Back
1974 Supreme(AP) 195
Andhra Pradesh High Court
Judges : VISWANATHA SASTRY
Nelli Narasimha Reddy - Appellant
Versus
Vadla Krishnaiah - Respondent
Decided On : 12-24-74
A purchaser of an undivided interest of a coparcener in a specific property can maintain his possession so long as there is no attempt made by the non-alienating coparceners to recover possession of the property from him in due course of law.
Headnote:
INJUNCTION - POSSESSION - COPARCENER - ALIENATION - UNDIVIDED INTEREST - RIGHT OF PURCHASER - PROTECTION OF POSSESSION - TRANSFER OF PROPERTY ACT, 1882, SECTION 53-A - HINDU LAW.
Fact of the Case:
Plaintiff purchased a specific item of property from the manager of a joint Hindu family. The other coparceners did not question the alienation from 1960 to 1970. The alienor supported the alienation. The alienee was in possession from 1960 to 1970. The case set up by the defendants that the plaintiff was a lessee of the suit land was negatived. The trial court found that the plaintiff was in possession on the date of the suit, but dismissed the suit because the alienation was not binding on the defendants. The appellate court confirmed the findings of the trial court and held that the plaintiff was not entitled to an injunction restraining the defendants from interfering with his possession.
Finding of the Court:
The plaintiff, as an alienee from one of the coparceners in respect of a specific item of property, can maintain his possession so long as there is no attempt made by the non-alienating coparceners to recover possession of the property from him in due course of law. The plaintiff is entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882, and is entitled to protect his possession till a general suit for partition is filed.
Issues: 1. Whether the plaintiff, as an alienee from one of the coparceners in respect of a specific item of property, can maintain his possession so long as there is no attempt made by the non-alienating coparceners to recover possession of the property from him in due course of law? 2. Whether the plaintiff is entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882, and is entitled to protect his possession till a general suit for partition is filed?
Ratio Decidendi: 1. The purchaser of an undivided interest of a coparcener in a specific property at a private sale or sale in execution does not acquire a right to joint possession with the other coparceners. He acquires merely the right to compel a partition which the coparcener whose interest he has purchased might have compelled, and had he been so minded, before the sale of his interest took place. 2. If the purchaser has obtained possession, the non-alienating coparceners are entitled to sue for and recover possession of the whole of the property for the benefit of the joint family including the vendor. The purchaser is not entitled in such suit to an order for partition either of the specific property sold to him or of the joint family properties in general. He must, if he wants to realise his vendors interest, bring a suit of own for a general partition. 3. Where a suit therefore is brought by the non-alienating coparceners for possession, the proper decree to be passed would be an order directing the purchaser to deliver possession to the plaintiffs of the whole property, and declaring that the purchaser is entitled to a declaration that he has acquired the undivided interest of his vendor in the property and that he is entitled to take proceedings to have that interest ascertained by partition. But to protect the purchaser a further direction is added that the execution of the decree, so far as it directs the purchaser to deliver possession to the plaintiffs, be stayed for a specific period, and if before the expiry of that period the purchaser brings a suit for general partition against the plaintiffs then the stay should continue until the disposal of that suit, but if no such suit is brought within that period, then the stay of execution will stand cancelled.
Final Decision: The second appeal is allowed. The suit of the plaintiff is decreed with costs throughout.
( 1 ) PLAINTIFF is the appellant in this Second Appeal. He filed the suit for a perpetual injunction restraining the defendants from interfering with his possession of the suit land bearing R. S. No. 110 situate in Karpamula Village measuring 37 guntas. It was dismissed in the first court though many of the findings are in his favour and the decree has been confirmed in appeal. Hence the second appeal. A few facts are necessary to understand the point arising in this appeal
( 2 ) THE plaintiff purchased the suit land from Vadla Balanarayana, P. W. 4, who is the brother of the defendants 1 and 2 for Rs. 500 under an agreement of sale dated 6-12-1960 marked as Ex. A-1. P. W. 4 sold the property as manager of the joint family consisting of himself and his two brothers, according to the plaintiff, for a legal necessity. The plaintiff was put in possession of the suit land on the same date and he was in actual possession paying land revenue to the Government. On 9/08/1970, when he went to the suit land to plough the same for purposes of cultivation, all the defendants came there in a body without any authority and, taking the law into their own hands, unyoked the ploughs of the plaintiffs and did not allow him to plough the land. Hence the plaintiff filed the suit for an injunction restraining the defendants from interfering with his possession.
( 3 ) DEFENDANTS 3 to 6 remained ex parte. Defendants 1 and 2 pleaded that the plaintiff has not purchased the land from their brother Balanarayana, that Balanarayana had no authority to sell the Land, that he was not the manager of the joint family, that the suit land is an ancestral balotha inam and the mother of the defendants 1 and 2 alone is the manager, that assuming that he was manager, there was no legal necessity, that the plaintiff colluded with the vendor and concocted the suit agreement, that as a matter of fact the plaintiff used to cultivate the suit land on lease on bathi basis, that as the plaintiff failed to cultivate the land, defendants 1 and 2 have sowed the seedlings in the suit land in Arudra Karthi, that the plaintiff was not in possession of the suit land in this year, that he did not go to the suit land on 9/08/1970, that the defendants never unyoked his ploughs, that the plaintiff along with three others filed a petition in the Tahsil Office on 30-6-1970 that these defendants are interfering with his cultivation wherein he stated that he took the suit land on permanent lease some ten years back, that he has also filed another petition for the issue of a patta for the suit land on 10-2-1970 wherein he stated that he purchased the suit land on 6-12-1960, that it is not true that all inams are abolished and vested in the Government, that the Abolition of Inams Act of 1955 was repealed by 1967 Act and the same was struck down by the High Court on 31-3-1970, that the inam lands being Government lands cannot be alienated by the holder, that the relationship of the plaintiff and the defendants is that of landholder and tenant and therefore, the dispute has to be decided by the Revenue Court and the Civil Court has no jurisdiction to entertain the suit, that on the date of the filing of the suit, the plaintiff was not in possession of the suit land and so the suit for retention of possession does not lie, that the defendants are the owners of the land and so permanent injunction cannot be granted against the defendants, that the suit document is a sale deed and not an agreement and is inadmissible in evidence for want of proper stamp and registration and, therefore, the defendants prayed for the dismissal of the suit.
( 4 ) ON the above pleadings, the trial court framed the following issues : 1. Whether the plaintiff purchased the suit land from Vadla Bala Narayana for Rs. 500 under an agreement of sale on 6-12-1960 as manager of the family for legal necessity? (2) Whether the suit land is a Balwatha Inam and whether Bala Narayana in the capacity of Ma
