The main legal point established in the judgment is that the sale of a specified portion of joint land by a co-owner is a valid sale of a portion of the share, and the rights of the transferee are regulated by Section 44 of the Transfer of Property Act.

JUDGMENT :

RAJIV SHARMA, J.

1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, H.P., dated 6.4.2005, passed in Civil Appeal No. 113- S/13 of 2002.

2. “Key facts” necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for declaration and for permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants). The case set up by the plaintiffs is that the suit land was recorded in the ownership and possession of the plaintiffs and defendants No. 2 to 8 to the extent of their share ¾ alongwith their mother Smt. Devki and sisters Godawari, Kalawati and Tarawati. Defendants No. 2 & 3 and father of defendants No. 4 to 8 have sold the entire land to defendant No. 1 through sale deed dated 20.3.1975 and mutation No. 141 was attested in the office of Assistant Collector, Grade II, Shimla. The defendants have no right to sell the share of the plaintiffs in the suit land and as such the alleged sale deed is null and void.

3. The suit was contested by defendant No. 1, namely, Parma Nand. According to him, Charan Dass, Amar Singh, Medh Ram and Devki were joint owners of land bearing khewat No. 23, khatauni No. 82 and 83 (kita-13) measuring 69 bighas and 10 biswas. Out of this land, Charan Dass, Amar Singh, Medh Ram and Devki Devi were in exclusive possession of Kh. No. 384, measuring 6 bighas and 18 biswas i.e. the suit land which they sold to defendant No. 1 through sale deed dated 20.3.1975 for consideration of Rs. 2000/- and defendant No. 1 was put in physical possession on the spot and thereafter mutation was also attested on 24.9.1977.

4. The learned trial Court framed the issues on 16.1.2002. The suit was partly decreed to the effect that the plaintiffs were co-owners in the suit land comprising khata khatauni No. 24/83, Kh. No. 384, total measuring 6 bighas 18 biswas, situated at Mauja Mohri, Pargana Kalhanj, Tehsil and Distt. Shimla, H.P., as per their shares and the sale deed Ext PW-1/E, registered in the office of Sub Registrar dated 20.3.1975 was null and void to the extent of the share of the plaintiffs in the suit land and the mutation No. 141 dated 24.9.1977 on the basis of sale deed was also wrong, null and void. Defendant No. 1, Parma Nand, preferred and appeal, feeling aggrieved, against the judgment and decree dated 2.12.2002. The learned District Judge, Shimla, partly allowed the same on 6.4.2005. Hence, this regular second appeal.

5. The regular second appeal was admitted on the following substantial question of law on 14.7.2005:

“1. Whether the lower appellate court ignored the provision of co-owner Rights in joint land and misread and misconstrued the documentary evidence, whereby it was held that sale deed executed by vendors from the joint land is legal and valid, whereas, they are not in exclusive ownership and possession of joint land?”

6. Mr. B.N. Sharma, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the sale executed by the defendants No. 2 & 3 and father of defendants No. 4 to 8 in favour of defendant No. 1 was null and void and the mutation thus could not also be attested in their favour from the joint land. On the other hand, Mr. Ajay Kumar, Sr. Advocate, appearing on behalf of defendant No.1 has supported the judgment and decree passed by the learned District Judge, Shimla dated 6.4.2005.

7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully.

8. PW-1 Krishan Chand deposed that the disputed land measures 6 bighas 18 biswas. Kh. No. 384 was in joint ownership. He has proved copy of jamabandi Ext. PW- 1/A, Ext. PW-1/B, PW-1/C and PW-1/D. The partition has not taken place. The defendants No. 2 & 3 have sold the land to defendant No. 1 without his consent. He d