This is the defendant's second appeal arising out of a suit for injunction restraining the defendant from interfering in possession of the property, mentioned in the Schedule-'A' of the plaint.
The allegation made in the plaint by the plaintiffs / respondents is that house in dispute was orally partitioned between the defendant / appellant and his two real brothers Anil Kumar and Shushil Kumar Saxena, according to which north portion of the property, described in Schedule -Ka of the plaint, has fallen into the share of Shushil Kumar Saxena. It has been sold subsequently to the plaintiffs vide registered sale deed dated 30.05.1997 and possession of that has already been delivered to them. It was further alleged in the plaint that a stair case (Zina) had fallen into the share of Shushil Kumar Saxena, which also form part of the sale deed. In respect of stair case, the defendant was granted a licence for a period of 2-3 years, which has subsequently been revoked by a notice, but in spite of alleged revocation, the defendant / appellant did not stop using stair case, therefore, the plaintiffs prayed for a decree of injunction against the defendant restraining him from using the stair case and for delivery of possession of the portion on the first floor of the house.
The defendant / appellant filed a written statement denying the alleged partition as well as grant of licence. It was specifically pleaded that vide sale deed dated 30.05.1997 an unpartitioned share had been transferred by Shushil Kumar Saxena in favour of the plaintiffs and parties were residing according to their convenience as co-sharer of the property. The plaintiffs have brought on record an alleged partition deed dated 16.09.1996, as if the terms of the oral partition has been recorded in the said deed. According to the appellant, the said document has completely been ignored by both the courts on the ground that same was inadmissible in evidence, as such, alleged oral partition formed the basis of the decree impugned. The plaintiff / respondent No.1, who examined himself as PW-1, has admitted that the disputed stair case was the only stair case which was being used by the defendant / appellant since the purchase of the house. DW-1 has also been examined and he has denied the validity of the alleged partition deed dated 16.09.1996 and also the signature thereon.
The trial court vide judgment and order dated 30.09.2010 decreed the suit. The appeal filed by the defendant / appellant has been dismissed vide judgment and order dated 09.03.2011.
Sri Kshitij Shailendra, learned counsel for the appellant submitted that both the courts have committed an error apparent on the face of the record in ignoring this aspect of the matter that there was no partition strictly in accordance with law by metes and bounds, therefore, in case one of the co-sharer sold the property, he cannot claim an exclusive share of the said property. If the court below have ignored the partition deed, which was inadmissible in evidence, there was absolutely no justification to decree the suit. Further submission has been made that both the courts below have committed error apparent on the face of the record in not understanding the nature of the case as well as transfer of rights, governed by the law of partition and Transfer of Property Act. Admittedly, appellant is co-owner of the property along with his two real brothers, therefore, in absence of a valid partition deed by metes and bounds the sale deed dated 30.05.1997 could be in respect of unpartitioned share of one of the co-owners, namely, Shushil Kumar Saxena, therefore, the suit about specific portion of the properly jointly owned by three real brothers was not maintainable. It is an admitted case of the parties that the defendant / appellant was residing on the first floor of the house and disputed stair case was the only stair case in existence in the house, which was being used by the defendant / appellant to have access to the first floor accommodation, but the courts below have not taken into consideration the aforesaid fact and the affect of the decree will be that he will not be in a position to enter into his house, therefore, decree passed by the courts below virtually is impermissible under the law. The courts below have assumed that the parties were residing as per oral partition affected amongst three real brothers, though such partition deed has been disbelieved by the courts below. Further the courts below have not taken into consideration and decided the matter against the defendant that a witness to the sale deed is always witness of execution of the document and not a witness of contents of the document.
