Ghanshyam Prasad (Died) Through ... vs Ghanshyam
2023 Latest Caselaw 53 Chatt

                                 1
                                                     FA No. 168 of 2019

                                                                NAFR

         HIGH COURT OF CHHATTISGARH, BILASPUR

                   First Appeal No. 168 of 2019

     Ghanshyam Prasad, Dead Through L'rs Nirmal Kumar
     Sharma, S/o Late Shri Ghanshyam Prasad, Aged about 57
     years, R/o- Tikrapara Bilaspur, Tah. & Dist. - Bilaspur (C.G.)

                                                ---- Appellant/Plaintiff

                              Versus

1.   Ghanshyam, son of Late Kriparam Suryawanshi, aged 70
     years, R/o Near Rajeev Gandhi Chowk, Jarhabhata, Bilaspur,
     Tah. & Dist - Bilaspur (C.G.)

2.   State of Chhattisgarh, Through - Collector, Dist - Bilaspur
     (C.G.)

3.   Rajendra Yadav, S/o Sadashiv, R/o Om Nagar, Near Sailendra
     Apartment, Jarahabhata, Bilaspur, Tah. & Dist- Bilaspur (C.G.)

                                       ---- Respondents/Defendants



For Appellant               : Mr. Ravindra Sharma, Advocate.
For Respondent No. 1        : Mr. Ravindra Agrawal, Advocate.
For Respondent No. 2        : Mr. Raghvendra Verma, Govt. Adv.
For Respondent No. 3        : None appeared


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

Per Goutam Bhaduri, J.

04-01-2023

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

18.01.2019 passed by the 5th Additional District Judge,

Bilaspur, District Bilaspur in Civil Suit No. 764-A/2011 whereby

the suit was dismissed. The present appeal is by the plaintiff.

FA No. 168 of 2019

2. The appellant herein instituted a civil suit claiming declaration

and permanent injunction stating that he is lawful owner has

acquired part of land bearing Khasra No. 92/02, admeasuring

area 0.03 acre (0.012 hectare) and the preliminary decree in

earlier Civil Suit No. 3-A/1970 in between Ghanshyam &

others v. Kriparam & others dated 02.02.1973 followed by final

decree dated 09.03.2007 would not be binding on the plaintiff

to the extent that they have purchased the property on

24.01.1970 before filing of the civil suit, comprised in said

decree.

3. Case of the original plaintiff was that he had purchased the

suit property by sale-deed dated 24.01.1970 in respect of part

of property bearing Khasra No. 92/02, admeasuring 0.03 acre

(0.012 hectare) [Ex.P-1] from Kriparam & Ishar for a valid

consideration. In respect of the said land, a judgment,

preliminary decree and the final decree was passed by the

Court of District Judge, Bilaspur in Civil Suit No. 3-A/1970

whereby said property fell into the share of respondents and

who sought execution of such final decree against the plaintiff

for partition & possession. The plaintiff stated that in an earlier

proceedings of civil suit, the part of the property, which was

purchased by the plaintiff stands excluded for adjudication,

therefore, the purchases were made and subsequent thereto

he has constructed the boundary wall.

FA No. 168 of 2019

4. Judgment of the earlier Civil Suit No. 3-A/1970 was marked as

Ex.P-14 and the specific issue No. 17, on which, the finding

was arrived at on 19.04.1971. It is submitted that learned trial

Court has failed to take into consideration the fact that the

property, which was sold by two of the co-sharers, have

conferred the right to the extent of their share and the entire

sale-deed cannot be branded as non-effective for want of any

challenge to the said sale-deed by the plaintiff, specially when

original plaintiff - Ghanshyam was not a party to the said suit.

5. Learned counsel for the appellant/plaintiff would further submit

that if the property was sold by two of the co-sharers in

respect of their joint property without physical partition, the

subsequent adjustment of the share can be done by invoking

the equity as laid down by the Supreme Court in the matter of

Umadevi Nambiar v. Thamarasseri Roman Catholic

Diocese represented by its Procurator Devssia's son

Rev. Father Joseph Kappil 1 and in any case, the plaintiff

could not have been non-suited for the claim for the present

suit.

