Regular Second Appeal No. 1347 of 1983 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1347 of 1983 Date of Order: 05.11.2008 Chet Ram ....Appellant Versus Angur Singh and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Rao Devinder Singh Nirban, Advocate for the appellant. Mr. Lokesh Sinhal, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellant challenges a judgment and decree dated 02.04.1983, passed by the Additional District Judge, Rohtak, accepting the appeal, filed by the respondents reversing the judgment and decree passed by the Sub Judge Ist Class, Jhajjar, dated 03.11.1982 and as a result decreeing the suit for possession by way of preemption filed by the respondents. The plaintiffs-respondents filed a suit for possession by way of preemption, with respect to Plot No. 224/1/2, measuring 10 marlas situated in village Bawa Tehsil Kosli, which was sold by Bhagwan Dass and Giani Ram sons of Jai Karan to Chet Ram son of Devi Sahai, (the appellant) vide sale deed dated 11.06.1980. The plaintiffs-respondents alleged that as they are co-sharers, pursuant to a prior sale deed dated 31.12.1974, they have a preferential right to preempt the sale. The appellant contested the suit and in his written statement denied that the plaintiffs-respondents are co-sharers or entitled to preempt the sale. On the basis of the pleadings, the trial Court framed the following Regular Second Appeal No. 1347 of 1983 -2- issues:- “i) Whether the plaintiff has a superior right of preemption in respect of the sale of suit property? OPP ii) Whether the sale consideration of Rs.1500/- was fixed in good faith and actually paid? OPD iii) If issue No.2 is not proved what was the market value of the suit property at the time of its sale? OPP. iv) Whether the vendee defendant incurred expenses on account of stamp and registration charges? OPD v) Whether the plaintiffs have no locus standi to file the suit ?OPD vi) Whether the defendant was tenant over suit property at the time of its sale?OPD vii) Whether defendant-vendee incurred expenses on improvement of the suit property after its purchase as alleged. If so how much and to what affect? OPD viii) Whether the suit is time barred?OPD ix) Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court dismissed the suit. The trial Court held that as the appellant had purchased land from Khasra No.224/1/2 whereas the plaintiffs-respondents had purchased land from Khasra No.224/1, they were not co-sharers and, therefore, not entitled to preempt the sale. Aggrieved by the aforesaid judgment and decree, the respondents filed an appeal. The first appellate Court accepted the appeal, reversed the judgment and decree passed by the trial court and decreed the suit by holding that the plaintiffs-respondents had become co- Regular Second Appeal No. 1347 of 1983 -3- sharers of the suit land pursuant to a prior sale deed dated 31.12.1974 Ex.P2 and, therefore, had a preferential right to preempt the sale deed executed in favour of the appellant. Counsel for the appellant submits that after purchase of land vide sale deed dated 31.12.1974, Ex.P2 the respondents were assigned a separate khasra number reflecting their separate ownership and possession. The Patwari prepared a Tatiama severing Khasra No. 224/1 into two Khasra Nos. 224/1/1 and 224/1/2. Khasra No.224/1/1 came to the share of the respondents. The appellant, on the other hand, has purchased land from Khasra No.224/1/2 vide registered sale deed dated 06.06.1980. It is, therefore, argued that by allotment of a separate khasra number, the joint nature of the property and the joint status of the co-sharers came to an end. As a result, the first appellate court committed an error in holding that the plaintiffs-respondents are co-sharers and, therefore, entitled to preempt the sale. Counsel for the respondents, on the other hand, submits that the appellant has failed to adduce any evidence reflecting severance of the joint status or partition of the joint holding. The mutation Ex.P1 records the original co-sharers, namely, Bhagwan Dass, Ram Sarup, Rameshwar, Kanhiya Lal, Hazari Lal and Giani Ram sons of Jai Karan as owners. Rameshwar and Hazari Lal sold 16 Marlas of land from the joint khewat bearing Khasra No.224/1, vide sale deed dated 31.12.1974, to the respondents. The respondents, therefore, became co-sharers in joint possession of the entire khewat. The mere allotment of a separate khasra number to the respondents would not raise an inference of partition. It is further submitted that so long as partition is not effected, sale by a co- sharer by reference to specific khasra numbers or to boundaries is a sale of share in joint property and, therefore, the first appellate court rightly held that the respondents are co-sharers entitled to preempt the sale executed Regular Second Appeal No. 1347 of 1983 -4- in favour of the appellant. Reliance is placed upon a Full Bench judgment of this Court reported as Bhartu v. Ram Sarup, 1981 PLJ 204, affirmed and reiterated by another Full Bench in R.S.A. No. 815 of 1994 titled as Ram Chander v. Bhim