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2011 Supreme(P&H) 437
PUNJAB & HARYANA HIGH COURT
Ram Chand Gupta, J.
Daya Chand
Versus
Shamlat Patties Med Singh, Inder Singh Of Village Jawan, Tehsil Ballabhgarh
Regular Second Appeal No. 2980 of 1984,
Decided On : FEBRUARY 4, 2011
A suit for joint possession of land can be maintained on the basis of title, even without seeking a declaration to set aside a decree and sale deed that are null and void. A sale deed executed by some co-owners without the consent of all the co-owners is not valid and cannot bind all the co-owners.
Headnote:
Code of Civil Procedure - Order I Rule 8 - The court found that the previous suit filed by the defendants in representative capacity did not comply with the essential conditions of Order I Rule 8. The court held that the summons were not issued to all the co-sharers as required, and no permission was obtained from the court to file the suit in a representative capacity. Therefore, the decree passed in the previous suit was held to be null and void and not binding on all the co-sharers.
Fact of the Case:
Respondent No. 1 filed a civil suit on behalf of co-owners of land against the appellant and other defendants for possession of the land. The suit was filed in representative capacity under Order I Rule 8 of the Code of Civil Procedure. The appellant claimed ownership of the land based on a decree and sale deed. The court found that the decree and sale deed were illegal and void, and decreed the suit for joint possession of the land except for the shares of certain defendants who were parties to the previous suit. The appellant appealed the decision, arguing that the suit should have sought to set aside the decree and sale deed, and that the suit could not be decreed for the shares of the defendants who executed the sale deed. The appellate court dismissed the appeal with the modification that the suit was decreed except for the shares of certain defendants. The appellant filed a second appeal. The court framed substantial questions of law regarding the maintainability of the suit without seeking to set aside the decree and sale deed, and the decree of the suit for the shares of the defendants who executed the sale deed. The court held that the suit was maintainable as the decree and sale deed were null and void, and that the suit could not be decreed for the shares of the defendants who executed the sale deed.
Finding of the Court:
The court found that the previous suit filed by the defendants in representative capacity did not comply with the essential conditions of Order I Rule 8 of the Code of Civil Procedure. The court held that the summons were not issued to all the co-sharers as required, and no permission was obtained from the court to file the suit in a representative capacity. Therefore, the decree passed in the previous suit was held to be null and void and not binding on all the co-sharers. The court also found that the sale deed executed by the defendants in favor of the appellant was not valid as it was not executed by all the co-owners. The court held that the suit for joint possession was maintainable on the basis of title, as the sale deed itself was void. However, the court held that the suit could not be decreed for the shares of the defendants who executed the sale deed.
Ratio Decidendi: The court held that a suit for joint possession of land can be maintained on the basis of title, even without seeking a declaration to set aside a decree and sale deed that are null and void. The court also held that a sale deed executed by some co-owners without the consent of all the co-owners is not valid and cannot bind all the co-owners. Therefore, the suit could not be decreed for the shares of the defendants who executed the sale deed.
Result: The court dismissed the appeal and upheld the decree of the lower courts, with the modification that the suit was decreed for joint possession of the land except for the shares of certain defendants who executed the sale deed.
Ram Chand Gupta, J.
1. Facts leading to the present Regular Second Appeal are as under:
2. Respondent No. 1-through respondent Nos.2 to 6 filed a civil suit in representative capacity under Order I Rule 8 of the Code of Civil Procedure (hereinafter to be referred as the Code) on behalf of co-owners of shamlat patties Med Singh and Inder Singh of village Jawan against present appellant-defendant No.1 and respondent Nos.8 to 22 for possession of land in dispute measuring 24 kanals 12 marlas, described in para 1 of the plaint.
3. It has been averred that shamlat patties Med Singh and Inder Singh are owners of the land in dispute and there are numerous owners in the said patties, who are having same interest. Hence, the present suit has been filed in representative capacity under Order 1 Rule 8 of the Code.
4. Defendant Nos.2 and 3, namely, Thakur Lal and Piara Lal had sold the suit land owned by said patties to present appellant-defendant No.l Daya Chand, vide registered sale deed dated 5.9.1972, registered on 11.9.1972 for alleged sale consideration of Rs.10,000/- on the basis of a decree dated 30.8.1972 obtained by them in Civil Suit No.542/1972 titled as Thakur Lal and others V. Lal Singh and others. Defendant Nos.2 and 3 had no right to alienate the land in dispute on behalf of the patties and hence the said sale is illegal, void and ineffective and not binding on the rights of plaintiffs-patties. Decree dated 30.8.1972 is also void, illegal and ineffective.
5. The said decree and the sale deed have been challenged on the ground that no service was effected on all the owners/co-sharers of the aforesaid parties, as required by law and that no public advertisement of the said previous suit was made through publication and that the said previous suit was collusive between Thakur Lal etc. and Lal Singh etc.; that sale consideration allegedly received by defendant Nos.2 and 3 was not paid to the co-sharers of the patties; that no power of attorney can be given to individual person through a suit and hence, defendant Nos.2 and 3 were not competent to sell the suit land on behalf of all the co-sharers of the patties; and that defendant Nos,2 and 3 were not competent to alienate more than their share in the suit land.
6. It is further averred that plaintiffs came to know of the impugned sale and decree in June 1976 for the first time. On refusal of defendants to admit claim of plaintiffs-patties and to deliver possession of the suit land to them and to treat impugned sale and decree null and void, the present suit for possession was filed on behalf of all the co-sharers of the plaintiffs-patties.
7. Defendants contested the suit filed by the plaintiffs, inter alia, on the ground that the impugned judgment and the sale-deed are perfectly legal and valid and hence, plaintiffs-patties are not owners of the suit land and that defendant No.1 (present appellant) has become owner in possession of the same by virtue of the said decree and the sale-deed; that the plaintiffs have no locus standi to file the present suit; that the suit has not been filed as representative of all the co-sharers of the patties; that the proper service was effected on all the co-sharers in the previous suit under Order 1 Rule 8 of the Code and they were duly represented by Lal Singh, Girdhar and Gyasi in that suit; that it is not necessary to publish the advertisement in the newspapers; that there was no collusion between the parties of the previous suit; that defendant Nos.2 and 3 distributed the sale consideration of Rs.10,000/- amongst all the co-sharers of the patties; that defendant Nos.2 and 3 were duly authorized to execute the impugned sale deed; that plaintiffs had knowledge and notice of the impugned sale and decree since the very beginning and hence, the suit is not within limitation; the suit is not maintainable in the present form; that the suit is barred by principle of res judicata and the suit has not been properly valued for the purpose of
