Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5031 of 2018 Petitioner :- Ashok Yadav Respondent :- Prem Narayan Rai Counsel for Petitioner :- Rajesh Kumar Srivastava Counsel for Respondent :- Shambhavi Nandan
Hon'ble Mahesh Chandra Tripathi,J.
Sri Rajesh Kumar Srivastava appears for the petitioner and Sri B.K.Srivastava, learned Senior Counsel assisted by Sri Shambhavi Nandan appears for the respondent.
The petitioner is before this Court assailing the validity of the order dated 19.5.2018 passed by Additional District Judge, Court No. 4, Varanasi in Misc. Appeal No. 74 of 2018 (Prem Narayan Rai Vs. Ashok Yadav) by means of the which, the court below has allowed the appeal setting aside the order dated 30.4.2018 passed by Additional Civil Judge (Sr. Division), Court No. 2, Varanasi in Original Suit No. 1046 of 2012 (Prem Narayan Rai Vs. Ashok Yadav) whereby he had rejected the injunction application No. 6 Ga 2.
The brief matrix of the case are as follows.
Late Bhuveshwar Rai who was initially a tenant in House No. 25/9 Chandan Shaheed Purani Taksal Kabirchaura, Varanasi had purchased the said house on 5.10.1974 in the name of himself, his wife late Seeta Devi and his nephew Prem Narayan Rai. Late Bhuvneshwar Rai died on 19.5.1982. After his demise, his wife late Seeta Devi had executed registered sale deed dated 26.12.1990 qua to her share qua 1/3rd share of the house in question in favour of late Bhairoram Yadav(petitioner's father) who was initially a tenant in the house in question. It is also alleged that as late Bhuvneshwar Rai and late Seeta Devi were issueless and Prem Narayan Rai tried to grab the entire portion of the house in question. Consequently, he preferred Original Suit No. 849 of 1990 assailing the validity of the registered sale deed dated 26.12.1990 executed by late Seeta Devi in favour of late Bhairoram Yadav and also sought for an injunction order. Plaintiff claimed his right on the basis of alleged unregistered Will dated 15.5.1982 executed by late Bhuvneshwar Rai. Finally, the aforementioned suit was dismissed by judgment and order dated 18.2.2009. Thereafter, Civil Appeal No. 28 of 2009 (Prem Narayan Rai Vs. Smt. Bechna Devi and others) had also the same fate vide judgment and decree dated 20.3.2010 and admittedly, Second Appeal No. 764 of 2010 (Prem Narayan Rai Vs. Smt. Bechna Devi & others) is pending consideration before this Court without any interim order. Thereafter, the plaintiff/opposite party filed another suit being Original Suit No. 1046 of 2012 (Prem Narayan Rai Vs. Ashok Yadav) seeking permanent injunction against defendant/petitioner restraining him from taking possession and further not to destroy the house in dispute till disposal of the suit on the ground that the petitioner/defendant tried to demolish and destroy the house in dispute claiming his 1/3rd share in the same without any partition or division on spot.The trial court considering earlier litigation had rejected injunction application 6C2 in Original Suit No. 1046 of 2012 vide order dated 30.4.2018. Feeling aggrieved by the said order, plaintiff/respondent preferred Misc. Appeal No. 74 of 2018 (Prem Narayan Rai Vs. Ashok Yadav), wherein, the petitioner/defendant had filed an affidavit on 10.5.2018 denying each and every averment as stated in the misc. appeal. By the order impugned dated 19.5.2018, the appellate court had set aside the order dated 30.4.2018 passed by learned trial court relying the provisions of Section 44 of The Transfer of Property Act 1882 (hereinafter referred to as "Act 1882"). Hence, this writ petition.
