Vijay Kumar vs Hanuman and another

L.N. Mittal

Defendant no. 2 Vijay Kumar having failed in both the courts below has filed the instant second appeal.

Respondent no. 1 plaintiff Hanuman filed suit against Ranjit defendant no. 1/proforma respondent no. 2 and Vijay Kumar defendant no. 2/appellant alleging that plaintiff is co-sharer in land measuring 26 kanals which has not yet been partitioned. Defendants are also co-sharers in the said joint land. However, defendants intended to transfer specific valuable portion of the joint land without partition. Plaintiff sought injunction against the defendants from doing so.

Defence of defendant no. 1 was struck off by the trial court.

Defendant no. 2 contested the suit and pleaded that Sohan Lal father of the plaintiff, Bhera and Ranjit defendant no. 1 were real brothers being sons of Ladhu. They were owners in possession of half share of 74 kanals land including suit land measuring 26 kanals. Budh Ram was owner in possession of the remaining half share of 74 kanals land. He was also co-sharer in khewat no. 208. He sold his half share in both the khewats to defendant no. 2 vide sale deed dated 25.2.1999 and possession of the land of specific khasra numbers out of the joint land was given to defendant no. 2 vendee and accordingly, defendant no. 2 is in exclusive possession thereof. Plaintiff''s father Sohan Lal suffered consent judgment and decree dated 27.11.1997 in favour of the plaintiff regarding specific khasra numbers which were in possession of defendant no. 2. The said decree and consequent mutation are illegal, null and void as Sohan Lal himself was not in possession of the said specific khasra numbers. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 28.1.2009 decreed the plaintiff''s suit thereby restraining defendants from alienating specific khasra numbers from joint holding. However, at the same time, the defendants were given liberty to alienate their share in the joint holding and also to deliver possession of the land which is in the possession of the defendants, to the vendees. First appeal preferred by defendant no. 2 has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 16.4.2010. Feeling aggrieved, defendant no. 2 has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

It is undisputed that suit land measuring 26 kanals is still joint land of the parties and other co-sharers and has not yet been partitioned. Even defendant no. 2 has not alleged any partition of the said joint land. However, stand of defendant no. 2 is that he is in possession of specific khasra numbers out of the joint land. This stand of the defendant no. 2 - appellant has been upheld by the courts below. It is, therefore, beyond comprehension as to why defendant no. 2 is still aggrieved. On the contrary, on the basis of exclusive possession of defendant no. 2 over specific khasra numbers out of the joint land, interest of defendant no. 2 as well as of defendant no. 1 has been protected by the courts below. Defendants have been given liberty to transfer their share from joint holding and also to give possession to the vendees of specific khasra numbers out of the joint holding which is in possession of the defendants. In view thereof, defendant no. 2 also has no cause of grievance. The suit land being still joint, the defendants have no right to alienate the specific portion thereof. It would obviously cause harm and loss and injury to the other co-sharers. Defendants have right to transfer their share as such and also have right to deliver possession of the land which is in their exclusive possession to the transferees. This right of the defendants has already been protected by the courts below.

In view of the aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine.