1979 PLP 788 (CLC)

(2) Whether the suit has been instituted without obtaining permission under Order 1, rule 8, C. P. C. and is, therefore, not maintainable ? O. P. Ds. (3) Whether the sale-deed of the suit land was executed by defendant No. 1 in favour of defendant No. 2 without any right ? O. P. Ps. (4) Relief ? Afterwards another additional issue was framed which is :- (5) Whether the land sold was in the ownership of the defendant vendor and. keeping in view the over all Shamilat Deb of Dhoke Panjori, it is within the share of defendant No, 1 and if so, how it affects the suit ? O. P. Ds. The parties led their evidence both oral and documentary in the trial Court which came to the conclusion that the plaintiffs were in possession of the cultivable portion of the suit land and that the rest of the land was in possession of the whole proprietary body including the plaintiffs. It also came to the conclusion that the vendor being an owner in the village, too had his share of Shamilat Deb to the extent of 22 kanals 16 marlas and that to this extent the sale-deed was valid. Another finding given by the trial Court was that since the suit was filed by the plaintiffs in their individual capacity, Order I, rule 8, C. P. C. had no application to the suit. It however, found that the sale was for a consideration of Rs. 1,

000. So far as the subsequent two sale-deeds, executed in favour of Ghulam Nabi Khan vendor, were concerned, the trial Court held that as they had been obtained after the impugned sale, and during the pendency of the suit, they could not help the vendee even if by virtue of these two sale-deeds vendor Ghulam Nabi Khan had obtained additional share in the Shamlat in excess of what he had sold. As a result of these findings the trial Court decreed the suit on 20-8-1968 holding that the impugned sale-deed was valid only up to the extent of 22 kanals, 16 marlas and beyond that it was ineffective qua the rights of the plaintiffs. Against this judgment and decree, Ghulam Nabi Khan and M or Mohammad Ayub Khan went in appeal before the Court of District Judge, who decided issue No. 1 against the plaintiffs but did not disturb the findings of the trial Court about issue No.

2. About issue No. 5, it was held that the sale-deed was ineffective and inoperative, so far as the rights of the plaintiffs were concerned, but it remained effective qua the share of Ghulam Nabi vendor. This judgment and decree of the first appellate Court was challenged in second appeal before a learned Single Judge of the High Court, who upset the judgment and decree passed by the First Appellate Court thereby restoring that of the trial Court vide judgment and decree dated 19-12-1973. It is against this judgment and decree of the High Court that the present appeal has come up before us.

4. The learned counsel for the appellant has launched the following three-pronged attack against the impugned judgment and decree of the High Court .- (i) That the plaintiffs are not in possession of the suit land and as such this declaratory suit without consequential relief is liable to be dismissed. (ii) Since the land in dispute is Shamilat Deb land, the plaintiffs should have instituted the suit under Order 1, rule 8, C. P. C. as a representive suit and not a suit in their individual capacity, and therefore, because, of this inherent flaw, the suit is liable to be dismissed. (iii) As vendor Ghulam Nabi Khan had become entitled through subsequent two sale-deeds, to a share in the Shamilat Deb to the extent of 393 kanals 10 marlas, the land sold to the tune of 267 kanals, 8 marlaF is well within his share rendering the impugned sale-deed quite valid and operative against the plaintiffs. We propose to deal with those points seriatim :-