singh & others, decided on 23.05.2008. Before proceeding to adjudicate the contentions raised by counsel for the parties, it would be appropriate to refer to the law relating to joint property, and rights and liabilities emanating therefrom. A Division Bench of this Court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab 528, considered the rights and liabilities of co-sharers and succinctly held as follows:- “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession. (3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or Regular Second Appeal No. 1347 of 1983 -5- abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any one to disturb the arrangement without the consent of others except by filing a suit for partition. (8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co- owner sets up an exclusive title in himself. (9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purpose, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that special damage has been suffered. Case law reviewed.” Despite this clear enunciation of law, disputes relating to rights and liabilities arising from alienation of joint land particularly where co-sharers sold joint property by reference to specific khasra numbers or to boundaries, continued to arise. One such dispute, came to be referred to a Full Bench in Bhartu v. Ram Sarup(supra). After considering the nature of joint property, it was held that sale by a co- sharer by reference to specific khasra numbers or to boundaries Regular Second Appeal No. 1347 of 1983 -6- would be sale of a share from joint holding. In order to place the conclusion recorded by the Hon'ble Full Bench in its correct perspective it would be appropriate to refer to a relevant extract therefrom:- “6. Take another example where `A' and `B' jointly own a khewat in equal shares measuring 200 bighas. `B' is in separate possession of 100 bighas of land comprised of specific khasra numbers and transfers it to `C'. This is not disputed that in spite of this sale, `A' continues to be a co-sharer in the land transferred by `B'. If that is so how can it be disputed that `C' would necessarily be a co-sharer in the remaining 100 bighas of land in possession of `A' as otherwise it would mean that `A' is exclusively owner of 100 bighas of land in his possession and also a co-sharer with `C' in the remaining 100 bighas which obviously is not possible. The matter can further be illustrated by another example. `A' and `B' are co-sharers in the joint khewat, say of 100 bighas of land in equal shares. `B' who is in exclusive possession of land measuring 40 bighas of land comprised of khasra Nos.1, 2, 3 and 4 transfers two khasra numbers, that is, 1 and 2, measuring 20 bighas to `C' specifically stating in the deed that he is in possession of these khasra numbers as a co-sharer and is transferring his interest as such. Can it be said on these facts that `C' has purchased anything except a co- sharer's interest in khasra Nos.1 and 2 in spite of the fact that the sale is of specific numbers and of the specified area. The answer obviously would be in the Regular Second Appeal No. 1347 of 1983 -7- negative and if so then the sale is obviously of a share by the co-sharer out of the joint land and nothing else.” The correctness of this judgment came to be doubted, in view of a judgment of a coordinate Full Bench in Lachman Singh v. Pritam Chand, 1970 P.L.R. 341, and, therefore, the matter was placed before a Bench of five Hon'ble Judges. After considering the opinion recorded in the above mentioned judgments, the Full Bench, in Ram Chander v. Bhim singh & others(supra) approved the opinion recorded in Bhartu v. Ram Sarup(supra) and overruled the opinion recorded in Lachman Singh v. Pritam Chand(supra). A relevant extract from the judgment in Ram Chander case (supra)reads as under:- “As a result of the above discussion, we express our complete agreement with the opinion, recorded in the Full Bench in Bhartu vs Ram Sarup's case (supra) and are sanguine in our understanding of the law so as to hold that the Full Bench judgment in Lachhman Singh's case (supra) does not lay down the correct position in law, as while considering the rights of a vendor/co- sharer, flowing from his status as a co-sharer/joint owner, the Full Bench in Lachhman Singh's case (supra) disregarded the nature of joint property and the status of joint owners, and placed undue significance upon artificial divisions of land, made by revenue authorities intended to identify land, namely: rectangle numbers, killa/khasra numbers etc. Revenue entries reflect the rights of the parties as opposed to conferring rights and raise rebuttable presumptions as to their correctness. They reflect an existing state of affairs, namely, an existing Regular Second Appeal No. 1347 of 1983 -8- title or a state of possession. Entries in revenue records neither confer nor deprive a person of his title, whether joint or separate. Rectangle numbers and Killa numbers are revenue measures, used by revenue authorities to identify and describe fields that constitute the ownership