RAHIM SHEIKH Vs. SAMAD SHEIKH

JUDGEMENT

(1.) THIS is a defendants appeal against the judgment and decree of the District Judge, Srinagar, by which he has modified the decree of the trial court in a suit for declaration.

(2.) THE plaintiff brought the present action for a declaration that the two sale deeds executed by Mohammad Sheikh defendant No. 2 in favour of Rahim Sheikh dated 23 -7 -1964 and 29 -8 -1964 be declared invalid. By means of sale deed dated 23 -7 -1964 the defendant No. 2 purported to sell 2 kanals 4 marlas of land out of the disputed land to the first defendant and by means of the second sale deed dated 29 -8 -1964 1 kanal 14 marlas of land was being sold from the joint holding by the defendant No. 2 to the defendant No. 1. The only ground on which the plaintiff based the present action was that the defendant No. 2 being a co -sharer and not in possession of any portion of the land was incompetent to sell the land to the first defendant. The trial court of Sub Judge (Judge Small Causes Court) Srinagar after going through the evidence of the parties, rejected the plaintiffs case and held that as the second defendant was in possession of a portion of the joint holding, he had a right to sell the same, by means of his judgment dated 31 -10 -1969. On appeal the learned District Judge, Srinagar, reversed the decree of the trial court and maintained the same only to the extent of 1 kanal 4 marlas by means of his judgment dated 25 -6 -1970. The District Judge appears to have been swayed by the consideration that since the second defendant was in possession of 1 kanal 4 marlas of land only, he could sell only this portion of the land and not more. Here the learned Judge has committed a clear error of law. In the case of Mst. Rahti Vs. Wali Ganai reported as AIR 1966 J&K 69 a Division Bench of this court has held that a co -sharer cannot transfer a specific portion of his share if he is not in actual possession of any portion of the joint holding. The Division Bench however pointed out that where a co -sharer is in exclusive possession of a piece of joint holding which does not exceed his share either by convenience or without any hindrance from other co -sharer he can transfer this interest. Thus the only obstacle placed in the way of a co -sharer transferring his land was that he must be in possession of any portion of the joint holding. It is not necessary that a co -sharer should be in possession of the entire share which he holds. It is sufficient if he is in possession of a small portion of the joint holding which will enable him to transfer his land to any body else and the final rights of the parties will be adjusted at the time of partition. The learned District Judge has clearly found that so far as 1 kanal 4 marlas of land under Survey No. 181/min is concerned, the defendant no. 2 was in possession either personally or through his tenant. The learned Judge however tried to draw a distinction between the exclusive possession by a co -sharer and constructive possession through a tenant. In the eye of law however for the purpose of ownership and possession there is no such distinction at all. An owner may be in possession of a piece of land either personally through personal cultivation or he may be in possession of the said land through his tenant. In the first case it is actual possession and in the latter case it is constructive possession, neverthless it is possession in the eye of law. Furthermore the learned Judge has wrongly held that the second defendant being in possession of 1 kanal 4 marlas of land not competent to sell the land exceeding this limit. It was not disputed before him nor before the trial court that the land sold by the second defendant exceeds his share. Thus a transfer by a co -sharer in order to be valid must satisfy two conditions: -

(3.) FOR the reasons given above, the appeal is allowed, the judgment and decree of the District Judge is set aside and that of the trial court is hereby restored. There will be no order as to costs.