RSA No.775 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.775 of 1991 Date of Decision: 4.2.2009 Chhinda Singh ..Appellant Vs. Mohinder Kaur & Anr.. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Onkar Rai, Advocate, for the appellant. Mr.Anupam Sharma, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 14.5.1990 passed by the learned District Judge, Kapurthala RSA No.775 of 1991 2 decreeing the suit filed by the plaintiff/respondent for declaration, that the decree for possession by specific performance of agreement passed by the learned Senior Sub Judge, Kapurthala in civil suit No.17 of 1982 titled as Chhinda Singh Vs. Chanan Singh, with regard to the land measuring 4 kanals of land was null and void and not binding on her right, with a consequential relief of permanent injunction restraining the appellant/defendant from executing the sale deed with respect of the said land by way of execution of decree dated 5.9.1984 and from dispossessing her from joint possession of the land. The plaintiff brought a suit on the plea that execution proceedings in the case Chhinda Singh Vs. Chanan Singh were pending in the court of learned Senior Sub Judge, Kapurthala and as per information and knowledge of the respondent/plaintiff decree is for possession by way of specific performance of agreement to sell, executed by defendant No.2 Chanan Singh in favour of defendant No.1, Chhinda Singh for the land measuring 8 kanals bearing khasra No.29//25 detailed in the had-note of the plaint. It was the plea set up that defendant No.2 was co-sharer to the extent of ½ share in the said land and as such the plaintiff is owner in possession to the extent of 4 kanals of the suit land. The decree being executed by defendant No.1 is for the land measuring 8 kanals. The plaintiff/respondent was not party to the said decree and thus, it was claimed that the decree was inoperative and void qua the rights of the plaintiff, qua her share of land. She claimed to be owner in joint possession of her share. RSA No.775 of 1991 3 The defendants contested the suit by denying the averments made in the plaint. Preliminary objection was taken that the suit was not maintainable in the present form. Plaintiff was said to be the wife of defendant No.2. It was claimed that the suit was filed at the instance of defendant No.2, her husband, only to deprive defendant No.1 from enjoying the fruits of the decree. The plea of limitation was also raised. On merit. it was pleaded that the agreement to sell was executed by defendant No.2 which was legal and valid. The suit land was said to have come to share of defendant No.2 in family partition. It was admitted that the plaintiff is co-sharer in the suit land along with some other land of defendant No.2 prior to the execution of the agreement for sale by defendant No.2 in favour of defendant No.1. The land was said to be in possession of defendant No.2 alone as co-sharer. Thus, it was claimed that he was competent to sell the entire suit land and decree passed thereon was legal and valid. It was also claimed that there is still some joint land of the plaintiff and defendant No.2 which is more than the share claimed by the plaintiff. It was said that defendant No.2 had not sold more than his share in the joint khewat. The plaintiff was said to be not in possession of the suit land as owner in joint possession. Learned trial court on the pleadings of the parties was pleased to frame the following issues:- 1. Whether the decree dated 5.9.1984 is illegal, void and inoperative qua the plaintiff with regard to the suit land? OPP RSA No.775 of 1991 4 2. Whether the plaintiff is entitled to decree for declaration and permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the present suit is filed at the instance of defendant No.2, as alleged in para No.2 in the preliminary objection, if so, its effect? OPD 5. Whether the suit is within time? OPP 6., Relief. On issues No.1 and 2 learned trial court observed that in cross- examination the plaintiff admitted that the suit land was purchased from Tarlok Singh by the plaintiff and her husband Chanan Singh. DW 2 in his statement stated that the plaintiff was residing with her elder son whereas her husband defendant No.1 was residing separately with his younger son. The plaintiff was said to be in possession of 4 kanals out of 8 kanals of land and that she was in possession of the land on the eastern side. However, DW 2 was not able to tell as to from whom she purchased the land in dispute. However, it was admitted that the entries in khasra girdawari were made separately regarding the suit land in favour of the plaintiff and defendant No.2. The stand taken by DW 1 i.e. defendant-appellant was that the property in dispute had come to the share of defendant No.2 under the family partition. However, he failed to execute the sale deed as per agreement to sell the suit for specific performance filed by him succeeded RSA No.775 of 1991 5 and attained finality. It was stated in the evidence that suit was filed to delay the execution proceedings. In cross-examination it was admitted that Baldev Singh son of the plaintiff was not in possession of agricultural land, nor he was able to tell khasra number of the other land said to be jointly held by Mohinder Kaur and Charan Singh, except the land in dispute. Learned trial court dismissed the suit by holding that by way of family settlement the property in dispute fell to the share of defendant No.2 and therefore, he was competent to dispose of the property. Issues No.1 and 2 were decided in favour of the appellant/defendant. Issues No.3 and 4 were decided against the defendants. Issue No.5 was not pressed. Consequently the suit filed by the plaintiff was ordered to be dismissed. In appeal, learned lower appellate court reversed the findings on issues No.1 and 2 in view of the evidence on record showing that as per the revenue record the plaintiff was recorded co-sharer to the extent of half share in the suit land. Learned lower appellate court held that the evidence on record went against the defendant-appellant and in favour of the plaintiff. Revenue record produced on record shows that Mohinder Kaur plaintiff along with Chanan Singh defendant No.2 was shown to be owner in possession in equal share of entire khata. The witnesses produced by the defendants admitted that there was no family settlement regarding the land owned jointly by Mohinder Kaur and Chanan Singh, which could be said to have come in their possession. RSA No.775 of 1991 6 The learned lower appellate court held that there was no evidence on record to prove the family partition between the parties under which defendant No.2 could be held to be owner of entire 8 kanals of land as was the case set up by the defendant/appellant. Learned lower appellate court rightly observed that in view of the facts and evidence brought on record Charan Singh could have only disposed of only 4 kanals of land falling to his share and the plaintiff/respondent was entitled to a decree qua 4 kanals of land. Defendant/appellant also failed to place on record any number of joint holding to show that the share of defendant No.2 was more than 4 kanals in the joint khata so as to defeat the right of the plaintiff/respondent. Learned lower court was justified in reversing the judgment of the learned trial court and rightly decreed the suit. The contention of the learned counsel for the appellant/defendants that substantial question of law for consideration in this appeal would be: “Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of evidence brought on record, thus, perverse?” However, in view of the findings recorded above it can safely be said that the findings recorded by the learned lower appellate court are as per evidence on record, as it cannot be disputed that there was no evidence qua jointness of the property except khata No.25 which was measuring 8 kanals out of which the plaintiff was recorded as owner in possession of half share as co-sharer. RSA No.775 of 1991 7 A co-sharer can sell his share even in the joint khata. However, the share in excess could not be sold. The findings recorded by the learned lower appellate court, thus, are in consonance with law and cannot be said to be the outcome of misreading of evidence. The substantial question of law claimed is answered against the appellant. No merit. Dismissed. However, in case defendant No.2 is found to be owner any other land as owner or co-sharer the appellant/defendant would be at liberty to execute the decree qua additional 4 kanals from the said laid. 4.2.2009 (Vinod K.Sharma) rp Judge