A co-owner who is not in actual physical or exclusive occupation of a parcel of land cannot transfer a valid title to that portion of the property.

Deviader Gupta, J.—The question of law, which can be said to have arisen for determination in this Second Appeal is that whether a co-owner can transfer a valid title in a specific portion of land over which he is not in exclusive occupation.

2. The plaintiff is the appellant, who has challenged the judgment and decree passed on 30th September, 1985, by District Judge, Solan and Sirmaur districts at Nahan, allowing the appeal of the defendants-respondents and dismissing the plaintiffs suit for possession and thereby setting aside the judgment and decree passed on 28th February, 1984 by Sub-Judge, Nahan, decreeing the plaintiffs suit for possession.

3. On 5th June, 1981, a suit for possession of 65 square metres of land comprised in Khasra No. 120 and 137/9/7/2/2/1 as entered at Khewat No. 56 min, Khatauni No. 78 in Misal Haqiat Bandobast of Nahan town was filed by the plaintiff, on the basis of title alleging that a valid title to this part of the property had been acquired by him through its previous owner, Kanwar. Narbir Singh, by means of a registered deed of sale dated 12th May, 1981. A small hut was also constructed thereupon after spending Rs. 500 but for the last 1-1/2 year, the defendants in his absence and in the absence of the previous owners, without their consent and permission, had made forcible entry in the land, including the hut standing thereupon and had dispossessed the plaintiff, for which they had no right, title and interest. It was alleged that despite requests the defendants failed to deliver back the possession and as such the plaintiff, on the basis of title, was entitled to a decree for possession.

4. The suit was contested by the defendants, who alleged that they got the possession of the suit land from late Shri Ramesh Kumar, the brother of Kanwar Narbir Singh, a co-owner in the suit land about 15 years ago through an oral agreement of sale and ever since the defendants have been in occupation of the property continuously, openly and in assertion of their rights as owners. In fact, they had constructed a kacha residential house over the suit land. After the death of Ramesh Kumar, his widow Smt Sidheshwari Devi for herself and as general attorney of her daughter Smt Neerja Kumari and with the consent of her son Vikram Singh, executed an agreement to sell, in pursuance to the earlier oral agreement of sale and received a part payment of Rs. 400 as consideration from the defendants. The consideration of sale was duly paid to the heirs of Ramesh Kumar. Only formal act of getting registered a document of transfer was to be done and completed on 12th May, 1981 but the Sub- Registrar declined to register the same and returned the same, which had been duly presented before him by Vikram Singh.

5. The trial Court held the plaintiff to have acquired a valid title to the property and found the defendants to be in unlawful occupation of the property having acquired no title therein. A decree for possession was passed. In appeal, the lower appellate court reversed the finding of facts recorded by the trial court. It was found that possession of defendants had originated from a valid agreement by one of the co-owners. The defendants were found to be in actual occupation of the property prior to the execution of deed of sale in favour of the plaintiff by Kanwar Narbir Singh, the other co-owner. The defendants were held not to be in unauthorised occupation of the property. The construction raised by them about 6 years prior to the date of sale, which finding of fact Was recorded after noticing the statement of Kanwar Narbir Singh, who admitted this fact. Consequently, the appeal was allowed and the plaintiffs suit was dismissed. It is this judgment and decree, which is under challenge

6. I have heard the learned Counsel for the parties and also gone through the record.

7. It is not in dispute that the suit land, alongwith other property, was jointly owned by two brothers, namely, Kanwar Narbir Singh and Ramesh Ku