There is no dispute to this effect that under the Hindu Law, the oral family settlement is permissible, if the same is reduced in writing, but it must be through a registered document. Admittedly, the document dated 16.09.1996 was an unregistered document and the photocopy of the same was filed by the plaintiffs / respondents, therefore, there was nothing to prove otherwise by the defendant regarding the alleged partition amongst co-sharers. Further, the courts below have failed to consider the claim of the plaintiffs / respondents regarding grant and revocation of licence, therefore, in view of provisions of Easements Act, 1882, in absence of any licence deed, suit can be decreed, that has not been taken into consideration. Admittedly, the suit has been filed after lapse of seven years from the date of execution of the sale deed, therefore, that was beyond period of limitation, which is three years according to law of limitation, therefore, the court should have dismissed the suit only on the ground of limitation. The co-sharer has transferred his undivided share and irrespective of wrong recital mentioned in the sale deed, the sale could be deemed to be a sale of undivided share and no contrary interpretation can be made, therefore, finding recorded by the courts below to this aspect is against the settled principle of law. On behalf of the plaintiffs / respondents no witness regarding proving the oral partition has been produced.
The trial court as well as the lower appellate court has also not taken into consideration the fact that the suit itself was not maintainable for want of impleadment of co-sharers to the property. Further, even the vendor has not been impleaded as a party, who according to appellant was a necessary party. Therefore, the courts below should have dismissed the suit on this ground alone. As regards the finding recorded by the court below that as the defendant was a witness to the execution of sale deed, the same was not fatal to the defence of the defendant / appellant with regard to the transfer of undivided share in the property. In view of Section 58 of the Indian Evidence Act, 1872, which provides that the fact admitted to the parties need not to be proved. In the alleged deed of partition, there is no mention of stair case. The courts below have also not taken into consideration that the unregistered document dated 16.09.1996 was in breach of the provisions of Section 17 of Indian Registration Act, 1908, unless and until it is proved regarding grant of licence, believing on the said fact, the judgment and order passed by the courts below are totally in disregard of the provisions of Sections 52 to 62 covered by Chapter 6 of the Indian Easements Act, 1882.
Learned counsel for the appellant has placed reliance upon para 23 of the judgment reported in AIR 2001 Supreme Court 61; Gautam Paul v. Debi Rani Paul and others, which is being quoted below:-
"23. We are in agreement with this opinion.
There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. I n that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the Legislatures clearly did not intend to confer. The legislature was aware that in a Suit for Partition the stranger/outsider, who has purchased a share, would have to be made a party. The Legislature was aware that in a Suit for Partition the parties are inter-changeable. The Legislature was aware that a Partition Suit would result in a decree for Partition and in most cases a division by meters and bounds. The Legislature was aware that on an actual division, like all other co-sharers, the stranger/ outsider would also get possession of his share, yet the Legislature did not provide that the right for pre-emption could be exercised "in any Suit for Partition". The Legislature only provided for such right when the "transferee sues for partition". The intention of the Legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The interpretation given by the Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted than in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a Suit for Partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law."
Further reliance has been placed upon paras 21 & 25 of the judgment reported in AIR 1990 Supreme Court 867; Dorab Cawasji Warden v. Coomi Sorab Warden and others, which are being quoted below:-
"21. We may respectfully state that this is a correct statement of the law. There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms "undivided family" and "dwelling house" have the same meaning in both the sections.
25. The next question for consideration is whether irreparable injury would be caused to the appellant which could not be compensated in terms of money and whether the balance of convenience is in favour of the appellant. While section 44 does not give a transferee of a dwelling house belonging to an undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee, section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with law when the transferee filed a suit for partition. Both these are valuable rights to the members of the undivided family whatever may be the object or purpose for which they were conferred on such members. As we have pointed out in some cases it is stated that the right to joint possession is denied to a transferee in order to prevent a transferee who is an outsider from forcing his way into a dwelling house in which the other members of his transferee's family have a right to live. In some other cases giving joint possession was considered to be illegal and the only right of the stranger purchaser is to sue for partition. All these considerations in our opinion would go only to show that denying an injunction against a transferee in such cases would prima facie cause irreparable injury to the other members of the family."
