Lrs Of Deva Ram vs State Of Rajasthan
2023 Latest Caselaw 250 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 945/2022

1. Deva Ram, S/o Chela Ram (Deceased Through His LRs) 1/1. Chhanwar Lal S/o Late Shri Deva Ram, Aged About 64 Years 1/2. Amrit Lal S/o Late Shri Deva Ram, Aged About 50 Years, 1/3. Mangi Bai Wd/o Late Shri Deva Ram, Aged About 83 Years, 1/4. Ahilya D/o Late Shri Deva Ram, Aged About 62 Years,

2. Narpat Singh S/o Late Shri Deva Ram (Deceased), Through His LRs 2/1. Smt. Saroj Wd/o Late Shri Narpat Singh, Aged About 54 Years, 2/2. Arjun Singh S/o Late Shri Narpat Singh, Aged About 34 Years, 2/3. Tarun Singh S/o Late Shri Narpat Singh, Aged About 30 Years, 2/4. Shammu D/o Late Shri Narpat Singh, Aged About 28 Years, All B/c Mali, R/o Sankhlon Ka Bass, Magra Punjla, Jodhpur

----Appellants Versus

1. State Of Rajasthan, To Be Served Through Tehsildar, Revenue, Jodhpur.

2. Board Of Revenue, For Rajasthan At Ajmer.

3. Revenue Appellate Authority, Jodhpur.

4. Sub Divisional Officer, Jodhpur.

5. Jai Singh S/o Dhan Singh Sankhla, R/o. Imertia Bera, Paota C Road, Jodhpur.

6. Loon Singh S/o Pusa Ram Mali, R/o. Mandir Wala Bera, Mataji Ka Than, Magra Punjla, Jodhpur.

7. Mukesh S/o Hari Singh Mali, R/o. Sankhlon Ka Bass, Char Thambo Ki Gali, Magra Punjla, Jodhpur.

8. Rakesh S/o Hari Singh Mali, R/o. Sankhlon Ka Bass, Char Thambo Ki Gali, Magra Punjla, Jodhpur.

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9. Pratap Ram S/o Shri Kunji Mali, R/o. Navoda Bera, Magra Punjla, Jodhpur At Present Gali No.2, Parihar Nagar, Bhadwasiya, Jodhpur.

10. Triloka Ram, S/o Uda Ram Mali (Since Deceased) Through LRs 10/1. Smt. Bai Chandia Wd/o Late Triloka Ram, R/o Mandir Wala Bera, Mata Ka Than, Magra Punjla, Jodhpur. 10/2. Achala Ram S/o Late Triloka Ram, R/o Basni Tamboliya, Jodhpur.

10/3. Gaje Singh S/o Late Triloka Ram, R/o Mandir Wala Bera, Mata Ka Than, Magra Punjla, Jodhpur. 10/4. Laxman Singh S/o Late Triloka Ram, Through Deceased LRs 10/4/1. Smt. Yashoda W/o Laxman Singh, R/o Mandir Wala Bera, Mata Ka Than, Magra Punjla, Jodhpur. 10/4/2. Arun S/o Laxman Singh, R/o Mandir Wala Bera, Mata Ka Than, Magra Punjla, Jodhpur.

10/4/3. Ram Singh S/o Laxman Singh, R/o Mandir Wala Bera, Mata Ka Than, Magra Punjla, Jodhpur. 10/4/4. Smt. Sapna D/o Laxman Singh, W/o Sandeep, R/ o Padala Bera, Mandoor, Jodhpur.

10/5. Smt. Damyanti D/o Triloka Ram, W/o Madan Mohan, R/o Jeevan Das Ka Kaun, Nagori Gate, Jodhpur.

11. Shiv Prakash Soni S/o Shri Lal Chand Soni, R/o. Shahpura Mohalla, Moti Chowk, Jodhpur.

12. Madan Singh S/o Shri Mana Ram, R/o. Navoda Bera, Magra Punjla, Jodhpur.

13. Suresh S/o Shri Mana Ram Mali, R/o. Navoda Bera, Magra Punjla, Jodhpur.

14. Sher Singh S/o Shri Pep Singh Rajput, R/o. Plot No.110 A, Hanwant BJS Colony, Jodhpur.

15. Mukesh S/o Nand Kishore, R/o. Mathania, District Jodhpur.

16. Omwati W/o Shri Mahipal Singh, R/o. Rajeev Nagar, D Sector, Plot No.47, Jodhpur.

17. Hanuman Singh S/o Dhan Singh Rajput, R/o. Hanwant, B1, BJS Colony, Jodhpur.

18. Gyandra Singh S/o Shri Nebas Singh, R/o. 7Th A Road,

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Shakti Nagar, Jodhpur.

