R. S. A. No. 854 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 854 of 2011 Date of Decision : February 21, 2011 Ayub Khan and another .... Appellants Vs. Abdul Hakim .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sanjay Vij, Advocate for the appellants. * * * L. N. MITTAL, J. (Oral) : Defendants Ayub Khan and Sabbudin – sons of Rehmat, having lost in both the courts below, are in second appeal. Moharbi – mother of the defendants was owner of 13 kanals 09 marlas land being 1/10th share of 134 kanals 12 marlas land. She agreed to sell the same to the plaintiff vide agreement to sell dated 28.07.2000. She was in actual possession of 13 kanals 11 marlas land of Rect. No. 9, Killa No.4/2 (0-19), Rect. No.21, Killa Nos. 18/1 (4-12) and 19 (8-0), which is the suit land in the instant suit. Khasra Girdawari of the suit land stood recorded in the name of Rehmat (husband of Moharbi – vendor) being her R. S. A. No. 854 of 2011 2 relative i.e. husband. Rehmat also thumb marked the agreement undertaking to get the Khasra Girdawari of the suit land corrected in favour of the plaintiff-vendee. Vendor Moharbi also agreed to deliver actual possession of the suit land to the plaintiff in lieu of her share in the joint land. Moharbi allegedly committed breach of the agreement and therefore, plaintiff earlier filed suit for specific performance of the agreement. The said suit was decreed. First appeal preferred by Moharbi was also dismissed. In execution petition, sale deed of the suit land was also executed in favour of the plaintiff and mutation has also been sanctioned. Rehmat, who was recorded to be in possession of the suit land as husband and relative of the vendor Moharbi, died in the year 2003 i.e. during pendency of the previous litigation mentioned herein before. Defendants, being his sons and legal heirs, have stepped into his shoes and have replaced him in the column of cultivation in the revenue record. However, neither Rehmat had any right, title or interest in the suit land nor defendants have any right, title or interest therein. Possession of Rehmat on account of being relative or husband of Moharbi – vendor was as licensee and consequently, possession of defendants is also as licensees. On the aforesaid averments, plaintiff filed suit for possession of the suit land. Defendants resisted the suit. They alleged that they have purchased 07 kanals 19 marlas being 1/10th share of 79 kanals 05 marlas R. S. A. No. 854 of 2011 3 land from co-sharer Smt. Naziri vide sale deed dated 15.04.2008 and on account of said subsequent event, defendants have become co-sharers in the joint land and therefore, plaintiff is not entitled to seek possession of the suit land from the defendants. It was also pleaded that after death of Moharbi, defendants being her sons, have inherited the suit land. It was also pleaded that possession of Rehmat over the suit land was adverse and he became its owner by adverse possession being in adverse possession for more than 12 years. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Nuh, vide judgment and decree dated 27.09.2010, decreed the plaintiff's suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Fast Track Court, Nuh, vide judgment and decree dated 12.01.2011. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants vehemently contended that appellants-defendants having become co-sharers in the joint land, decree for possession passed in favour of respondent cannot be executed against defendants and rather plaintiff has to seek partition of the joint land. Reliance in support of this contention has been placed on a judgment of this Court in the case of Ram Devi and others vs. Kartar Singh and others R. S. A. No. 854 of 2011 4 reported as 2010 (2) Haryana Law Reporter 55. It was also contended that the defendants having become co-sharers in the joint land, cannot be dispossessed from the suit land without seeking partition. Reliance in support of this contention has been placed on Full Bench judgment of this Court namely Ram Chander vs. Bhim Singh and others reported as 2008 (4) Civil Court Cases 002 (P&H) (FB). I have carefully considered the aforesaid contentions, but find no merit therein. Defendants' mother and predecessor Moharbi, vide agreement dated 28.07.2000 (Ex.PW-4/A), agreed to deliver possession of the suit land to the plaintiff-vendee in lieu of her share in the joint land, which was sold. However, Khasra Girdawari of the suit land out of the joint land was recorded in the name of Rehmat – husband of Moharbi. By making endorsement on the agreement, Rehmat also agreed to get the said Khasra Girdawari corrected in favour of the plaintiff. Suit for specific performance of the agreement already stands decreed and said decree has attained finality and sale deed pursuant thereto has been executed. Consequently, plaintiff is entitled to actual possession of suit land pursuant to agreement to sell, as ordered to be enforced by the decree in the previous suit. Defendants have stepped into shoes of their mother Moharbi – vendor as well as their father – Rehmat, who was recorded to be in possession of the suit land as licensee R. S. A. No. 854 of 2011 5 under the vendor, being her husband/relative. Consequently, plaintiff is entitled to seek possession of the suit land from the defendants, who have stepped into the shoes of their parents. The defendants, by purchasing share in the joint land, cannot resist delivery of possession of the suit land to the plaintiff because possession of the specific suit land out of the total joint land was to be delivered to the plaintiff-vendee. Consequently, delivery of possession of the suit land to plaintiff-vendee would also be subject to right of other co-sharers in the joint land, to seek partition. According to judgment of Full Bench of this Court in the case of Ram Chander (supra), where a co-owner is in possession of separate parcel of joint land under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement except by filing a suit for partition. In the instant case, vendor Moharbi was in exclusive possession of the suit land out of the joint land through her husband and consequently, her possession could not be disturbed except by filing a suit for partition. Plaintiff has stepped into the shoes of Moharbi in view of decree of specific performance of agreement to sell executed by Moharbi. Consequently, plaintiff is also entitled to seek and retain possession of the suit land and the same cannot be disturbed except only by way of suit for partition. Judgment in the case of Ram Devi (supra), cited by counsel for the appellants, is not at all applicable because in that case, judgment-debtors had purchased the shares of some of the decree-holders and therefore, judgment-debtors had R. S. A. No. 854 of 2011 6 stepped into the shoes of some of the decree-holders. In these circumstances, it was held that the decree could not be executed against them to seek actual possession and rather partition was the only remedy of the remaining decree-holders. In the instant case, however, appellants claimed to have purchased 1/10th share of joint land from some other co- sharer Naziri and not from the decree-holder. Consequently, judgment in the case of Ram Devi (supra) is completely distinguishable on facts. There is another aspect of the matter. Defendants claimed to have purchased 1/10th share in 79 kanals 05 marlas land only. They did not claim to have purchased share in the total joint land measuring 134 kanals 12 marlas. On the other hand, land measuring 13 kanals 11 marlas, of which actual possession is sought by the plaintiff, is not included in 79 kanals 05 marlas land, of which, share has been purchased by the defendants. Consequently, it is also debatable if defendants have at all become co-sharers in the suit land, of which possession is being sought by the plaintiff. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed in limine. February 21, 2011 ( L. N. MITTAL ) monika JUDGE