6. Per contra, learned counsel for the respondent No. 1/

defendant No. 1 would submit that the respondent No.1 and

other co-sharers are in hold of a preliminary decree and final

decree in their favour, wherein the subject property i.e. part of

1 (2022) 7 SCC 90

FA No. 168 of 2019

Khasra No. 92/02 has fallen into their share and the said

judgment & decree has also been affirmed by the High Court.

Consequently, the fruits of such judgment & decree cannot be

defeated. He would further submit that even sale by one of

the co-sharers, vendee cannot be put in possession and he

placed reliance upon the judgment of the Supreme Court in

the matter of Ramdas v. Sitabai & others 2 and would submit

that the purchaser had only right to file a suit for partition,

when he has purchased the joint property. It is further

submitted that the judgment & decree whereby partition was

ordered will hold the field and cannot be defeated at the

instance of 3rd party, who claims to derive title from co-sharers.

7. We have heard learned counsel appearing for the parties at

length and perused the material available on record.

8. The primary question which comes for consideration in this

appeal revolves around the right of the plaintiff whether is

saved by abandonment of claim by the claimants/

respondents in earlier suit. To explore this situation, we went

through the sequence of events, which took place in between

the parties.

9. Perusal of the record would show that initially one Ishar &

Kriparam, who were co-sharers of undivided landed property,

sold the part of land bearing Khasra No. 92/02, admeasuring

2 AIR 2009 SC 2735

FA No. 168 of 2019

0.03 acre (0.012 hectare) to original plaintiff Ghanshyam vide

registered sale deed dated 24.01.1970, which is marked as

Ex.P-1. Thereby the plaintiff has claimed his ownership over

the part of land bearing Khasra No. 92/02 of a total area 0.03

acre (0.012 hectare). After sale of property by two co-sharers

i.e. Ishar & Kriparam to original plaintiff - Ghanshyam on

24.01.1970, a civil suit was filed by other co-sharers in the

year 1970 namely (i) Ghanshyam, (ii) Parasram, (iii) Mithailal,

(iv) Bhaiyalal, (v) Smt. Geeta Bai & (vi) Gyan Bai against (i)

Kriparam, (ii) Makhanlal (iii) Balram & (iv) Ishar for partition

and possession inclusive of property sold to original plainitf -

Ghanshyam. The said civil suit was filed on 6.4.1970, which is

marked as Ex.P-12 (plaint).

10. Perusal of the plaint would show that the partition was claimed

by six co-sharers, which included the property sold to original

plaintiff - Ghanshyam, which too was subject matter of the

subsequent suit filed by the appellant/plaintiff.

11. In an earlier civil suit of partition, property sold by Ishar &

Kriparam was described in Schedule "p", which included that

part of the property bearing Khasra No. 92/02 admeasuring

0.03 acre (0.012 hectare) sold to original plaintiff -

Ghanshyam was shown as purchaser. In such civil suit, 17

issues were framed and issues No. 16 & 17 would be relevant

for adjudication of this appeal, which are quoted below :-

FA No. 168 of 2019

Issues Findings

16. What relief can be Plaintiffs No. 1 to 5 are entitled to given to the get preliminary decree for partition plaintiffs ? of house shown in schedule "Ka", lands bearing Kh. Nos. 607, 604/1 of Schedule A, Kh. Nos. 482, 501/2, 502, 503, 504, 506/2, & 508 of Schedule B, Kh. Nos. 86, 94, 92 & 67 of Schedule E. Division of price of 6 decimals of land out of the land on which building shown in schedule "Fa" is situated after its valuation is determined by the

each are entitled to get 1/16th share in the said property and also separate possession. They will also get corresponding costs from the defendants.

17. Whether the No. Decided on 19.4.1971. The purchasers are suit can proceed without them. necessary parties and without them the suit cannot proceed ?

12. Issue No. 17, which includes the Khasra No. 92/02 alongwith

other khasras pertained to what relief can be given to said co-

sharers, who, claimed partition including the property sold by

two co-sharers. The issue No. 17 was adjudicated on

19.04.1971. According to allegation of co-sharers and defence

raised, the question came to fore as to whether purchaser

would be necessary party or not in earlier Civil Suit No. 3-

A/1970. The plaintiff, who purchased the property, their cause

is enveloped in such issue No. 17. While deciding the issue

FA No. 168 of 2019

No. 17, the plaintiffs therein are the co-sharers categorically

made statement before the Court that they do not claim any

share in the property sold to various persons, which included

the sale to original plaintiff - Ghanshyam Prasad. It was

made categorical that since the sale made are not challenged,

the plaintiff was not interested in the result of the suit. Finding

on issue No. 17 would be relevant, which is reproduced as

under :

" IN THE COURT OF DISTRICT JUDGE, BILASPUR.

