Jharkhand High Court
Unknown vs Mostt. Fulia on 11 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 67 of 2004
1(a). Kamla Devi
1(b)(a) Sarita Keshri
1(b)(b) Sweta Keshri
1(b)(c) Swati Keshri
1(b)(d) Shanu Keshri
1(b)(e) Shreya Keshri
1(b)(f) Akshra Keshri
1(c) Manoj Pd. Keshri
1(d) Sambhau Keshri
1(e) Aashish Keshri
1(f) Smt. Manju Devi
2. Satyadeo Prasad Keshri
..... ..... Appellants
Versus
1. Mostt. Fulia
2. Mahesh Sao
3. Doman Sao
4. Inder Chand Jaiswal
5. Most. Sharda Devi
6. Smt. Sulochana Devi
7. Satish Barnwal
.... .... Respondents
------
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellants : M/s K.K. Ambastha & Satish Kr. Keshri, Advocates
For the Respondents : M/s Manjul Prasad, Sr. Advocate,
Babban Prasad, Birendra Kumar
& Niraj Kishore, Advocates
CAV ON 14.12.2021 PRONOUNCED ON 11 .01. 2022
1. Appellants are the plaintiffs who have preferred the appeal against the
judgment and decree passed by Sri Anil Kumar, A.D.J.-cum-F.T.C.-VII, Hazaribagh
in Title Appeal No. 10/2003 affirming the judgment and decree by the Sub-judge in
Partition Suit No. 98 of 1972.
2. The plaintiff's brought the suit for declaration that sale deed executed
on 21.6.1972 by defendant nos. 1, 3 and 4 in favour of defendant no. 7 was null and
void and without consideration, inoperative and not acted upon.
3. The case of the plaintiffs in brief is that both the plaintiffs and defendants
except defendant no. 7 were descendants of a common ancestor. The genealogical
table given at page-7 of the plaint details the relationship of the parties. The suit land
detailed in Schedule-B is a portion of Schedule-A land which was acquired by
common ancestor Bhatan Sao S/o Jagarnath Sao, and Durga Sao, S/o Bhatan Sao.
The name of Bhatan Sao and Durga Sao were recorded in jamabandi register each
having 8 Ana Share. The said recorded tenants executed kabuliyat in favour of
Chairman, Hazaribagh Municipality on 19.07.1916 and they went on paying the
settled rent to the Municipality. Two years before the death of Bhatan Sao property
was partitioned in which Durga Sao got 8 Ana Share out of it and the rest 8 Ana were
divided in 5 equal parts of said 8 Anas to the four sons of Bhatan Sao and 1/5th went
to Bhatan Sao. Durga Sao got 70' of land of the Schedule-A property and continued
in possession during his life time. Bhatan Sao died in 1932 leaving behind his four
sons and Durga Sao died in the year 1937. Durga Sao had his house and bari lands
over a strip of 71½' north to south and 100' east to west on Plot No. 582. Defendant
No. 3 fraudulent got his name mutated in the Municipality in collusion with Ram
Chandra Sao and Basant Sao on the basis of a collusive report of a Ward
Commissioner the Holding No. 121 was changed to Holding No. 69 and name of
Parwati and Fulia was mutated by splitting up Holding No. 582A without knowledge
of the plaintiffs and thereafter defendant nos. 1, 3 and 4 jointly executed a registered
sale deed dated 21.06.72 in favour of defendant no. 7 in respect of the suit land.
4. The case of the defendants is that the kabuliyat and jamabandi register of
the Municipality do not convey any right and title to the tenants. Hazaribagh
Municipality constituted in the year 1894 and after survey the register was prepared
in the year 1904 in which Jagarnath Sao, Son of Late Damri Sao was shown as the
owner of two contiguous plots namely 581 and 582. These two plots were acquired
by Jagarnath Sao and after his death it devolved upon his son Bhatan Sao and four
grandsons Durga Sao, Ram Chandra Sao, Jangli Sao and Basant Sao. Bhatan Sao and
others sold Plot No. 581 to one Jaldhari Sao while the remaining land devolved upon
his sons and grandsons. Bhatan Sao and his son Durga Sao were managing members
of his family and, therefore, kabuliyat was prepared in their names but it did not
confer any right. In the year 1958 defendant nos. 1 and 3 approached Hazaribagh
Municipality for bifurcation of holding of Plot No. 582 and it was accordingly
bifurcated.
5. On the basis of the pleadings of the parties, issues were framed. The
main Issue No. VI is whether the sale deed dated 21.6.1972 executed by defendant
nos. 1, 3 and 4 in favour of defendant no. 7 was null and void and not acted upon?
6. The learned trial Court has recorded the finding of fact the plaintiffs
have failed to prove the partition in the manner alleged by them, it stands accepted
that on the date of execution of kabuliat, the family was joint. Accordingly, it was
held that plaintiffs failed to prove the suit land was acquired by Bhatan Sao and
Durga Sao jointly having equal share each. They also failed to prove that 71.5' x 100'
of the suit land was allotted to Durga Sao in any family partition. In view of these
findings the relief claimed by the plaintiffs was refused.
7. The Court of appeal concurred with the finding of fact on Issue No. VI
and held that the property in question was the joint family property. On the question
whether the defendant nos. 1, 3 and 4 had authority to sell it to defendant no. 7 it was
held that it was valid and in accordance with law.
8. This appeal has been admitted to be heard on the substantial question of
law whether when the Courts below found that there was no partition of the suit
property could have held that the sale deed dated 21.6.1972 by the defendant nos. 1, 3
and 4 in favour of defendant no. 7 was legal and valid?
9. The question has been answered in Gajara Vishnu Gosavi v. Prakash Nanasaheb
Kamble, (2009) 10 SCC 654 in which it has been held that
"13. Thus, in view of the above, the law emerges to the effect that in a given case an
undivided share of a coparcener can be a subject-matter of sale/transfer, but
possession cannot be handed over to the vendee unless the property is partitioned by
metes and bounds, either by the decree of a court in a partition suit, or by settlement
among the co-sharers."
From the above authority it follows that there is no interdict to sell the
undivided share of the Joint family property by a co-parcener of his share, but the
vendee cannot get possession unless it is partitioned. Under the aforesaid facts and
circumstance of the case, I do not find any illegality in the finding recorded by the
learned Court below that the sale was legal and valid. The impugned Judgment is
accordingly affirmed.
The appeal stands dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 11th January, 2022
AFR / AKT