Sri Rajesh Kumar Srivastava, learned counsel for the petitioner in support of his submissions has vehemently contended that the lower appellate court has committed manifest error while ignoring the material aspect of the matter and erred in law relying upon the provision of Section 44 of the Act 1882, inasmuch as father of the petitioner was neither stranger nor required to get possession qua to the 1/3rd share of the house in question as he was already in possession being a tenant and so far as the sale deed dated 26.12.1990 is concerned, the same has been assailed by the plaintiff-respondent and has lost upto the first appellate court and matter is pending consideration before this Court in Second Appeal without any interim order. The appellate court had completely ignored the judgment and decree passed in Original Suit No. 849 of 1990, wherein, the learned court below had rightly decreed by holding, therein, that late Seeta Devi had full right to execute registered sale deed dated 26.2.1990 qua to her 1/3rd share in disputed house, then in such circumstances, without having any prima facie case, balance of convenience and irreparable loss to the appellant, the appellate court in most arbitrary manner passed the order impugned and as such, the same is unsustainable.
Per contra, Sri B.K.Srivastava has vehemently opposed the writ petition and submits that so far as the earlier suit is concerned, wherein, plaintiff-respondent had assailed the validity of the alleged sale deed dated 26.12.1990 executed by late Seeta Devi qua to her 1/3rd share in disputed house, no doubt, the aforementioned suit in question was rejected and the matter has reached to the second appellate stage which is pending consideration before this Court.Meanwhile, once the petitioner-defendant tried to demolish and destroy disputed house claiming his 1/3rd share without any partition or division on spot, therefore, plaintiff-respondent had no other option except to institute another suit as there was new cause of action and asked for interim injunction against the petitioner-defendant from restraining demolition of any portion of the disputed house and restrain him from taking possession. The trial court has manifestly erred in law in taking into irrelevant considerations and solely relied and has taken into consideration the previous litigation and in arbitrary manner an injunction has been denied. Learned appellate court had rightly proceeded in the matter and appreciated the provisions contained under Section 44 of the Act 1882. He further makes submission that admittedly the property in dispute is a dwelling house belonging to undivided family and this much is also admitted that the petitioner does not belong to family and in the garb of registered sale-deed (1/3rd share), the petitioner-defendant tried to demolish the disputed house specially walls without any partition and as such there was new cause of action and the plaintiff- respondent rightly approached to the trial court for an injunction and as such there is no infirmity or illegality which may warrant any interference in the appellate order and the present petition is liable to be dismissed.
Heard rival submissions and perused the record.
In order to appreciate the arguments of the parties, it would be appropriate to have a glance at Section 44 of the Act 1882.
"Transfer by one co-owner:- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".
The Section contemplates a transfer of share in immovable property. It deals with the share of a co-owner of immovable property who is legally competent to transfer his share. The transferee acquires the transferors right to joint possession or other common or part enjoyment of the property and a right to enforce partition of the share or interest so transferred at the date of transfer. The second part of Section 44 is quite clear. It dis-entitles a transferee of a share in a dwelling house belonging to an undivided family to joint possession or other common or part enjoyment of the house. It is a restriction on the rights of such a transferee to joint possession.
In the present matter, the trial court found that prima facie case, balance of convenience and irreparable loss were not in favour of the plaintiff-respondent and was also of the opinion that benefit of Section 44 of the Act 1882 could not be extended as on the basis of sale deed, the defendant- petitioner was already in possession (1/3rd share) as a tenant and the suit for cancellation of the sale deed had already been rejected and the Nagar Nigam, Varanasi had already accorded separate number qua to his share. While passing the order impugned, the appellate court has proceeded to consider that late Seeta Devi had sold her share (1/3) in favour of the petitioner's father and in the Original Suit No. 849 of 1990, the said sale deed has already declared as valid and the appeal has also been turned down as such the plaintiff cannot raise an objection regarding title of petitioner-defendant and as such the appellate court was also of the opinion that the said issue was not open to be agitated and need not to be answered. The issue involved in the present case is that the petitioner-defendant was in possession to his tenanted accommodation and without proper partition as he is not a member of the family, he cannot claim 1/3rd share of the disputed house. While passing the order impugned, the appellate court has also considered the judgments passed by this Hon'ble Court in Sheo Nath Seth Vs. Smt. Krishna Kumari Devi AIR 1973 All 496, Sri Ram & others Vs. Ram Kishan & others AIR 2010 All 125.
