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Kala and ors. Vs. Suraj Bhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Nos. 157 and 165 of 1974
Judge
Reported inAIR1985P& H159
AppellantKala and ors.
RespondentSuraj Bhan and ors.
Cases ReferredSant Ram Nagina Ram v. Daya Ram Nagina Ram
Excerpt:
.....if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - parsi, air 1940 lahore 473, which had been relied upon by the learned single judge in arjan singh's case was clearly distinguishable and was not attracted to the facts of that case, or to the facts of the present case. daya ram nagina ram, air 1961 punjab 528 in a well considered judgment, after referring to score of authorities of lahore high court and this court, as also of other courts, had distilled nine propositions with regard to rights and liabilities of co-owners which find mentioned in para 78 of the..........effected without obtaining the permission of the court. the minors had also claimed the relief of joint possession.3. the trial court decreed the suit and the appellate court sustained the judgment and decree of the trial court and dismissed the appeal. hence, the two set of vendees, though the sale was one, had approached this court through the aforementioned two separate appeals.4. when the case came up for hearing before my brother goyal j. one of the points canvassed before him was that the suit for joint possession was not competent as the minor-respondents could claim in law only a declaration to the effect that they were the co-sharers along with the vendees, appellants herein. in support of that submission, reliance was placed on a single bench decision of this court reported in.....
Judgment:

D.S. Tewatia, J.

1. These two appeals, namely, R. S. As Nos. 157 and 165 of 1974, in the first instance, came up for hearing before my brother Goyal, J. who by his order dated 5-5-1983, referred the same for decision to a larger Bench and that is how these appeals are before us.

2. Before dealing with the proposition of law that arises for consideration in this case, the facts having bearing upon that proposition can be stated thus. Mother of respondents 3 to 7 sold their share along with her own to the appellant-vendees at a time when the aforesaid respondents were minors. The minors impugned the sale, inter alia, on the ground that the sale had been effected without obtaining the permission of the Court. the minors had also claimed the relief of joint possession.

3. The trial Court decreed the suit and the appellate Court sustained the judgment and decree of the trial Court and dismissed the appeal. Hence, the two set of vendees, though the sale was one, had approached this Court through the aforementioned two separate appeals.

4. When the case came up for hearing before my brother Goyal J. one of the points canvassed before him was that the suit for joint possession was not competent as the minor-respondents could claim in law only a declaration to the effect that they were the co-sharers along with the vendees, appellants herein. In support of that submission, reliance was placed on a single Bench decision of this Court reported in Arjan Singh v. Hem Raj, 1983 Pun LJ 56. Since the correctness of the view taken in the case of Arjan Singh (supra) was doubted, so it was referred to a larger Bench.

5. It has been canvassed on behalf of the respondents that Arjan Singh's case does not lay down the correct law. It has also been further canvassed that the ratio of Sukh Dev v. Parsi, AIR 1940 Lahore 473, which had been relied upon by the learned single Judge in Arjan Singh's case was clearly distinguishable and was not attracted to the facts of that case, or to the facts of the present case.

6. A perusal of the judgment in Arjan Singh's case would show that the learned single Judge had merely followed the Lahore High Court case in Sukh Dev (supra) and there is no discussion of the matter, as is evident from the following paragraph:

'It was then urged by the learned counsel that a decree for joint possession cannot be granted in view of Sukh Dev v. Parsi, AIR 1940 Lahore 473, and only a declaration could be granted that the possession of the vendees would be as co-sharers in which the plaintiffs will have 2/3rd share subject to the right of partition. I find merit in this contention. Therefore, the decree will have to be modified to this extent'.

In Sukh Dev's case the facts were that a co-sharer in an established exclusive possession certain portion of joint land, which did not exceed his share in the joint land, sold the same subject to the rights of the other co-sharers in the event of a partition. The co-sharers of the said vendors sought joint possession of the land so alienated by the vendor-co-sharers. It was held that a co-sharer in an established exclusive possession of a portion of the joint land was entitled to effect sale thereof and the person, who had brought such a piece of land, was entitled to remain in exclusive possession thereof till a partition was effected and as a result of such a partition that portion happened to fall into the hands of the other co-sharer. It was further held that the co-sharer of the vendor-co-sharer could not claim joint possession with the vendees of the latter. His remedy was by way of partition and not by way of a suit for joint possession.

7. A Division Bench of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528 in a well considered judgment, after referring to score of authorities of Lahore High Court and this Court, as also of other Courts, had distilled nine propositions with regard to rights and liabilities of co-owners which find mentioned in para 78 of the judgment. Proposition No. (8) is to the following effect:

'(8) The remedy of a co-owner not in possession or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title to himself'.

We entirely concur in the view propounded in the aforesaid proposition.

8. In view of the above, we hold that Arjan Singh's case (1983 Pun LJ 56) (supra) does not lay down the correct law and the same is hereby overruled.

9. No other point has been urged.

10. For the reasons aforementioned, we hold that the suit as framed by the plaintiff-respondent, as also the decree awarded, is legal and in accordance with law. We, therefore, dismiss these second appeals (R. S. As. Nos. 157 and 165 of 1974), but with no order as to costs.

11. Appeals dismissed.


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