19. Ramendra Singh S/o Shri Nebas Singh, R/o. 7Th A Road, Shakti Nagar, Jodhpur.

20. Smt. Santosh Kanwar W/o Inder Singh Rajput, R/o.

Mohan Nagar, BJS Colony, Jodhpur.

21. Saroj Kachhwaha W/o Gajendra Singh Mali, R/o. C/o.

Pratap Singh Kachhwaha, Juni Bagar, Inside Nagori Gate Ki Gali, Jodhpur.

22. Sushila Kachhwaha W/o Udai Singh, R/o. Hanumanji Ka Badia, Soorsagar, Jodhpur.

23. Smt. Shashikala Bhati W/o Udai Singh Bhati, R/o.

Hanuman Vatika Ke Pass, Ramola, Kaga Road, Jodhpur.

24. Smt. Chhaila Kanwar W/o Samandar Singh, R/o. BJS Colony, Jodhpur.

25. Smt. Om Kanwar W/o Gajendra Singh, R/o. BJS Colony, Jodhpur.

26. Jitendra Singh S/o Ugam Singh Bhati, R/o. Plot No.3A, Shakti Nagar, Paota C Road, Jodhpur.

27. Kiran Kanwar W/o Ummed Singh, R/o. Bjs Colony, Jodhpur.

----Respondents

For Appellant(s) : Mr. J.L. Purohit, Sr. Advocate with Mr. Shashank Joshi For Respondent(s) : Mr. Nitin Trivedi, Respondent No.11

HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MS. JUSTICE REKHA BORANA

Judgment

09/01/2023

The present special appeal has been filed against the order

dated 12.10.2022 passed by the learned Single Judge only to the

extent an application preferred by respondent No.11-Shiv Prakash

Soni with a prayer for direction to get the sale deed registered in

his favour and for permission to raise construction has been

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allowed. Before proceeding further the brief facts of the case are

summarised as under :

One Deva Ram preferred a suit for partition with a specific

averment that he, Loon Singh, Pratap Ram and Triloka Ram have

1/4th share each in the disputed property and are in joint

possession of the said land. He, in the suit prayed for partition of

the said land by metes and bounds. In the said suit, an application

under Section 212 of the Rajasthan Tenancy Act, 1955 was

preferred by him for interim injunction in which at the first

instance, an interim order was granted on 27.05.2004 and

ultimately the same was finally decided on 10.02.2006 whereby

the parties were directed to maintain status quo regarding the

disputed property.

One suit for specific performance of the contract was filed by

one Shiv Prakash Soni (respondent No.11 in the present appeal)

with an averment that Triloka Ram, one of the coparcener had

entered into an 'agreement to sell' in his favour for 9 bighas of

land out of his share. When the sale deed was not got registered

by Triloka Ram, he preferred a suit for specific performance of the

contract. During pendency of the said suit, Triloka Ram expired

and the legal representatives of Triloka Ram ultimately entered

into a compromise with the applicant-Shiv Prakash Soni. Vide the

compromise, the legal representatives of Triloka Ram consented to

get the sale deed for 5 bighas and 10 biswa of land registered in

favour of the applicant. In terms of the compromise entered into

between the parties, the suit for specific performance of the

contract was decreed vide judgment and decree dated

16.04.2015.

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When, in spite of the suit being decreed in his favour, the

sale deed was not registered by the legal representatives of

Triloka Ram, an application before the writ Court in the present

proceedings was preferred by Shiv Prakash Soni with a submission

that because of the interim order operating in the present writ

petition, the sale deed is denied to be got registered in his favour

and therefore, appropriate orders be passed for registration of the

sale deed in his favour and for permission to raise construction on

the said land.

When the matter was listed for orders on the said

application, with the consent of the parties, learned Single Judge

proceeded on to dispose of the writ petition itself with a direction

to the Assistant Collector-cum- Sub-Divisional Officer, Jodhpur to

decide the suit within a period of one year. However, while

disposing of the writ petition, the learned Single Judge also

proceeded on to allow the application preferred by respondent

No.11 (Shiv Prakash Soni) and directed for sale deed to be got

registered in his name and also permitted him to raise the

construction subject to outcome of the ultimate decision of the

pending suit for partition. Against the said part of the order, the

present special appeal has been preferred.

Learned senior counsel appearing for the LRs of appellant

Deva Ram submitted that the said order in favour of respondent

No.11 could not have been passed by the learned Single Judge.

Learned counsel submitted that unless and until the suit for

partition is decided by the competent court, the specific shares of

the coparceners are not defined and therefore, any sale deed in

favour of respondent No.11 could not be registered. Further, when

the share of the coparcener himself is not defined, the

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construction on an unidentified share of land could not have been

permitted. Learned counsel relied upon a judgment of the Hon'ble

Apex Court in the case of M.V.S. Manikayala Rao vs. M.

Narasimhaswami and Ors.; AIR 1966 SCC 470 and submitted

that the only right available to the purchaser of a coparcener's

undivided interest is to sue for partition of the property and he is

not entitled to possession of what he has purchased.

Per contra, learned counsel appearing for the respondent

No.11-applicant Shiv Prakash Soni submitted that after the suit for

specific performance of contract having been decreed in his favour

on the basis of a compromise entered into between one of the co-

sharers i.e. the seller, the registration of the sale deed in his

favour cannot be denied. He further submitted that against the

judgment and decree dated 16.04.2015 passed in his favour, the

present appellant-Deva Ram preferred a leave to appeal before

this Court which was dismissed vide judgment dated 24.02.2021.

Moreover, at the first instance, Deva Ram preferred an application

under Order I Rule 10 of Code of Civil Procedure for impleadment

as a party in the suit, which was rejected on 23.08.2006. The writ

petition preferred against the said order was also dismissed on

22.11.2006 and the special appeal against the same was also

dismissed on 19.01.2007. Therefore, now after rejection of the

application of Deva Ram for impleadment as well as rejection of

leave to appeal, it is not open now for LRs of plaintiff-Deva Ram to

contend that the sale deed should not be permitted to be executed

in his favour. Learned counsel further submitted that it is not in

dispute that Triloka Ram is entitled for 1/4 th of share in the

property and it measures to almost 16 bighas of land. The sale

deed consented to be executed in favour of the applicant is only

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for 5 bighas and 10 biswa which is clearly less than the share of

the seller Triloka Ram, therefore, the registration of sale deed in

his favour would even otherwise not affect the right of plaintiff-

Deva Ram or any other coparcener in any manner. Learned

counsel therefore, submitted that the order impugned is perfectly

in terms of law and deserves to be upheld.

Heard learned counsel for the parties and perused the

material available on record.

A perusal of the record shows that the 'agreement to sell' in

favour of the applicant-Shiv Prakash Soni was entered by Triloka

Ram on 12.01.2004 i.e. prior to filing of the suit for partition (filed

on 26.05.2004) as well as the interim order dated 27.05.2004

being passed by the Revenue Court. A bare perusal of the cause

title of the suit for partition preferred by Deva Ram shows that the

applicant-Shiv Prakash Soni was also impleaded as a party to the

suit as defendant No.6 and a specific averment regarding the

'agreement to sell' entered by Triloka Ram in his favour has been

made in the plaint. Meaning thereby, the 'agreement to sell' of

which specific performance was prayed for, had been entered into

prior to filing of suit for partition and even prior to any interim

order having come into existence. Admittedly, it has been held by

the civil court that Deva Ram was not a necessary party in the suit

for specific performance and therefore, his application for

impleadment was rejected not only by the learned single Judge

but also by the Division Bench of this Court. Even the leave to

appeal preferred by Deva Ram against the judgment and decree

dated 16.04.2015 has also been dismissed. In the opinion of this

Court, the execution of the decree passed by the competent civil

court cannot now be held to be unexecutable in garb of the fact

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that the suit for partition is pending between the coparceners.

Moreover so, when the purchaser i.e. the present applicant-Shiv

Prakash Soni is also a party to the said suit. It is clear and rather

admitted on record that Triloka Ram is entitled to 1/4 th share in

the property which measures to almost 16 bighas of land and vide

the decree, only 5 bighas and 10 biswa of land has been directed

to be got registered in favour of the applicant therefore, clearly

the registration of the said document would not affect the right or

share of any of the other coparceners.

So far as the identification of the share is concerned, the

registration of the sale deed qua a specified area of land would not

necessarily require the particular identified portion. Therefore, this

Court is of the specific opinion that the direction to get the

registration of sale deed in favour of the applicant-Shiv Prakash

Soni is perfectly valid and does not require any interference. So

far as the permission to raise construction is concerned, this Court

is of the opinion that the same could not have been granted in

absence of the identified shares of all the coparceners and cannot

be granted until partition is directed by metes and bounds.

So far as the judgment in the case of M.V.S. Manikayala

Rao's (supra) is concerned there is no dispute on the ratio as laid

down in the said judgment that only right available to a purchaser

of a coparcener's undivided interest 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 coparcener whose share

he had purchased.

Admittedly, in the present matter, the applicant-Shiv Prakash

Soni is a party to the suit for partition and therefore, would be

entitled to pray for possession of his identified share of land

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corresponding to the seller coparcener. But as opined above, he

cannot be denied of registration of the sale deed in his favour

because it is only on the strength of that document that he would

be entitled to pray for the same.

In view of above analysis, the present special appeal is partly

allowed. The order impugned to the extent it permits the applicant

-respondent No.11 to raise construction is set aside. However, the

order directing the respondent No.11 to get the sale deed

registered in his favour is upheld.

All pending applications also stand disposed of.

                                   (REKHA BORANA),J                                        (SANDEEP MEHTA),J
                                    38-Vij/-









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