CHANDER BHAN Vs. JAI LAL HARPHUL AND ORS.

JUDGEMENT

(1.) THIS regular second appeal filed by Chander Bhan Defendant is directed against the judgment and decree of learned Senior Subordinate Judge, Rohtak, whereby he reversed the decision of the trial Court and awarded a decree for declaration in favour of Jai Lai, Plaintiff -Respondent, that he was the exclusive owner of khasra No. 1582 and the same was not liable to be partitioned on the application of Chander Bhan.

(2.) THE brief facts of this case are that Chander Bhan, Chaman Lal and Hira Lal, Defendants 1 to 3, jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal had one third share in that land and as a co -sharer was in exclusive possession of land bearing khasra No. 1582 sidelong. Chaman Lal sold the land being khasra No. 1582 to Jai Lal Plaintiff by means of an oral Bale on November 24, 1940 and a mutation, copy of which is Exhibit P. 1; was sanctioned on the basis of this sale in favour of the Plaintiff on December 26, 1940. The Plaintiff, accordingly entered into possession of the land bearing khasra No. 1582. A suit to preempt the above sale was filed by Chander Bhan Defendant but the same was dismissed on January 7, 1943. Chander Bhan Defendant subsequently applied for partition of the land comprising khasra Nos. 1.532, 1585, 1258 and 1362. Jai Lal Plaintiff thereupon filed the present suit for declaration on the allegation that he was in adverse possession of land bearing khasra No. 1582 as an owner for over twelve years and that the aforesaid land was not liable to be partitioned.

(3.) I have heard Mr. G.C. Mital on behalf of the Appellant and Mr. R.S. Mittal on behalf of the Plaintiff -Respondent, and am of the view that the decision of the lower appellate Court cannot be sustained. From the resume of facts given above it would appear that Defendants 1 to 3 jointly owned land measuring 12 bighas and 3 biswas comprising khasra Nos. 1582, 1585, 1258 and 1362. Chaman Lal Defendant No. 2, who was in exclusive possession of land bearing khasra No. 1582 as a co -sharer sold it to the Plaintiff. This sale could only be subject to adjustment at the time of partition of the entire joint land. As Chaman Lal was a co -sharer in the land, the position of the Plaintiff, who was a transferee from Chaman Lal, could not be better than that of a co -share. As such the Plaintiff could not claim adverse possession over the land transferred to him in the absence of any overt act of which there is no proof on the record. It is significant that when Chaman Lal transferred the land comprising khasra No. 1582 he did so as a co -sharer and the mutation, which was entered in favour of the Plaintiff, was only in the column of cultivation and not in the column of ownership. In the circumstances, he could not become the sole owner of the land in dispute by adverse possession. I am fortified in the above conclusion by a long chain of authorities. In Mam Raj v. Chhotu, AIR 1933 Lah 763 (1), it was held by a Division Bench (Shadi Lal, C.J. and Abdul Qadir, J.) that there can be no advise possession by one co -owner against another co -owner, and that the same principle applies to the case of a transferee from a co -owner. Mam Raj's case, AIR 1933 Lah 763 (i) was followed in Kanhaya v. Trikha, AIR 1935 Lah 651, and it was held that a transferee from a co -sharer occupied in the eye of the law the same position as his transferor and by the mere fact of obtainining a transfer in his favour and appropriating to his own use some of (lie joint land, he does not acquire title by adverse possession as against his co -owners. The dictum Lald down in Abdul Gafur v. Ashamath Bibi, 54 Ind Cas 385 :, AIR 1920 Mad 160, and Anwari v. Kishan Singh 71 Ind Cas 171 : AIR 1922 Lah 205, which were relied apian by the learned Senior Subordinate Judge in the present case, was expressly dissented from. Sukh Dev v. Parsi, AIR 1940 Lah 473, has a great bearing on the present case. In that case a Division Bench (Tek Chand and Bide, J.J.) of the Lahore High Court observed that it was a well settled principle of law that if a, co -sharer was in established possession of any portion of an undivided holding, not exceeding his own share, he could not be disturbed in his possession until partition. It was, accordingly, held that a co -sharer, who was in possession of any portion of his joint khata, could transfer that portion subject to adjustment of the rights of the other co -sharers at the time of the partition. In Subah Lal v. Fateh Mohamad : AIR 1932 All 393, Sulaiman and Niamatullah, J J., held that the principle of law relating to co -ownership would apply with equal force to a transferee from a co -owner. Similar views were expressed in Halim Shah v. Rahim Bux, AIR 1930 Oudh 475 and Biswanath Chakravarti v. Rabija Khatun : AIR 1929 Cal 250.