RSA No.894 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.894 of 2008 (O&M) Date of Decision: 27.01.2009 Hans Raj & Ors. ..Appellants Vs. Udey Ram & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.L.N.Verma, Advocate, for the appellants. Mr.Sandeep Punchhi, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) By way of this regular second appeal challenge is to the judgment and decree dated 12.2.2008 passed by the learned Additional District Judge, Sirsa accepting the appeal filed by the defendant/respondents. The plaintiff/appellants brought a suit for declaration claiming therein that they along with defendant No.1 and several others are joint RSA No.894 of 2008 2 owners in possession as per their respective shares in the total land measuring 250 kanals 9 marlas. The plaintiffs claimed that they were owners in possession, in equal shares of 1/3rd share, and proforma defendant No.6 is the owner in possession of 1/3rd share, defendant No.1, Krishan is owner in possession of 1/21th share, of total land. The land is yet to be partitioned. The plaintiffs claimed that they are in exclusive possession of the land comprised in Rect No.14 Killa No.2/2min-south (0-4), 3 min south (0-9), and 4/1 min-south (0-4), where Bajri crop has been sown. Defendant No.1 executed a registered exchange deed transferring the land giving specific numbers in favour of defendants No.2 to 5, who are threatening their exclusive possession. Though the learned trial court decreed the suit, learned lower appellate court reversed the decree by observing as under:- “9. Admittedly the total land measuring 250 Kanals 9 Marlas has not been partitioned between the co-owners. Defendant No.1 Krishan is owner to the extent of 1/21 share in the total land Perusal of the revenue documents i.e. copies of jamabandies and khasra girdawaris of the suit land shows that all the co-shares/joint owners are in joint possession of the total land. None of the co-owners has been shown in exclusive possession of any part of the total land. The claim of the plaintiffs that they are in actual cultivating possession of the suit land measuring 17 marlas is not supported by any document Ex.P.3 is the copy of disputed exchange deed dated 13.7.2001 showing that defendant No.1 had exchanged specific RSA No.894 of 2008 3 killa numbers in faovur of defendant No.2 Udey Ram. Admittedly, Krishan (defendant No.1) was owner of much more land than the suit land in the total land measuring 250 kansls 9 marlas. The question is whether defendant No.1 could legally exchange specific killa numbers out of un-partitioned joint land in favour of Udey Ram (defendant No.2). Obviously answer to such a query is in the negative. But the exchange deed cannot be set aside on this ground. It is settled law that sale of specific portion of a land described by particular Khasra numbers by a co-owner out of the joint khewat would be considered as a sale of a share out of the joint land. On the same analogy the exchange of a specific portion of the land described by khasra numbers by a co-sharer out of the joint land would be considered as exchange of his share out of the joint land. Reference in this respect may be made to full bench authority of our Hon'ble High Court cited as Bhartu Vs. Ram Sarup 1981 PLJ 204. It was also observed in the cited authority that a co- sharer in possession exclusively of some portion of joint holding not more than his share is entitled to continue in possession till joint holding is partitioned. Had the plaintiffs were able to show their exclusive possession over the suit land, a decree could be passed in their favour. But as discussed above, the plaintiffs have miserably failed to prove their exclusive possession over the suit land and hence their attack on the legality of the exchange deed is not sustainable. Section RSA No.894 of 2008 4 44 of the Transfer of Property Act also regulates the rights of a transferee from a co-owner, providing that where one or two or more co-owners of the immovable property legally competent in that belief, transfers his share of such property or any interest therein,the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of transfer, the share of interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specific portion. Consequently, the effect in law of the exchange of specific portion in the joint land is that it is only an exchange of portion of share of one of the co- owners.” Learned counsel for the appellants contends that the learned lower appellate court misinterpreted the judgment of Full Bench of this court in the case of Bhartu Vs. Ram Sarup 1981 PLJ 204, wherein it has been laid down that where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. Co-sharer in possession exclusively of some portion of joint holding not more than the share he is entitled to continue in RSA No.894 of 2008 5 possession till joint holding is partitioned, he can transfer that portion subject to adjustment at the time of partition. Transferee under section 44 of the Transfer of Property Act gets right of transferor to joint possession and to enforce partition whether property sold is fractional share or specified portion. Sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of joint holding. The contention of the learned counsel for the appellant cannot be accepted. Full Bench of this court has laid down that sale of share by the co-sharer even of a specified portion is to be treated to be sale of his share out of joint holding. The suit for declaration to challenge the exchange deed was misconceived. The plaintiffs also failed to prove that they were in exclusive possession of the land to claim injunction against a co-sharer. It is settled law that co-sharer cannot maintain a suit for injunction against other co-sharers and the remedy, if any, is of partition. Thus, the learned lower appellate court was fully justified in reversing the judgment and decree passed by the learned trial court granting injunction against the co-sharer. Substantial questions of law raised by the learned counsel for the appellants in this appeal read as under:- 1. Whether a co-sharer in unpartitioned holding can transfer in specific numbers an area not in his separate and exclusive possession? 2. Whether a transferor can put the transferee in a position better and more advantageous than he himself is in before the transfer? RSA No.894 of 2008 6 3. Whether a co-sharer in unpartitioned holding can transfer in specific numbers an area in his separate and exclusive possession and put the transferee in separate possession thereof subject to adjustment in final partition? It is settled law that a co-sharer cannot transfer specified numbers and sale qua specified numbers also is to be treated as sale of share. The possession of the transferee, therefore, is to be treated as possession subject to final partition. The substantial questions of law as claimed, therefore, do not arise for consideration in this appeal by this court. No merit. Dismissed. 27.01.2009 (Vinod K.Sharma) rp Judge