In M.V.S. Manikayala Rao Vs. M. Narasimhaswami and others AIR 1966 SC 470, the issue decided was relating to purchase of undivided shares of co-parceners at an execution sale. It was held that the purchaser is not entitled to possession of what he has purchased. His only right is to sue for partition and ask for allotment to him of that which on partition might be found to the share of the co-parcener whose share he had purchased. The question of adverse possession of the co- parceners was decided. The majority view was given in paragraph 5 and the minority view in paragraph 18. Both the views were clearly that the purchaser of share of a co- parcener cannot claim to be put in possession of any definite piece of the family property unless a partition has been made of the entire property. Paragraphs 5 and 18 are quoted hereunder:-
"5. As earlier stated the High Court held that Art. 144 applied. The application of this article seems to us to present great difficulties to some of which we like to refer. That article deals with a suit for possession of immovable property or any interest therein not otherwise specially provided for and prescribes a period of twelve years commencing from the date when the possession of the defendant becomes adverse to the, plaintiff. This article obviously contemplates a suit for possession. of property where the defendant might be in adverse possession of it as against the plaintiff. Now, it is well- settled that the purchaser of a copartner'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. His right to possession "would date from the period when a specific allotment was made in his favour": Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain (1) It would, therefore, appear that Sivayya was not entitled to possession till a partition had been made. That being so, it is arguable that the defendants in the suit could never have been in adverse possession of the properties as against him as possession could be adverse against a person only when he was entitled to possession. Support for this view may be found in some of the observations in the Madras full bench case of Vyapur v. Sonamm Boi Ammani, ILR 39 Mad 811:(AIR 1916 Mad 990 (2) FB).
18. Before dealing with the question as to which Article of the Limitation Act applies to the present case it is necessary to examine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. It is well settled that the purchaser does not acquire any interest in the property sold and he cannot claim to be put in possession of any definite piece of family property. The purchaser acquires only an equity to stand in the alienor's shoes and work-out his rights by means of a partition. The equity depends upon the alienation being one for value and not upon any contractual nexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession with them. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of, or interest in, the family property. Such a suit, however, will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor the corporate character of the family. (Mayne's Hindu Law, eleventh edition, page 489)."
The law on the issue was again considered by the Supreme Court in Dorab Cawasji Warden Vs. Coomi Sorab Warden reported in AIR 1990 SC 867 and it was again laid down to the same effect. Paragraphs 20 and 21 are quoted hereunder:-
"20. The decision in Nil Kamal Bhattacharjya & Anr. v. Kamak-shya Charan Bhattacharjya & Anr., AIR 1928 Cal. 539 related to a case of a group of persons who were not the male de-scendants of the common ancestor to whom the property in the suit originally belonged but were respectively the sons of the daughter of a grandson of the common ancestor and the sons of a daughter of a son of the said common ancestor. The learned Judge applied the principle enunciated in Sultan Begam v. Debi Prasad, (1908 ILR 30 AU 324 (FB) (supra) to this family and held that it was an undivided family since the house had not been divided by metes and bounds among themselves. The Madras High Court also followed and applied the ratio of this judgment in the decision in Sivaramayya v. Venkata Subbamma & Ors., AIR 1930 Madras 561. The next decision to be noted is the one reported in Bhim Singh v. Ratnkar., AIR 1971 Orissa 198. In that case the undivided family consisted of the plaintiff and the defendants 1 and 2 therein. The first defendant had alienated 1/3 of his half share in the house property in favour of defendants 7 and 10 who were the appellants before the High Court. The suit was filed for a permanent injunction restraining defendants 7 and 10 from jointly possessing the disputed house alongwith the plain- tiff and defendant 2. The facts as found by the courts were that by an amicable arrangement among plaintiff and defend- ants 1 and 2 they were living separately for a long time, had separated their residences and were living in different houses unconnected with each other but all situate in one homestead and that after the first defendant had alienated his separate interest as well as his separate house in favour of the alienees and in pursuance thereof the alienees were put in possession. After referring to the judgments we have quoted above and following the principles therein, Ranganath Misra, J. as he then was held (at p.201 of AIR):
"If in this state of things, a member of the family transfers his share in the dwelling house to a stranger paragraph 2 of section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the dwelling house although he would have the right to enforce a partition of his share. The object of the provision in section 44 is to prevent the intrusion of the strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share therein in favour of a stranger. The factual position as has been determined is that the property is still an undivided dwelling house, possession and enjoyment whereof are confined to the members of the family. The stranger- transferees being debarred by law from exercising right of joint possession which is one of the main incidences of co-ownership of the property should be kept out."
