Smt Ganga Devi vs Addl Commissioner Kumoun Mandal ...
2014 Latest Caselaw 3771 Del

        IN THE HIGH COURT OF UTTARAKHAND
                    AT NAINITAL
            Writ Petition No. 704 of 2011 (M/S)

Smt. Ganga Devi                                      .....Petitioner
                               Versus

Addl. Commissioner, Kumoun Mandal,
Nainital and others
                                 ..........Respondents

Present:

Mr. Narendra Bali, Advocate for the petitioner. Mr. R.C. Arya, Standing Counsel for the State/respondent nos. 1 & 2. Mr. Atul Bansal, Advocate for respondent nos. 3, 4 & 5.

Hon'ble Alok Singh, J (Oral).

Jagtar Singh has filed Revenue Case No. 27/340 of 2005-06 before the Assistant Collector, Ist Class/SDO, Bhawar, Haldwani, District Nainital for the partition of property in question under Section 176 of UPZA & LR Act against respondent nos. 6, 7, 8 & 9. It was alleged by Jagtar Singh in the plaint that he was co- owner and was having 1/4th share in the property in question, therefore, lot of his 1/4th share be prepared separately.

Initially learned Trial Court was pleased to issue interim direction that none of the parties shall create third party interest during the pendency of the suit, however, that order was vacated vide order dated 11.9.2006. On 18.9.2006, Dara Singh/respondent no. 7, herein, sold property in favour of the petitioner, herein. Meanwhile, plaintiff/father of respondent nos. 3 & 4 and husband of respondent no. 5, herein, preferred a revision before the Divisional Commissioner assailing the order dated 11.9.2006 vacating the interim order. Before the Revisional Court, the petitioner moved an application for impleademnt, which was rejected. Feeling aggrieved, the

petitioner has approached this Court by way of present writ petition.

I have heard Mr. Narendra Bali, learned counsel for the petitioner and Mr. Atul Bansal, learned counsel for respondent nos. 3, 4 & 5. Since, other respondents are proforma respondents, therefore, they need not to be heard.

As to whether property was still joint on the date of institution of the suit for partition or was in fact mutually partitioned prior to the institution of the suit can only be adjudicated by the Trial Court after appreciating the material available on the record.

In the considered opinion of this Court, if Court comes to the conclusion that the property is still joint and requires partition, then sale deed executed by one of the co-owners to the extent of share of the co- owner/vender shall be deemed as valid and purchaser from the co-owner shall be adjusted in the lot to be allotted in favour of the vender/co-sharer. In the further opinion of this Court even if a co-owner executes a sale deed for specific portion without their being any partition, entire sale deed cannot be said to be void and sale deed, in the event property is found to be joint, shall be valid to the extent of the share of the vender but shall be non est as far as it relates to the specific portion of the property. Since, the petitioner has purchased the property from one of the co-owners, therefore, the petitioner seems to be proper and necessary property.

Consequently, writ petition is allowed. Impugned order is set aside.

Petitioner shall be impleaded as one of the party respondents in the suit pending before the Trial

Court. Learned Trial Court thereafter shall decide the suit itself at its own merit in accordance with law preferably within six months from the date written statement is filed by the petitioner before the learned Trial Court. Parties shall appear before the learned Trial Court on 5.9.2014.

(Alok Singh, J.) 19.8.2014 Avneet/