5. On the point of possession, the case of the learned counsel for the appellant is that, as per copy of Khasra Girdawari Exh. D A, in the column of ownership and the tenancy, the possession of the whole proprietary body is shown as and it: is only in `Kharif' 1961 that the possession of Jamroz Khan and others has been entered in red ink on the basis of the decision of the Deputy Commissioner dated 19-6-1963. In this very column, previous entry showing the possession of Ghulam Na bi and others has been scored out. But again in `Rabi' 1962 the possession of GhulamNabi and others has been recorded. On the basis of these entries, it is contended that even originally the suit land was not in possession of the plaintiffs but the whole proprietary body and it was only in `Kharif' 1961 that due to the decision of the Deputy Commissioner; the possession of the plaintiffs was entered. This entry, according to him, was only a paper entry as the actual physical possession, in spite of the decision of the Deputy Commissioner, remained with Ghulam Nabi and others as evidenced by the entries of Khasra Girdawari `Rabi' 1963. On this basis, it is pleaded, the trial Court and the second appellate Court have erred in holding that the suit land was in possession of the plaintiffs. As an alternate plea, it is further contended that even if it be presumed that the plaintiffs were in possession, the evidence shows that they were in possession of only four kanals of the Shamilat Deb land which could not entitle them to bring a simple declaratory suit without praying for consequential relief for the entire land sold. We have given our anxious consideration to these arguments and find them untenable. The reason is, as rightly held by the trial Court and the High Court, it was for the first time in `Kharif' 1961 that vendor's possession was entered in the Khasra Girdawri. This entry was challenged by way of appeal before the Collector, who got a thorough inquiry held in the matter through the Naib-Tehsildar and the Tehsildar. These Revenue Officers came to ;he conclusion that the disputed entry showing the possession of Ghularn Nabr Khan and others in 'Kharif' 1961, was incorrect and it was at their recommendation that the Collector, vide his order dated 20th June, 1963, ordered the correction of the entry by replacing the possession of Ghulam Nabi Khan and others by that of Jamroz Khan and others. Against this order, Ghulam Nabi Khan and others went in revision to the Commissioner who rejected the revision application thereby confirming the decision of the Collector. The trial Court as well as the High Court did not rely upon subsequent entry of 'Rabi' 1963 showing the possession of Ghulam Nabi Khan and otheis on the sound reason that this entry contravened the provisions of section 35 of the Land Revenue Act, which, inter alia, requires such disputed entire to be entered by the Patwari in the Mutation Register to be dealt with in the mariner prescribed in subsections (4) and (5) of section 34 of the Land Revenue Act. It is conceded by the counsel for the appellant that this entry was made by the Patwari in contravention of the provisions of section 35 of the Land Revenue Act. In view of this position, we agree that it cannot be given any credence.4 and the Courts below were right in ignoring this entry. Another factor that militates against this entry is non-mention of this change in `Roze namcha Waqiati' where such a change of possession should have found its place. There is no doubt that the oral evidence shows that there are only four kanals of the cultivable land out of the whole suit land. Because of this fact, the arguments developed by the learned counsel for the appellant is, that the respondents are not in actual physical possession of the rest of the land. Our view is, that even if it were so (though the revenue authorities have shown the plaintiffs in possession of the whole suit land) this fact, per se, does not affect the nature of the suit because it is neither the case of the appellant nor there is any evidence on record to show that vendee, Major Mohammad Ayub Khali, is a -proprietor in this village. Since his possession is that of total stranger, the plaintiffs being amongst the proprietary body will be deemed to be in constructive possession of every inch of the land, a forliori, against a stranger. In view of this fact, we find little force in this alternate plea as well, and hold that the plaint as framed does not suffer from the defect pointed out by the learned counsel for the appellant.

6. So far as the application of Order 1, rule 8, C. P. C. is concerned, a cursory glance over the plaint shows that the plaintiffs have challenged the impugned sale in their individual capacity and not in a representative capacity so as to attract the application of Order 1, rule 8, C. P. C. Order 1,~ rule 8, C. P. C., it may be stated, is an enabling provision- and does not necessarily require a person or persons to bring a suit under this rule if such B a person or persons undertake to sue in their individual capacity and note in a representative capacity. In our view any proprietor, who has a right' to share in Shamlat Deb, can bring a suit of the present nature in respect of an injury to his right even though such a sale is injurious to the other proprietary body as well. We find full support for this view from Mulla's Code of Civil Procedure (13th Edition); pages 953 and 954, where the learned author has reproduced the decision given in I_. Remashiah v. M. Ramayya (1957 A P 964). "Order 1, rule 8, Civil Procedure Code, is an enabling provision and does not compel anyone to represent many, if, by himself, he has a right of suit. This rule does not vest a right of suit in a person and if he, by himself, has no right to sue, he cannot proceed to sue on behalf of other by invoking the aid of Order 1, rule 8, Civil Procedure Code. At the same time, Order 1, rule 8, Civil Procedure Code, does not debar a member of the village community from maintaining a suit in his own right in respect of a wrong done to him though the act complained of may also be injurious to some other . villagers."

