R.S.A. No. 3767 of 2008 (O&M) 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No. 3767 of 2008 (O&M) Date of Decision : 30.1.2009 Baldev Mitter .......... Appellant Versus Gurbaksh Kaur & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sandeep Bansal, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 12.8.2005 and 13.6.2008 passed by the learned Courts below vide which suit filed by the plaintiff-appellant to challenge the sale deed dated 14.9.2001 executed on behalf of Vikas Chander Vasudeva by the Reader of the Court, as Local Commissioner, in pursuance to the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Hoshiarpur, in faviour of defendant qua land measuring 9 Kanals 6 Marlas comprised in Khewat No. 24, Khatauni No. 29, Khasra Nos. 19//19/1/3 (2-6) and 21(7-0) situated in revenue estate of village Sasoli, tehsil and District Hoshiarpur, to be null and void and inoperative against the rights of the plaintiff and other co-owners, with a consequential relief of permanent injunction restraining the defendant from taking possession of the land mentioned above on the R.S.A. No. 3767 of 2008 (O&M) 2 basis of aforesaid sale deed from the plaintiff or his assignees stands dismissed. The suit has been ordered to be dismissed by the learned lower appellate Court by observing as under :- “11. Now plea of the plaintiff is that Vikas Chander was having only 592/3336 sharer, the area of which comes to be 1 Kanal 15 Mls. bearing khasra No. 19//19/1/3 (2-6) and 21(7-0), out of his share, he sold 5 Mls. of land to the appellant vide sale deed dated 26.6.1989 Ex.P1 and remaining share was sold to Chaman Lal and Bakshshi Ram and thus he was left with no share in the suit property. The sale deeds executed by Vikas Chander in favour of the plaintiff and aforesaid vendors Chaman Lal and Bakshshi Ram were never challenged. In such circumstances when Vikas Chander was having no right, title or interest in the suit property, the sale deed executed by the court or his behalf in favour of the respondent is illegal null and void and the same has no effect on the ownership rights of the plaintiff and other co-sharer and on the basis of the aforesaid sale deed, the respondent has no right to interfere in the possession of the present appellant. To substantial his plea, the appellant has relied upon copy of jamabandi for the year 1996-97 Ex. P2 and copy of jamabandi for the year 1985-86 Ex.P3. 12. During the course of arguments, it was conceded that Vikas Chander was co-sharer to R.S.A. No. 3767 of 2008 (O&M) 3 the extent of 592/3336 share in the total joint holding of which the property in dispute is part and parcel. Even the sale deed Ex.P1 was executed by wife of Vikas Chander being attorney in favour of the appellant out of the total joint holding measuring 146 kanals 5 marlas. It is settled law that sale of specific khasra number out of the joint holding will be considered as sale of share out of the total joint property. Thus in such circumstances, even if sale deed has been executed with regard to specific khasra numbers, this sale deed in favour of the present respondent will be considered as of share out of total joint holding. On the basis of the sale deed in question, the respondent has become only a co-sharer along with the present appellant and other co- owners. Thus, this sale deed cannot be held to be illegal null and void. The appellant is also not entitled for injunction as respondent has become co-sharer with the present appellant after purchase of the land under the impugned sale deed and he has every right to take possession in due course of law i.e. by way of partition. No doubt, in the revenue record i.e. jamabandi for the year 1996-97 Ex.P2 the property in dispute is recorded in the joint possession of the present appellant along with Balwinder Singh and Davinder Singh and application moved by the respondent before the Ld. Trial Court Ex.P4 speaks that respondent is not in possession of the suit property, but being a co-sharer he has the right to seek partition of the total joint holding on R.S.A. No. 3767 of 2008 (O&M) 4 the basis of the sale deed dated 14.9.2001. However, he has no right to illegally and forcibly dispossess the present appellant from the suit property.” Thus, it would be seen that the findings recorded by the learned lower appellate Court are a s per well established principle of law and does not call for any interference by this Court in this regular second appeal. The learned counsel for the appellant contends that the following substantial questions of law arise for consideration by this Court :- 1. Whether sale deed dated 14,9,2001 could be sustained once the vendor Vikash Chander had no right, share or title in suit land ? 2. Whether the suit of the appellant could have been dismissed in toto despite positive observations in his favour regarding grant of relief of permanent injunction for maintaining his possession ? 3. Whether findings of issues No. 1 to 3 could be sustained ? 4. Whether once the court observed that the abovesaid sale should be considered out of the total joint property, at least a decree to that effect should have been passed and the complete suit should not have been dismissed ? 5. Whether the Courts below were justified in dismissing the suit of the plaintiff/appellant without going into R.S.A. No. 3767 of 2008 (O&M) 5 merits of the case ? 6. Whether the findings of Courts below on issues No. 1 to 3 are contrary to pleadings, law, good conscience and natural justice ? The questions framed can not be said to be substantial question of law, to invoke jurisdiction of this Court under Section 100 of the Code of Civil Procedure. As already observed above, the order passed by the learned Courts below are as per well established principle of law, that plaintiff being co-sharer has no right or jurisdiction to challenge the sale deed by other co-owner, qua his share. The appeal, thus, raises no question of law muchless substantial question of law. No merit. Dismissed. 30.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE