The central legal point established is that the registration of a sale deed and permission to raise construction on undivided property should be granted only after the shares of coparceners are defined through partition.

JUDGMENT :

1. The present special appeal has been filed against the order dated 12.10.2022 passed by the learned Single Judge only to the extent an application preferred by respondent No.11-Shiv Prakash Soni with a prayer for direction to get the sale deed registered in his favour and for permission to raise construction has been allowed. Before proceeding further the brief facts of the case are summarised as under :

2. One Deva Ram preferred a suit for partition with a specific averment that he, Loon Singh, Pratap Ram and Triloka Ram have 1/4th share each in the disputed property and are in joint possession of the said land. He, in the suit prayed for partition of the said land by metes and bounds. In the said suit, an application under Section 212 of the Rajasthan Tenancy Act, 1955 was preferred by him for interim injunction in which at the first instance, an interim order was granted on 27.05.2004 and ultimately the same was finally decided on 10.02.2006 whereby the parties were directed to maintain status quo regarding the disputed property.

3. One suit for specific performance of the contract was filed by one Shiv Prakash Soni (respondent No.11 in the present appeal) with an averment that Triloka Ram, one of the coparcener had entered into an 'agreement to sell' in his favour for 9 bighas of land out of his share. When the sale deed was not got registered by Triloka Ram, he preferred a suit for specific performance of the contract. During pendency of the said suit, Triloka Ram expired and the legal representatives of Triloka Ram ultimately entered into a compromise with the applicant-Shiv Prakash Soni. Vide the compromise, the legal representatives of Triloka Ram consented to get the sale deed for 5 bighas and 10 biswa of land registered in favour of the applicant. In terms of the compromise entered into between the parties, the suit for specific performance of the contract was decreed vide judgment and decree dated 16.04.2015.

4. When, in spite of the suit being decreed in his favour, the sale deed was not registered by the legal representatives of Triloka Ram, an application before the writ Court in the present proceedings was preferred by Shiv Prakash Soni with a submission that because of the interim order operating in the present writ petition, the sale deed is denied to be got registered in his favour and therefore, appropriate orders be passed for registration of the sale deed in his favour and for permission to raise construction on the said land.

5. When the matter was listed for orders on the said application, with the consent of the parties, learned Single Judge proceeded on to dispose of the writ petition itself with a direction to the Assistant Collector-cum-Sub-Divisional Officer, Jodhpur to decide the suit within a period of one year. However, while disposing of the writ petition, the learned Single Judge also proceeded on to allow the application preferred by respondent No.11 (Shiv Prakash Soni) and directed for sale deed to be got registered in his name and also permitted him to raise the construction subject to outcome of the ultimate decision of the pending suit for partition. Against the said part of the order, the present special appeal has been preferred.

6. Learned senior counsel appearing for the LRs of appellant Deva Ram submitted that the said order in favour of respondent No.11 could not have been passed by the learned Single Judge. Learned counsel submitted that unless and until the suit for partition is decided by the competent court, the specific shares of the coparceners are not defined and therefore, any sale deed in favour of respondent No.11 could not be registered. Further, when the share of the coparcener himself is not defined, the construction on an unidentified share of land could not have been permitted. Learned counsel relied upon a judgment of the Hon'ble Apex Court in the case of M.V.S. Manikayala Rao vs. M. Narasimhaswami and Ors.; AIR 1966 SCC 470 and submitted that the only right av