PRESIDED IN BY SHRI M.L. GUPTA.

C.S. No. 3A/1970.

Ghanshyam and others. ..... Plaintiffs Vs.

  Kriparam and others.                 .....Defendants


                 Finding on Issue No. 17.

"Whether the purchasers are necessary parties and without them the suit cannot proceed ?"

This is a partition suit by some of the sons against the father, uncle and other brothers. It is an admitted position that properties mentioned in schedule 'Ja' have been sold to various persons. The defendants have therefore raised an objection that these purchasers are necessary parties. Any person in such a suit is a necessary party or a proper party if he is interested in the result or he is entitled to a share on interest in the property. In the instant case the plaintiffs do not claim any share in the properties sold to these various persons. They have not challenged the sales and therefore these persons are not interested in the result of the suit. These persons are not entitled to any any share in the properties sought to be partitioned and they have no interest in those properties. Therefore these persons are neither necessary nor proper parties. The suit can proceed in their absence. I therefore decide this issue against the defendants and hold that these purchasers are not necessary parties and the suit can proceed without them.

FA No. 168 of 2019

Bilaspur, (M.L. Gupta) D/- 19/4/1971 District Judge"

13. Reading of the said finding on issue No. 17 would show that

the property, which was sold by two of the co-sharers namely

Ishar & Kriparam was carved out from adjudication in the civil

suit claiming partition and was fenced by abandoning the

claim to the extent over those properties. The

appellant/plaintiff necessarily falls within such fenced territory,

which encompasses his right. Obviously, the challenge was

not made for cancellation of sale-deed, which could have

been under Section 31 of the Specif Relief Act.

14. There is no dispute about the proposition that a co-sharer

cannot put a vendee in possession, although such a

co-sharer may have a right to transfer his undivided share and

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

members of the joint family. However, in the instant case, the

persons, who were claiming the partition and possession in an

earlier suit, abandoned their right before a court of law and did

not make the purchasers as parties in a suit for partition,

which was in between the family members.

15. As a result, claim having been abandoned in respect of the

property already sold in earlier civil suit No.3-A/1970, the

property, which passed on to plaintiff/appellant, would stand

excluded, who have purchased the property for a valuable

FA No. 168 of 2019

sale consideration.

16. Accordingly, we are of the view that the judgment & decree

passed in Civil Suit No. 3-A/1970 in between Ghanshyam &

others v. Kriparam & others dated 02.02.1973 and final decree

of 09.03.2007 would not be binding / applicable to affect the

right of the appellant/plaintiff.

17. Learned Additional District Judge has further observed that by

purchase of the property by the appellant/plaintiff by registered

sale - deed dated 24.01.1970 (Ex.P-1), he would not get any

right. The nucleus of the property passes through Ishar &

Kriparam, who were the co-sharers of the property, it cannot

be said that they did not have any vested right or ownership in

the property. Following the principles of law laid down by the

Supreme Court in the case of Gorakh Nath Dube v. Hari

Narain Singh 3, we hold that alienation made in excess of

power to transfer to the extent, may render it invalid, however,

for that the owner should have invoked any right to get it

adjudicated to seek the remedy under Section 32 of the

Specific Relief Act.

18. Taking into fact that the final decree has been passed in

favour of respondent No. 1/defendant No. 1 and other co-

sharers, which includes the property of plaintiff, he cannot be

deprived of his right to the fruits of the property. Therefore,

3 (1973) 2 SCC 535

FA No. 168 of 2019

following the principles of law laid down in the matter of

Umadevi Nambiar (supra), wherein the Supreme Court held

that co-sharers shall be within their right to seek allotment of

the transferred property to the said co-sharers, who have sold

the property. Rateable set off can be claimed by the respective

other share holders. Relevant paragraph 15 of the said

judgment is quoted below:-

"15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co sharer are still entitled to sustain the alienation to the extent of the share of the cosharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations."

19. We, therefore, allow the instant appeal to the extent indicated

hereinabove.

20. A decree be drawn up accordingly.

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

Amit