of a land owner. A holding may be divided into different Khewats, Khataunis, rectangles and killas/khasras all bearing different numbers. Where parties are joint owners or co-sharers, the land would comprise of a Khewat or khewats, different khataunis, rectangles and/or khasra/killa numbers. Thus, where a group of land owners holds land in joint ownership and are reflected as owners in common of the khewat, commonly known as the joint khewat, they would continue to remain owners in possession of the land, though described as being situated in different khataunis, rectangles and khasra/killa numbers. Division of land into different rectangles, khasra or killa numbers does not alter the nature of property held in common or the rights of co-sharers flowing therefrom. The Full Bench in Lachhman Singh's case (supra), disregarded the nature of joint property and by placing undue reliance upon artificial divisions of land meant to identify land, erred while holding that a vendee, who purchases land from a joint khewat by reference to specific rectangles and khasra numbers, does not become a co-sharer in the entire joint khewat. Consequently, and in view of what has been stated herein above, we hold that the opinion recorded Regular Second Appeal No. 1347 of 1983 -9- in Bhartu vs Ram Sarup's case (supra) is the correct enunciation of law with respect to rights conferred upon a vendee, who purchases land out of a joint khewat, and the opinion recorded in Lachhman Singh's case (supra) does not lay down the correct position of law and is, therefore, over-ruled. The reference is accordingly answered in the aforementioned terms.” It is, therefore, apparent that till such time as joint property is not partitioned, whether by agreement or by orders passed by revenue authorities, in accordance with the procedure established under the Punjab Land Revenue Act, the property continues to be joint. The mere fact that one or the other co-sharer may be in possession of a separate parcel of joint land, reflected by separate khasra numbers or rectangles, would not lead to an inference of partition. I have heard counsel for the parties, perused the impugned judgment as also the record relevant for adjudicating this appeal. It is not denied that Bhagwan Dass, Ram Sarup, Rameshwar, Kanhiya Lal, Hazari Lal and Giani Ram were owners in joint possession of Khasra No. 224/1. The plaintiffs-respondents purchased 16 marlas out of this joint holding from two of these co-sharers namely Rameshwar and Hazari, Lal vide sale deed dated 31.12.1974 Ex.P2. On the basis of this sale deed, the revenue authorities sanctioned a mutation Ex.P1. Column No.4 of the mutation clearly reflects Bhagwan Dass etc. as co-sharers. The revenue authorities, bifurcated khasra No. 224/1 into khasra No. 224/1/1, and Khasra No.224/1/2. The land purchased by the respondents was assigned Khasra No.224/1/1 whereas Khasra No.224/1/2 continued in the name of the original co-sharers. Out of the Khasra No.224/1/2, the appellant purchased 10 marlas vide sale deed dated 06.06.1980 (Ex.P4) from Giani Ram and Bhagwan Dass , co-sharers. A perusal of the sale Regular Second Appeal No. 1347 of 1983 -10- deeds Ex.P-2 and Ex.P-4 leaves no manner of doubt that the appellant and the plaintiffs-respondents, purchased land by reference to boundaries and measurements from different khasra numbers, though, part of the same joint khewat/holding. The first appellate court, therefore, rightly held after a perusal of the sale deeds and the revenue record that the plaintiffs- respondents are co-sharers and, therefore, have a preferential right to preempt the sale deed. The appellant has failed to adduce any evidence of partition of the joint property or establish any infirmity whether of law or of fact as would raise any substantial question of law that would require adjudication, in the exercise of jurisdiction under Section 100 of the CPC. Before parting with the judgment, it would be necessary to mention here that vide order dated 14.09.1983, the respondents preemptors were permitted to withdraw 4/5th of the preemption money without prejudice to their rights subject to suitable orders being passed at the time of disposal of the appeal. The respondents would be required to deposit the balance of preemption amount withdrawn by them pursuant to order dated 14.09.1983, within a period of one month from the date of receipt of certified copy of a order. As a result, the appeal is dismissed with no order as to costs. November 05, 2008 (RAJIVE BHALLA) nt JUDGE Regular Second Appeal No. 1347 of 1983 -11- Criminal Misc. No.365 of 2009 in Criminal Misc. No.15343 of 2008 Present: Mr. R.S.Malhotra, Advocate for the applicant-petitioner *** The petition was dismissed for non prosecution. As held by Hon'ble the Supreme court in Hari Singh Mann v. Harbhajan Singh Bajwa, 2000(4) R.C.R.(Criminal) 650, this court has no jurisdiction to recall the order dated 19.12.2008. Dismissed. However, liberty is granted to the petitioner to file a fresh petition on the same cause of action. 15.1.2009 (RAJIVE BHALLA) GS JUDGE