R.S.A.No. 750 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 750 of 2011 (O&M) Date of decision: 15.2.2011 Gurnam Singh ......Appellant Versus Avtar Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Gurcharan Singh, Advocate, for the appellant. **** SABINA, J. Plaintiffs had filed a suit for declaration, possession and permanent injunction. The case of the plaintiffs, in brief, was that Nagina Singh, Sadhu Singh , Arjan Singh and Bachan Singh were owners of the joint khewat. On 24.11.1992, defendant Gurnam Singh sold 3 kanals 16 marlas of land to the plaintiffs in equal shares. After the execution of the sale deed, mutation was sanctioned in the name of the plaintiffs and they remained in possession of the land purchased by them. At the time of execution of the sale deed Gurnam Singh did R.S.A.No. 750 of 2011 (O&M) 2 not disclose to the plaintiffs that proceedings qua partition of the land were pending. On 25.5.1989, Instrument of Partition was prepared by Assistant Collector, Ist grade, Fatehgarh Sahib as per Naksha Zeem dated 30.111988. No appeal was filed against the said order. The land sold to the plaintiffs went to the share of Dharam Singh. Legal representative of Dharam Singh sold 16 kanals 9 marlas of land including 3 kanals 16 marlas of land purchased by the plaintiffs to the proforma defendants in equal shares vide sale deed dated 14.6.1999. Plaintiffs came to know about the said fact when warrant of possession was issued against them. The plaintiffs lodged FIR No.772 dated 10.12.2004 at police station Sadar Patiala under Sections 406, 420 of the Indian Penal Code against the defendant and the said proceedings were pending. Defendant No.1, in his written statement, averred that father of defendant No.1 was four brothers and were owners of joint khewat measuring 338 kanals 15 marlas. 3 kanals 16 marlas of land had been sold by the answering defendant out of his 1/12th share in the said joint holding i.e. out of his share 28 kanals 4 marlas. The plaintiffs remained in cultivating possession of the land till 18.9.2003. Passing of the order in partition proceedings was admitted. Defendants No.2 and 3 in their written statement, took up similar pleas as those taken by defendant No.1. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners of land measuring 3 kanals 16 marlas on the basis of the sale deed dated 24.11.1992? OPP. R.S.A.No. 750 of 2011 (O&M) 3 2. Whether the plaintiffs are entitled to possession of the land measuring 3 kanals 16 marlas out of the share of defendant No.1 out of 338 kanals 16 marlas ? OPP 3. Whether the defendants are liable to be restrained from alienating any part of the suit property ? OPP 4.Whether the suit is not maintainable ? OPD 5. Whether the suit is barred by principles of estoppel ? OPD 6. Whether the plaintiffs have no cause of action to file the present suit ? OPD 7. Relief.” The trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 31.8.2007. Aggrieved by the same, they preferred an appeal and vide judgment and decree dated 14.9.2010 passed by Additional District Judge, Fast Track Court, Patiala the suit of the plaintiffs was decreed and held them to be in joint possession of land measuring 3 kanals 16 marlas being share out of 1/12th share of the defendant in the total land. Defendant was restrained from alienating the said share which he had sold to the plaintiffs vide sale deed dated 24.11.1992. Hence, the present appeal by Defendant No.1. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Admittedly, defendant Gurnam Singh had sold 3 kanals 16 marlas of land bearing khasra No.3/1 (3-0), 4/ 1 (0-16) to the plaintiffs vide sale deed Ex.P-3 dated 24.11.1992 for a consideration R.S.A.No. 750 of 2011 (O&M) 4 of ` 33,500/-. Possession of the land was also handed over to the plaintiffs after the execution of the sale deed. Mutation was sanctioned in favour of the plaintiffs on the basis of the sale deed. Dharam Singh filed an application dated 3.3.1983 seeking partition of the joint land. In the partition proceedings sanad takseem was prepared and the khasra numbers which had been sold to the plaintiffs fell to the share of Dharam Singh. Possession of the said khasra numbers was handed over to the legal heirs of Dharam Singh on the basis of warrant of possession issued in the partition proceedings. It is a settled proposition of law that even if a co-sharer sell specific khasra number out of a joint khewat then the said sale shall be construed to be sale qua share of the vendor/co-sharer. Since the plaintiffs had purchased 3 kanals 16 marlas of land out of the share of Gurnam Singh from the joint khewat, the plaintiffs became co-sharers in the suit property with defendant No.1. In these circumstances, the first appellate Court rightly passed a decree of joint possession of land measuring 3 kanals 16 marlas out of the share of defendant Gurnam Singh and further rightly restrained the defendant from alienating the said share. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE February 15, 2011 anita