7. The learned counsel for the appellant has advanced the next plea that since subsequent to the impugned sale, the vendor had obtained further two sale-deeds, Exhs. DE and DF, these sale-deeds are to be taken into consideration when computing the share of the vendor in the Shamilat Deb vis-a-vis the impugned sale-deed. We consider this argument as untenable for the simple reason that it is not a fight between the vendor and the vendee but a case where some of the proprietary body is challenging the G sale in Shamilat Deb by the vendor beyond his share as existing at the time of the impugned sale deed. The subsequent acquisitions by the vendor, therefore, cannot in any way validate the impugned sale-deed which was beyond the share of the vendor as existing at the time of the execution of the impugned sale-deed. This is elementary and we agree with both the trial Court and the High Court that the doctrine of Us pendens is squarely attracted to this case, as these acquisitions were made during the pendency of the suit. The plain fact remains that at the time of the execution of the impugned sale-deed, vendor Ghulam Nabi's share in the Shamilat Deb was not more than 22 kanals 16 marlas and he could not, therefore, transfer at that time more than his then existing share in the Shamilat Deb. There fore, we repel the argument that because of the subsequent purchases made by Ghulam Nabi vendor, the impugned sale-deed was unassailable.

8. Another argument advanced by the learned counsel for the appellant is that since the plaintiffs were suing in their individual capacity and not in a representative capacity, they had no locus standi to challenge the whole sale-deed and that at the most the effectiveness or otherwise of the impugned sale-deed was referable to the plaintiffs' own share in the Shamilat Deb. For this he has referred to the statement of Mohammad Yaqoob Girdawar D. W., according to whom the share of the plaintiffs in the Shamilat Deb comes to 102 kanals. On this basis, the argument developed is, that the plaintiff could challenge the impugned sale deed only to, the extent of 102 kanals and if at all the impugned sale-deed is to be- ".Id invalid, it could be so only to the extent of 102 kanals and no more. On the face of it, this argument seems to have some force but on analysis of the circumstances of the case and the law on the point, we find it unacceptable for the following reasons :-. (a) As already stated, the plaintiffs have prayed for the cancellation of the whole sale-deed on the ground that it is beyond the share of the vendor. A co-sharer or a co-owner in the common village property can challenge such a sale even if the Shamilat Deb land sold is beyond his share, provided it affects the interest of the other proprietary body and the challenger does not set up an adverse title of his own against the rest of the proprietary body. Of course if such a shareholder wishes to get the possession of his own share in the Shamilat Deh, he can do so through partition proceedings and can get possession to the extent of his own share only. (b) It is significant to note that it is not even claimed, much less, proved, that the vendee has any proprietary right in the village. In view of this, it will be reasonable to presume that the vendee is a told stranger to the village community. Therefore, when a co-sharer sells ,a common village property beyond his share to a stranger, any co-sharer" having interest in the common property, can bring a suit on behalf of all, even without the aid of Order I, rule 8, C. P. C., provided he does not set up any adverse claim or title of his own against the other co-sharers affected by the sale-deed. In the present case, tla;"' plaintiffs have not set up any adverse title against the other co-sharers and all that they have prayed for, is a declaration to the effect than `the impugned sale-deed is invalid and ineffective except to the extent of the share of the vendor. (c) We also find that the vendor, though a co-sharer, has set up an adverse claim against all the co-sharers, by not only selling the common land more than his share, but also taking tip the stand in his writt.-n statement that he could do so and was in possession and ownership of the land sold by him. The same position has been taken by the vendee, thus degenerating both of them to the position of a trespasser so far as the sale of common village land beyond the share of the vendor is concerned. Under such circum stances, any co-sharer without impleading the other co-sharers, can bring such a suit, seeking declaration about the sale being ineffective and invalid, not only about his rights but also about the rights of the whole proprietary body in the village. In support of this I reposition, reference may be bad to P L D 1957 Lab.

43. In this case, the plaintiff-'s share was only to the extent of 1/2 of the land sold without but he had challenged the transaction about the whole land. Repelling the argument that the plaintiff could challenge the transaction only upto the extent of his own share, the decree was given concerning the whole land. Other authorities in the same line are P L D 1964 Dacca 739 and P L D 1955 .Lab. 31, wherein it has been held that any co-sharer can sue against a trespasser without impleading the other co-sharers. In the same strain is A I R 1942 Pesh.

9. In view of this legal position, we are of the view that the impugned sale-deed could be challenged by the plaintiffs, even if the sale-deed covered more than plaintiffs' share in the village common land. The end result of the whole discussion is that we find the decisions of the trial Court and the High Court unassailable and accordingly dismiss the appeal with costs.. As the parties are residing in Mirpur District, the judgment shall be sent to the Deputy Registrar Supreme Court, Mirpur for announcement of the judgment after giving due notices to the concerned. S. Q. Appeal dismissed.