Smt. Mamta Agrawal vs Ghanshyam
2023 Latest Caselaw 54 Chatt

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                                                      FA No. 70 of 2019

                                                                 AFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                   First Appeal No. 70 of 2019

1.   Smt. Mamta Agrawal, wife of Late Dr. Prem Prakash Agrawal,
     aged about 74 years.

2.   Dr. Abhay Agrawal, son of Late Dr. Prem Prakash Agrawal.

     Both residents of Lifeline Hospital, Ring Road No. 2, Bilaspur,
     Tahsil & District Bilaspur (C.G.)

                                             ---- Appellants/Plaintiffs

                              Versus

1.   Ghanshyam, son of Late Kriparam Suryavanshi, aged 70
     years.

2.   Dhiraj Kumar Gadhewal, Son of Late Parasram, aged 45
     years.

3.   Smt. Vimlabai, wife of Late Parasaram, aged 60 years

     Both are residents of Jarhabhata, Bilaspur, Tahsil & District
     Bilaspur (C.G.)

4.   Smt. Maya Suryavanshi, daughter of Late Parasram, wife of
     Rupesh Suryavanshi, aged about 29 years,

5.   Smt. Saraswati Suryavanshi, daughter of Late Parasram, wife
     of Dinesh Suryavanshi, aged about 27 years,

     Both residents of Old Sarkanda, Shiv Ghat, Bilaspur, Tahsil &
     District Bilaspur (C.G.)

     No. 2 to 5 are legal heirs of deceased Parasram (Defendant
     No. 2)

6.   Mithailal (Dead)

6(a) Sanjay Gadhewal, S/o Late Shri Mithailal, aged about 40
     years,

6(b) Subodh Gadhewal, S/o Late Shri Mithailal, aged about 35
     years,

6(c) Padmini Gadhewal, D/o Late Shri Mithailal, aged about 27
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                                                       FA No. 70 of 2019

       years,

6(d) Meenakshi Gadhewal, D/o Late Shri Mithailal, aged about 20
     years

       No. 6(a) to 6(d) are resident of Jarhabhata Bilaspur, Tahsil and
       District Bilaspur (Chhattisgarh)

6(e) Kumudni Paigoure, W/o Hemant Paigoure, aged about 58
     years, resident of Mopka, Bilaspur, Tahsil and District Bilaspur
     (Chhattisgarh)

6(f)   Ranjana Khare, W/o Arjunlal Khare, aged about 45 years,
       resident of Jarhabhata, Bilaspur, Tahsil and District Bilaspur
       (Chhattisgarh)

7.     Hemant, son of Late Bhaiyala, aged about 33 years

8.     Kanti Kumar, son of Late Bhaiyalal, aged about 26 years

9.     Roshan alias Rishabh, son of Late Bhaiyalal, aged about 18
       years,

10.    Shudhabai, daughter of Late Bhaiyalal, aged about 35 years,

11.    Anjali, daughter of Late Bhaiyalal, aged about 23 years

12.    Mahettarin Bai, wife of Late Bhaiyalal, aged about 60 years,

       No. 7 to 12 are legal heirs of deceased Defendant No. 4-
       Bhaiyalal, son of Kriparam and residents of Jarhabhata
       Bilaspur, Tahsil and District Bilaspur (C.G.)

13.    Gyanbai, daughter of Late Kriparam Suryavanshi, aged about
       44 years, Resident of Yadunandan Nagar, Near Old Water
       Tank, Tifra, Bilaspur, District Bilaspur (C.G.)

14.    Makhanlal, son of Late Kriparam Suryavanshi, aged about 73
       years.

15.    Balram, son of Late Kriparam Suryavanshi, aged about 70
       years,

16.    Rajababu (Dead) (deleted)

17.    Suresh Kumar, son of Balram Suryavanshi, aged about 45
       years,

18.    Rajkumar (Dead) (deleted)
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                                                        FA No. 70 of 2019

19.   Ramesh Kumar, son of Makhan Suryavanshi, aged about 46
      years,

20.   Pannalal, son of Late Issar Suryavanshi, Aged about 65 years,

      No. 14 to 20 are residents of Jarhabhata, Bilaspur, Tahsil and
      District Bilaspur

21.   Smt. Rambai, wife of Samaru, aged 54 years, resident of
      village Padipar, Ghutku, Tahsil Takhatpur, District Bilaspur
      (C.G.)

22.   The State of Chhattisgarh, through the Collector, District-
      Bilaspur (C.G.)

                                          ---- Respondent/Defendants



For Appellants                : Mr. B.P. Sharma, Advocate with
                                Mr. Anand Dadariya, Advocate.
For Respondents No.1, 2, 3, 6 & 7
                            : Mr. Ravindra Agrawal, Advocate.
For Respondent No. 22       : Mr. Raghvendra Verma, Govt. Adv.


               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. 765-A/2010 whereby

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

2. The appellants herein instituted a civil suit claiming declaration

and permanent injunction stating that they are the lawful

owner have acquired part of land bearing Khasra No. 607/12

FA No. 70 of 2019

& 607/13 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 plaintiffs to the extent

that they have purchased the property in the year 1998

comprised in said decree.

3. Case of the plaintiffs was that they purchased the suit property

by two different sale-deeds i.e. 24.8.1998 in respect of part of

property bearing Khasra No. 607/2, admeasuring 700 sq.ft.

(Ex.P-9) and another part of the property bearing Khasra

607/2 by sale deed dated 25.08.1998 (Ex.P-10) from

Devajirao Humne for a valid consideration. The total property

purchased by two sale-deeds comprised of 3052 sq.ft.. 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 plaintiffs for partition &

possession. The plaintiffs stated that in an earlier proceedings

of civil suit, the part of the property, which was purchased by

the plaintiffs stands excluded for adjudication, therefore, the

purchases were made and subsequent thereto they have

constructed their residents and Nursing Home over such

property of 3052 sq.ft.

FA No. 70 of 2019

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

Ex.P-2 and the specific issue No. 17, on which, the finding

was arrived at on 19.04.1971 was marked as Ex.P-3. 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-deeds

by the plaintiffs, specially when they were not a party to the

said suit.

5. Learned counsel for the appellants 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 plaintiffs could not have

been non-suited for the claim for the present suit.

6. Per contra, learned counsel for the respondents/defendants

would submit that the respondents are in hold of a preliminary

decree and final decree in their favour, wherein the subject

property i.e. part of Khasra No. 607 has fallen into their share

and the said judgment & decree has also been affirmed by the 1 (2022) 7 SCC 90

FA No. 70 of 2019

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 plaintiffs 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.607,

admeasuring 10064 sq.ft. to one Devajirao Humne vide

2 AIR 2009 SC 2735

FA No. 70 of 2019

registered sale deed dated 12.06.1969, which is marked as

Ex.P-7. Devajirao Humne sold a part of the property

admeasuring 700 sq.ft. to Dr. Prem Prakash and Abhay

Agrawal by registered sale deed dated 24.08.1998, which is

marked as Ex.P-9. Subsequent to it, another sale deed was

executed of Khasra No. 607 by Devajirao Humne in favour

of Dr. Prem Prakash Agrawal & Abhay Agrawal in respect of

2352 sq.ft. of land on 25.08.1998, which is marked as

Ex.P-10. Thereby the plaintiffs have claimed their ownership

over the part of land bearing Khasra No. 607 of a total area

3052 square feet. After sale of property by two co-sharers

i.e. Ishar & Kriparam to Devajirao Humne on 12.06.1969, 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 Devajirao

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

marked as Ex.P-1.

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

claimed by six co-sharers, which included the property sold

to Devajirao Humne, which too was subject matter of the

subsequent suit filed by the appellants/plaintiffs, inasmuch

as Devajirao Humne had sold an area of 3052 sq.ft. of

FA No. 70 of 2019

Khasra No. 607.

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

Kriparam was described in Schedule " t ", which included

that part of the property bearing Khasra No. 607,

admeasuring 10064 sq.ft. sold to Devajirao Humne, s/o

Asharam. Devajirao Humne & others were shown as

purchasers. 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 :-

Issues Findings

16. What relief can be Plaintiffs No. 1 to 5 are entitled to get given to the preliminary decree for partition of house plaintiffs ? 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 commissioner. Plaintiffs No. 1 to 5 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 suit purchasers are can proceed without them. necessary parties and without them the suit cannot proceed ?

12. Issue No. 17, which includes the Khasra No. 607 alongwith

other khasras pertained to what relief can be given to said

FA No. 70 of 2019

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 plaintiffs, who purchased the

property from Devajirao Humne, their cause is enveloped in

such issue No. 17. While deciding the issue 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 Devajirao Humne. It was made categorical that

since the sale made are not challenged, the plaintiffs were

not interested in the result of the suit. Finding on issue No.

17 would be relevant, which is marked as Ex.P-3, and 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

FA No. 70 of 2019

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.

      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 appellants/plaintiffs necessarily falls within such fenced

territory, which encompasses their rights. Obviously, the

challenge was not made for cancellation of sale-deeds,

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-

FA No. 70 of 2019

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 plaintiffs/appellants, would

stand excluded, who have purchased the property for a

valuable 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 appellants/plaintiffs.

17. Learned Additional District Judge has further observed that

by purchase of the property by the appellants/plaintiffs by

registered sale - deeds dated 24.4.1998 (Ex.P-9) and

25.08.1998 (Ex.P-10), they 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

FA No. 70 of 2019

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 respondents/defendants, which includes the

property of plaintiffs, they cannot be deprived of their right to

the fruits of the property. Therefore, 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

3 (1973) 2 SCC 535

FA No. 70 of 2019

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