Further reliance has been placed upon para 11 of the judgment reported in AIR 1973 Patna 142 (V 60 C 49); Harendra Nath Mukharjee v. Shyam Sunder Kuer and others, which is being quoted below:-
"11. It has been urged on behalf of the respondent No.1 that when a pleader commissioner has already effected partition of a dwelling house and allotted separate Takhtas to different members of the family and that the only thing that is required to be done is a formal delivery of possession to the members of the family in accordance with that allotment, the dwelling house cannot be said to belong to an undivided family at the time the transfer was made in favour of respondent No.1 so as to attract the provision of Section 4 of the Act. The authorities have consistently observed that an undivided family means a family which is undivided qua dwelling house in question. It may be true that the dwelling house in the instant case has been divided by metes and bounds on paper by a pleader-commissioner who has allotted separate Takhtas to different members of the family and also by the Court passing the final decree but till actual delivery of possession is not effected and the house divided at the spot in accordance with the report of the pleader commissioner and the final decree, the family cannot be said to be divided quo the dwelling house. In the eye of law the dwelling house should be deemed to be undivided amongst the members of the family until they get separate possession over their respective shares in accordance with the report of the pleader commissioner and final decree."
Further two decisions have also been placed reliance upon by the learned counsel for the appellant i.e. (2009) 7 Supreme Court Cases 614; Ram Pat and others Vs. State of Haryana, para 24 of which is being quoted below:-
"24. The accused admittedly did not purchase any specific portion of the property. They purchased undivided share. By reason thereof, in law, they did not acquire any right to obtain possession of the lands. Harda Ram and his family being the co-sharers did not give any consent for handing over their possession in their favour. In law, therefore, the accused persons being purchasers of an undivided share merely acquired a right to sue for partition. In M.V.S. Manikayala Rao v. M. Narasimhaswami this Court held: (AIR p. 473, para 5) "5....Now, it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right 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."
Another judgment relief upon is reported in (2008) 7 Supreme Court Cases 46; Hardeo Rai Vs. Sauntala Devi and others, para 26 of which is being quoted below:-
"Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition."
Taking support of the aforesaid judgments, learned counsel for the appellant has submitted that if there is sale of undivided share in the family property, regarding right of such purchaser, it has been held by the apex court that it can be transferred subject to condition that purchaser without consent of other co-sharers cannot get the possession what he has purchased. Purchase of undivided share in the property would not give the vendee right to possession.
On the other hand, Smt. Rama Goel Bansal, learned counsel for the respondents submits that as regards the contention of the appellant, under the law there is no necessity to get registration of the memorandum of partition. It is an admitted case of the parties that partition has taken place and respective parties are in possession of the property in dispute. The partition of 1996 was a part of the sale deed and it has been verified by the co-sharers. She has brought to the notice of the Court written statement, filed by the appellant, in para 11 this fact has been admitted that all the three brothers are owner of the house in question and Shushil Kumar Saxena has sold out his share. In para 12 this fact has been admitted that after execution of the sale deed he has given the possession of property, which was in his share and possession.
Further submission has been made that from the perusal of the sale deed it is clear that the stair case, which is in dispute in the present case, was fallen in the share of the brother of the appellant and it was sold out to the plaintiffs / respondents. Further, in the sale deed all the three brothers were witnesses and they have signed as witnesses, which is clear from the statement made by the defendant / appellant himself. Now, he submits that though he has signed the sale deed as a witness, but the contents of the sale deed was not explained to him. Once the family partition is accepted by the parties and they were in possession of respective share of the property in dispute, then whether at this stage the defendant / appellant can deny the same. The trial court as well as the appellate court has recorded a specific finding that DW-3 in his statement and the cross-examination has admitted that he has executed a sale deed of his own share which is in north of the house in dispute having an area of 36.67 sq. yds. and he has executed a sale deed of Gallery as well as stair case. DW-3 has admitted in his statement that he was living in the north portion of the ground floor and towards south Anil Kumar was living. He has further stated in the statement that the defendant was living on the first floor of the said house towards south, therefore, it is clear that all the brothers were living separately and there was a partition between them. She further submits that the cases cited by the learned counsel for the appellant will not be applicable in the present case being the fact that unless and until it is proved by the defendant / appellant that it was a joint property and it was not partitioned with their consent and the co-sharers were not living in the said property separately according to their own shares , the judgment cited will not be applicable.
