) 2 SCC 535

FA No.365 of 2016

13. The Supreme Court in the matter of Ramdas v Sitabai & Ors.2, had

an occasion to discuss this issue wherein it was held that a co-sharer

cannot put a vendee in possession although such a co-sharer may

have a right to transfer his undivided share. The Supreme Court

further held thus in paras 15 & 16 :

15) Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M.

Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows:

"Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co-parcener whose share he had purchased."

16. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:-

"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the 2 AIR 2009 SC 2735

FA No.365 of 2016

date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour.

(Emphasis added)

14. Further the Supreme Court in the matter of Kailash Pati Devi v

Bhubneshwari Devi and Others3 has laid down that what is

purchaser's right when the joint family property is purchased. It

held that he has the right to file a general suit for partition against

the members of the joint family and, indeed, that may be the proper

remedy for him to adopt to effectuate his purchase.

15. In the light of aforesaid principles, it is vivid that the purchaser has

taken over possession of the suit land on the basis of sale made by

one co-sharer.

16. Looking to the aforesaid facts and circumstances of the case, we are

of the view that the purchaser cannot be put in possession by one

co-sharer and undivided interest in the joint family property or

share of the co-sharer cannot put a vendee in possession.

17. In the result, the impugned judgment and decree dated 5-10-2016 is

set aside. The present appeal is allowed to the extent that the

plaintiffs would be entitled to get possession of the suit land in its

entirety from the defendant No.1 and they are required to be put in

possession.

3 1984 AIR (SC) 1802

FA No.365 of 2016

18. It goes without saying that the purchaser (defendant No.1) would

have a right to file suit for partition in accordance with law.

19. A decree be drawn accordingly.

               Sd/-                                           Sd/-
         (Goutam Bhaduri)                            (N.K. Chandravanshi)
              Judge                                          Judge

Gowri

                                          FA No.365 of 2016


              Head Note

Co-sharer cannot put a vendee in possession. lg&va'k/kkjh dzsrk dks lafiRr ij dCtk ugha fnyk ldrk gSA