On the question whether the enjoyment of ascertained separate portions of the common dwelling house and the alienee taking possession made any difference the learned Judge quoted the following passage from Udayanath Sahu v. Ratnakar Bej, AIR 1967 Orissa 139 with approval (at Pp.141-142 of AIR):
"If the transferee (stranger) get into possession of a share in the dwelling house, the possession becomes a joint possession and is illegal. Courts cannot countenance or foster illegal possession. The possession of the defendant-transferee in such a case becomes illegal. Plaintiff's co-owners are entitled to get a decree for eviction or even for in- junction where the transferee threatens to get possession by force. If there had been a finding that there was severance of joint status but no partition by metes and bounds, defendant 1 was liable to be evicted from the residential houses and Bari under section 44 of the T.P. Act."
The learned Judge further held:
The last contention of Mr. Pal is that the plaintiff sued for injunction only. The learned trial judge, however, has decreed ejectment of the transferee defendants and that decree has been upheld. Once it is held that the plaintiff is entitled to protection under the second part of section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. In that sense and to the said extent, the decree of the trial court upheld by the lower appellate court must be taken to be sustainable. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession.
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."
When the stranger to the family acquired an interest in an immoveable property or dwelling house of an undivided family he has the right to seek partition. 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, when the transferee files a suit for partition.
These are two valuable rights of the members of the undivided family. Particularly when 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 the transferor's family had a right to live. Without there being any physical formal partition of an undivided immoveable property, a co-sharer cannot put his vendee in possession. It is settled law that the purchaser of a co-parcenor's undivided interest in the joint family property is not entitled to possession of what he had purchased. He can only claim a right to sue for partition of the property and seek allotment of that which on partition might be found to fall to the share of the co-parcenor whose share he had purchased.
It is therefore obvious that even if the sale deed whereby the undivided share has been alienated was legally permitted to be executed the transferee cannot force his way into the dwelling house of the co-owners until and unless he files for partition and obtains an order from the Court or makes a settlement with the co-owners who have not transferred their shares.
In the present matter, while passing the order impugned, the appellate court has clearly proceeded to observe that the defendant is restrained to demolish the walls which is mentioned as Aa, Ba in Naksha Nazari nor would interfere in possession of the appellant (defendant-respondent) nor would encroach upon any other suit property except his tenanted portion without proper partition.
The appellate Court has recorded findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the order of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 Hon'ble Supreme Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
In view thereof, the Court is of the considered opinion that there is no illegality or infirmity in the order impugned and finds no justification warranting interference with the order impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed.
The aforementioned observation is being made only for disposal of the present writ petition. The Court would be at liberty to proceed as per its own merit and would have no bearing in the Second Appeal, which is pending consideration.
Order Date :- 28.8.2018 A.K.Srivastava