I have considered the submission of the parties and perused the record. From the record it appears that the house in dispute belong to three brothers. One of the brother Shushil Kumar Saxena has executed a sale deed on 30.05.1997 of his own share, which was in his possession. The partition deed, according to the plaintiff, was on record, which shows that there was a mutual partition of the property in dispute and all the brothers were living separately of their own rights. DW-3 in his statement has admitted this fact that he has sold his own share which is towards north of the ground floor, which comes to 36.67 sq. yds.. He has also admitted this fact that he has executed the sale deed of the stair case as well as Gallery. The defendant / appellant is witness in the sale deed. He is an educated person and there cannot be any presumption, as submitted, that he was not aware regarding the contents of the sale deed. The contention of the appellant to this effect that he may be witness in the sale deed, but he was not aware regarding the contents of the sale deed, therefore, that cannot be said to be binding upon him, a finding has been recorded that from the perusal of the sale deed it has been proved that northern portion of said house comprising stair case, Gallery and open space at the ground floor and kitchen, Bathroom and Varanda at the first floor of the house in question, as shown in Schedule 'B' of the plaint fell in the exclusive share of Shushil Kumar Saxena. Now, the defendant / appellant cannot say that there was no partition. It has also been admitted by the defendant that after execution of the sale deed a wall has been constructed towards south and no objection was raised. It has also been noted that the defendant has admitted this fact that there was two stair cases in the house which goes to first floor. After recording such finding the trial court has recorded a finding that it clearly goes to show that there was a partition between the parties. As regards the contention raised by the learned counsel for the appellant that no licence was given, it is incorrect to say that there was any permission or any licence was granted, but a finding has been recorded that by registered notice dated 13.08.2004 licence has been revoked. The trial court, considering the evidence on record, has recorded a finding that from the perusal of the sale deed and the contents of the sale deed it clearly appears that in the sale deed the portion which comes under the share of Shushil Kumar Saxena in pursuance of partition dated 16.09.1996 has been sold out and the possession to that effect has been given.
The appellate court has also considered the issues in the prospective manner and has recorded a finding that the trial court has rightly held that through oral family settlement amongst the defendant and his two brothers north portion of the said house described in Schedule 'A' of the plaint fell in the share of Shushil Kumar Saxena, who sold the same to the plaintiffs. It was not undivided share of Shushil Kumar Saxena in the house in question, which has been sold to the plaintiffs. The appellate court has further recorded a finding on the basis of record that trial court has rightly held that once the portion fell in the share of Shushil Kumar Saxena if that was purchased by the plaintiff, then how and in what capacity the defendant could remain in occupation of the aforesaid portion. The court below has rightly held that only one inference can be drawn that the defendant occupied the said portion earlier as a licencee of Shushil Kumar Saxena and after the execution of the sale deed also. A further finding has been recorded that the defendant / appellant has failed to prove that he is occupying the said portion within his co-ownership rights.
As regards decisions cited on behalf of the appellant there is no dispute to this effect that if the property in dispute is undivided and if some of the co-sharer transfer his share to a third person, then the purchaser without consent of other co-sharer cannot enter in possession what he has purchased, but in the present case from the document and the conduct of the parties it appears that mutual partition of the property has taken place and they were in possession of their respective shares. In such circumstances, decisions cited by the learned counsel for the appellant will not be applicable in the present case because finding to that effect on the basis of relevant record has been recorded that a family partition had taken place and memorandum of partition was there and all the co-sharers were in possession separately of their own share, therefore, one of the person can execute a sale deed and the person who purchased the property cannot be denied possession of his respective share. Further, it has to be seen that at the time of execution of sale deed of his own share by one of the brother, the other two persons including the defendant / appellant was witness and he was aware regarding contents of the sale deed, which includes the stair case and Gallery. Therefore, if a person who has purchased the property has permitted someone to use the said stair case that can only be treated to be a permission like licence and it can be revoked by the person concerned.
In view of the aforesaid facts and circumstances, in my opinion, the findings recorded by the court below are findings of fact after consideration of relevant record. Unless and until the finding recorded by the courts below are perverse and based on no evidence, no interference can be made by this Court while exercising jurisdiction under Section 100 of the Civil Procedure Code. As no substantial question of law is involved in the present appeal, it is hereby dismissed.
No order as to costs.
Order Date :- 19.05.2011 NS