IMPORTANT POINT
Purchaser of a coparcener’s undivided interest in joint family property has right to sue for partition of property and ask for allotment of his share in suit property.

JUDGMENT (CAV)

J.B. Pardiwala, J.—This First Appeal under Section 96 of the Code of Civil Procedure, 1908 [for short ‘The C.P.C.’] is at the instance of the original defendants nos.5 and 6 and is directed against the judgment and decree dated 26/02/2015 passed by the Additional Senior Civil Judge, Bardoli in the Special Civil Suit No.1 of 2011.

2. The facts giving rise to this First Appeal may be summarized as under:

2.1 The respondent no.1 – original plaintiff instituted the Special Civil Suit No.1 of 2011 in the Court of the Additional Senior Civil Judge, Bardoli and prayed for the following reliefs:

1. As the registered sale deed No.2560 executed on 15/11/2010 by the respondents nos.1 to 4 in favour of respondents nos.5 – 6 is without my consent though I am a member of the joint family and as the sale deed does not bear my signature, it is void ab initio. Therefore, declare that as I – the plaintiff possess and occupy the said property and as the possession of this property has not been handed over to respondents nos.5 – 6, this sale deed is null and void.

2. Pass decree declaring the sale-deed dated 15/11/2010 void as it is unlawful and without consideration and not enforceable.

3. Pass permanent injunction order against the respondents that they shall not cause any damage or harm to the sugarcane crop, farm house, agricultural equipments, tractor, trailer etc and trees and greenery and shall not cause any hindrance or obstacle in my possession and shall not alienate my possession without following due legal procedure.

4. Pass permanent injunction order against the respondents that they shall not carry out or enter into any transactions of sale, gift, lease or any other kind with respect to this property.

5. Pass permanent injunction order against the respondents that they shall not forcibly drive me – the plaintiff out from the suit property without following due legal procedure.

6. Declare that the sale deed, executed by respondent no. 1 to 4 with respect to the undivided property without demarcation of share on actual spot and without obtaining permission of block division of the suit property, is unlawful and it is not binding to me – the plaintiff.

7. Declare that till the suit property is divided and demarcation of boundary is done, the respondent no. 5 and 6 are not entitled to get possession from me – the plaintiff.

8. Order the respondents to pay the cost of this suit.

2.2 In the very same suit filed by the respondent no.1, the appellants herein and the other defendants preferred a counter claim. The counter claim and the reliefs prayed in the counter claim reads thus:

Counter claim of Respondent No. 1 to 6 in this case is as follows.

Counter claim of the Respondents against the Plaintiff in this suit is as follows. This counter claim is separate and in addition to the contentions and prayers raised in the reply of the Respondent and it may be considered to be in addition to the reply filed in this suit. Counter claim on behalf of Respondent Nos. 1 to 6 is as follows.

(1) A suit has been filed by the Plaintiff in connection with the land situated at Moje Village Mota, Taluka Bardoli, bearing Account No. 811, Block No. 68, Survey No. 42, 43, 45, admeasuring Hectare 6 - 73 Aare 81 Sq.mt, Aakar Rs. 69.60 and we the Respondents have filed a reply for the same. The said disputed land bearing Block No. 68, which is a very fertile and cultivable land from the very beginning, is our ancestral property. We Respondent Nos. 1 to 4 are also the joint owners of the said land and we the Respondents and Plaintiff are the co-sharers of the said land. The said land has not been partitioned. We the Respondents are entitled to receive total 80% share of the said disputed land.

(2) Father of the Plaintiff and Respondent was farming and cultivating the said disputed land till he died in the year 1997 and thereafter, the said land was given for cultivation to our relative of Kharvasa and he cultivated the said l