1 43 1 l V Reqular Second Apoeal No84 of 2011 lO 8 M I IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Dateof Decision February Il 2011 1 1 f Reqular Second Aopeal No34 of 2011 lO S M I 5 0 U Santokh Singh and others I C5 Versus I Baldev Singh espondent Z CORAM HONBLE MRUSTICE MOHINDER PAL C I le Whether Reportersof Iocal papers may be allowed to see the judgment7 40 2e To be referred to the Reportersornot z 3 Whether the judgmentshould be reportedin the Digest7 er Presentl Mrs Lisa Gill Advocate for the appellantse I7 Z 0 Cl MrNikas MehsempuriAdvocate for the respondent MOHINDER PAL 0 Plaintiffsappellantsare in second appeal aggrieved against the judgmentand decree passedby the IowerappellateCourtwhereby judgment and decree passed by the trial Court decreeing the suit of the for permanent injunction restraining the from alienating by way of sale deed gift deed etc JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 44 2 L Reqular Second Aopeal Non684 01 2011 10 81 1 the suit Iand was set aside thereby the suit of the plaintiff I have heard Mrs Lisa GiII Advocate appearing for the appellantsand Mrikas MehsempuriAdvocate appearing for the reSPOndentandhave gone throughthe records of the case The short questioninvolved in this appeal is that whether 1 a coesharer in joint Iand has a rightto sell his share without getting 0 the Iand partitioned and whether he can deliver possessionof the 0 I portionof the joint Iand to the vendor if he IS Ill exclusive possession t5 thereof For the reasons to be givenhereinafter this question has I to be answered in the affirmative Z The placed on record jamabandi 2 Exhibit DAI which reflects GurdipSingh Darshan Singh Kulwant Singh X and Baldev Singlreal brotherslto be joint owners In equalshares of the total Iand measuring 238 Kanals 18 Marlas Suit Iand measuring Z 65 kanals 3 marlas isshowntobe in possession of BhagwantSinghand 00 Nirmal Singhsons of Baldev Singh Land measuring wao Z 83 Kanals 9 Marlas IS shown to be in possessionof GurdipSingh Land Qe measuring 50 Kanals 4 Marlas IS shown to be in possession of BhupinderSingh Avtar Singh and Lakhwinder Singh sons of Kulwant Singh Land measuring 8 Kanals is shown to be in possessionof Darshan Singh Sukhdev Singh son of Gurdip Singhis shown to be in possession of 18 Kanals of Iand out of 238 kanals 18 marlas of Iand The red note appended i rl the said Jamabandi reflects about sanction of mutation of GurdipSingh in favour of Sukhdev Singh Balwinder Singhand Kuibir Singh olaintiffappellants 114th share out of 238 Kanals 18 MarIas Likewise there is another note ill the said Jamabandi regardingmutation by Darshan Singh in favour of JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 45 3 Reqular Second Aooeal No84 of 2011 10 8 M I his sons Harbhej Singh and Santokh Singh However in the said Jamabandi there IS no mention of partition having been effected and No doubt in the written statement filed by the in this suit he claimed that partition has already been effected between the parties as per Rapat dated 4 1998 and that suit Iand fell to the share of the sons m 1 of the namely BhagwantSingh and Nirmal Singh 0 and they are in exclusive possessionof the suit Iand but this claim U of the defendantrespondentwith regard to panition is nottrue The I defendantespondent Baldev Singh a Iongwith his sons BhagwantSingh and Nirmai Singh had tlled a suit for injunction against the Z Ill the year 2001 wherein they themselves ciaimed Z r to be coesharers in the suit Khewat and other Iand althoughthey I had asserted exclusive possessionon the basis of family settlement Cl only for the purposes of cultivation JoginderSingh DeWe3 who had Z been examined by the defendanespondentto assert and prove Rapt r11 No246 in his crossexamination stated that only Rozenamcha Z Wakiati had been prepared Iil the present casee It shows that Sanad has not as yet been preparedand till it IS prepared partition is not finalized However it stands established on record that BhagwantSinghand Nirmal Singh sons of defendantrespondentBaldev Singh are in exclusive possession of the suit Iand measuring 65 Kanals 3 Marlas out of the total Iand measuring 238 Kanals 18 Marlas It is wellsettled that a cosharer can alienate the Iand to the extent of hisshare The prayer of the plaintiHappellants in the instant suit is that the defendantrespondent be restrained from alienatingthe suit Iand in any manner and it is not their claim that the defendant be restrained from alienating specific khasra numbers of JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document C 1 1 46 I V Reqular Second AoDeal No84 of 2011 lO 8 M I which he is not in possessionor more than his share It was on this account that the Iower appellateCourt held that the defendant is within his powerto alienate specific khasra numbers which are in his exclusive possession but any such sale deed effected by him shall be construed to be sale of his share and shall be subjectto rightsof the partiesto be adjudicatedduringthe course of partition No fault can be m found with this findingof the Iower appellateCourt which is hereby 0 affirmed A Fuli Bench of this Court in the case of Bhartu veRam 40 I Saruo 1981 PU 204 held that a comsharer in the joint Iand has a right to sell his share without getting the Iand partitioned A Iearned I Single Judge of this Court Ill the case of Gurdial Sinqh and others Z VS Harmaliit Sinqh and others 2007 21 PLJ 208 by relyingupon the authorityreportedas Mlse DCM Shriram Consolidated Ltde Vs Jai I Sinqh 2006 PU 123 held that no injunction can be anted against cosharer In exclusive possession of hisshare especially When Z the plaintiff coesharerlhimself has been in exclusive possession or has 00 been utilizinghis share as in the present case where the plaintiffs 7 Z appellants are In exclusive possession of their share as per 0 Jamabandi Exhibit D tl For the aforesaid reasons I do not flnd any merit in this appealwhich is herebydismissed There shall be no order as to costs e Datedl FebruaryIl 2011 ak JUDGE ddesl jtt09138 I4 JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document