Full Judgment
Swatanter Kumar, J.
1. Vide order dated 12.5.1995 notice of motion was issued in this appeal and records were called for. I have heard the learned counsel for the parties and have also gone through the records of the trial Court and the learned lower Appellate Court.
2. There is no dispute to the fact that the respondent before this Court i.e. Prit Pal Singh is a co-owner of the property falling in Khasra No. 331/5 to the extent of 5/18th share. The counsel for the respondent has argued that he has no interest in the shop which is subject matter of the sale-deed Ex.P/1 while according to the recitals of the sale-deed falls in Khasra No. 352. The basic grievance which has been raised by the respondent No. l is that he is a co-owner of Khasra No. 331/5 along with Sat Pal and Sat Pal had no authority, as he was not in exclusive possession to the exclusion of all other co-owners, to execute sale-deed without partition being effected. It is not disputed before me that Prit Pal Singh is not a signatory to the sale-deed and the sale-deed E.x. P1 refers to Khasra No. 352 presently and earlier 332. The total land which has been sold in favour of the present petitioner by Sat Pal is stated to be 26.66. square yards while the mutation which has been recorded vide Ex.P/3 is for 30.04 square yards.
3. The main grievance of the appellant before this Court is that the learned lower Appellate Court should have allowed his application under Order 41 Rule 27 C.P.C. for adducing additional evidence and the dismissal of the said application has caused serious prejudice to the interests of the appellant before this Court. It is clear from the record that plaintiff in the suit had closed his evidence on 16.7.1990 and the case was listed for recording defendants evidence on 6.11.1990. As no DW was present on 6.11.1990 the case was adjourned to 4.2.1991 subject to payment of Rs. 50/- as costs. On 4.2.1991 no body was present and the case was again adjourned to 22.3.1991. On that date again request for adjournment was made on behalf of defendants which was given conditional on payment of Rs. 100/- as costs and last opportunity was granted to the defendants. The case was listed on 26.4.1991. Still the learned trial Court further gave indulgence to the defendant and adjourned the case to 15.5.1991 as no DW was present and granted still another opportunity to lead evidence. On 15.5.1991 an order was passed by the learned trial Court clearly indicating that the evidence of the defendant stands closed, but if the witnesses are brought on own risk and responsibility by the defendants, they would be examined on the next date of hearing i.e. 23.5.1991. Obviously nobody appeared as a witness on behalf of the defendant nor the defendant opted to put himself in the witness box. Consequently the order closing the evidence became final.
4. Learned senior counsel Mr. V.K. Jain argued that he had preferred revision petition against the order dated 15.5.1991/23.5.1991 in which interim stay of further proceedings was granted by the High Court but because the said order could not be communicated to the trial Court, it passed the judgment and decree in the case on 15.6.1992. It appears that the revision was filed quite late. The provisions of Order 41 Rule 27 C.P.C. cannot be said to have been satisfied on the basis of application which was filed before the learned Appellate Court. In fact the said application would only be an indirect method of assailing one of the grounds already taken in the memorandum of appeal.
5. It appears that the trial Court has given sufficient opportunity to the appellant to produce evidence and this cannot be even disputed that the evidence which was sought to be produced by way of additional evidence was in power and possession of the defendant in the suit before the defence evidence was closed after giving as many as six opportunities to the defendants. The respondent before this Court is admittedly a co-sharer of the land comprised in Khasra No. 331/5 and the said land was never sold as per the contents of Ex. P/l, the sale-deed, and as such he has every right to challenge the mutation, if any, effected by the authorities concerned. Mr. Jain has relied upon certain judgments which primarily deal with the rights of a co-owner in the property and sale by a co-owner of the share which is in his exclusive possession. These judgments primarily settle a law that a co-sharer can sell undivided share and as per the provisions of Section 44 of the Transfer of Property Act the transferee of the share of such co-owner would travel into his shoes and would have right to claim partition. None of these cases is a case where the sale is challenged by a person who was not a signatory to the document of transfer i.e. sale-deed. Learned counsel for the appellant has referred to the Full Bench decision of this Court in the case of Bhartu v. Ram Sarup, 1981 P.L.J. 204, but this case is of no help to the appellant before me. Primarily the facts of the case were totally different and the proposition of law laid down by the Full Bench of this Court is not in question in this case.
6. In the facts and circumstances of the case I do not find any jurisdictional or other error in the judgment under appeal. Consequently, the appeal is dismissed. There shall be no orders as to costs.