MITHILESH SHARMA Vs. DULARI KUER

JUDGEMENT

(1.) THIS appeal is directed against the order dated 6 -2 -1996 passed by Sri J.N. Sardar, Sub -Ordinate Judge -I, Jehanabad in Title Suit No. 29 of 1995. The defendant 2nd set of the suit is appellant here.

(2.) THE case of the plaintiff -respondents in the lower Court was that there was one Dhanushdhari Singh who had certain properties and this Dhanushdhari Singh had a son Chhotu Singh who came in possession of his fathers property, after his death. Chhotu Singh was married to one Engurbaso Devi who had two daughters, namely, Ajab Dulari (Defendant No. 1) and Shiv Dulari Kuer (Plaintiff No. 1). It was further pleaded by the plaintiff -respondents that Chhotu Singh was a religious minded person and he had no male issue and, therefore, he had devided his property in three sets. One part of the share was retained by himself and one part was dedicated to the idols installed by himself. The 3rd part of the property was gifted to his wife (Engurbaso Devi) by registered sale -deed of gift dated 11th November, 1968 which measured an area of 2.54 acres. The suit property formed part of this gifted land in favour of Chhotus wife which was described in Schedule -II of the plaint. However, the entire gifted property of Engurbaso Devi was described in Schedule -III of the plaint. It was further the cse of the plaintiff -respondents that in spite of a deed of gift dated 11th November, 1968, this gift was not acted upon nor the donee came in possession of the same; rather it remained in possession of Chhotu Singh, the donor. Chhotu Singh used to pay rent of the aforesaid land and he also remained in possession. Chhotu Singh, therefore, executed a sale -deed dated 10th October, 1990 for the part of the property described in Schedule -III of the plaint and this vended property is described in Schedule -IV of the plaint. Lakshminidhi Sharma and Bhagwan Sharma came in possession of the vended land. Subsequently, Chhotu Singh exchanged certain lands out of the so called gifted oirperty (this exchanged land is described in Schedule -I of the plaint) and the land taken by Chhotu Singh by virtue of this exchange was described in Schedule -IV of the plaint. Thereafter, Chhotu Singh donated Schedule -VI land to a middle School. Thereafter, Chhotu Singh executed a registered deed of gift dated 24th June 1992 in favour of plaintiff Saroj Devi (Plaintiff No. 2) and this land is described in Schedule -VI I of the plaint. On the basis of the aforesaid alienations and donations made by Chhotu Singh, he was left with no interest in the suit land. However, Chhotu Singh was joined as proforma defendant in the suit. After the death of Engurbaso Kuer, her daughter Ajab Dulari Kuer (Defendant No. 1) set up a claim of half share in the property transferred in the name of Engurbaso Kuer which was gifted to her by Chhotu Singh. However, after the death of Engurbaso Kuer, Plaintiff No. 1 and Defendant No. 1 and Chhotu Singh are the three heirs of her property and, therefore, the question of half share claimed by her does not arise, but Defendant No. 1 executed sale -deeds dated 17th April, 1995 and 19th April 1995 in favour of Mithilesh Sharma (Defendant No. 2). The aforesaid sale -deeds covered half of the area of each of the plots gifted to the Plaintiff No. 2 by Chhotu Singh, as stated above. The Defendant No. 2 threanted to dispossess the Plaintiff No. 2 on the basis of the aforesaid sale -deeds in his favour. So the plaintiff -respondents filed the suit for restraining the Defendant No. 2 from interfering with her peaceful possession. The defendants case was that Engurabaso Kuer came in possession on the basis of deed of gift in her favour by Chhotu Singh and she was mutated and the rant was being paid by her and after her death, both her daughters came in possession of the property of their mother, since Chhotu Singh had gifted the property, he was left with no interest. So, these sale -deeds executed by Defendant No. 1 were valid and legal and this defendant came in possession of the vended land. The learned Sub -ordinate Judge, however, felt difficulty in deciding the claim and counter claims of the parties and he felt that since Defendant No. 2 was stranger to the family of the Plaintiff No. 1 and Defendant No. 2 and since Chhotu Singh was alive when the suit was filed (although he died during the pendency of the suit) Defendant No. 1 will have 1/3rd share and not half. Moreover, since the land gifted to Engurbaso Kuer was inherited by her two daughters, as also her husband and there being no partition the vendee will have to first seek partition from the co -owner and only in that case, he will be entitled to take possession of the vended land. So, in the mean time, he was not entitled to disturb the possession of the plaintiff. It was under this circumstance that the learned Sub -Judge granted prayer of injunction in favour of plaintiff.

(3.) OF corse, when heirs of a deceased, male or female, inherit any property, 3rd person stranger to the family will have no right to obtain any sale -deed, especially of specified place of land, unless the vendor claims partition. In such a circumstances, the vendee will have first to seek partition from the co -owners and only then he can enforce his right to possession over the vended land. So, if injunction was granted I, do not think this Court can legitimately interfere with the impugned order.