R.S.A. No. 3055 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3055 of 2008 Date of decision: 10.2.2009 Daya Chand and others ....Appellants Versus Bane Singh and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Raj Mohan Singh, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 29.2.2008 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/appellants for declaration with consequential relief of permanent injunction stands dismissed. Plaintiffs and defendant No. 2 inherited property of Ganga Dan in equal shares, and thus it was claimed that each of the plaintiffs and defendant No. 2 were owners of land measuring 7 kanals 5 marlas each. Plaintiff No. 4 i.e. Smt. Shanti and defendant No. 2 executed a registered sale deed in favour of defendant No. 1 for sale of 8 kanals of land. Thereafter by way of second sale deed, plaintiff No. 1 i.e. Daya Chand and defendant No. 2 sold another 8 kanals of land by way of joint sale deed in favour of defendant No. 1. The case set up by the plaintiff/appellants was that in view of the fact that the total land falling to the share of defendant No. 2 was only 7 kanals 5 marlas, therefore, he could not have sold 8 kanals of R.S.A. No. 3055 of 2008 -2- land, as in both the sale deeds, referred to above, he sold half share along with joint share of co-sharer, and thus the total land sold by defendant No. 2 comes to 8 kanals. The learned trial Court decreed the suit holding that defendant No. 2 was not entitled to sell more than his share i.e. 7 kanals 5 marlas out of which 4 kanals stood already sold by way of sale deed dated 8.12.1988. Defendant No. 1 filed an appeal against the judgment and decree passed by the learned trial Court. The appeal stands allowed. The learned lower appellate Court found that it was a joint sale deed between plaintiff No. 1 and defendant No. 2, and jointly they owned land more than 8 kanals and, therefore, sale in favour of defendant No. 1 could not be faulted for the reason that one co-sharer selling the land did not have half of the share in the land sold merely because in the sale deed it was mentioned that each of the party is selling its share. It is settled law that sale out of joint khata is out of the share of the vendor and, therefore, the learned lower appellate Court was right in holding that the plaintiffs No. 1 and 2 and defendant No. 2 did have in their share of more than 8 kanals, therefore, the sale deed could not have been objected to by the plaintiffs on the plea that the area sold was more than the share of defendant No. 2. The learned counsel for the appellant raised the following substantial question of law: - “Whether the subsequent sale deed did not create a valid title in favour of vendee?” In support of the substantial question of law, the learned counsel for the appellants contends that once it was admitted case of the parties that defendant No. 2 was owner of only 7 kanals and 5 R.S.A. No. 3055 of 2008 -3- marlas of land but sold more than his share, the sale was bad in law and, therefore, the substantial question of law deserved to be answered in favour of the appellants, and judgment and decree passed by the learned lower appellate Court deserves to be set aside and that of learned trial Court restored. However, on consideration of matter, I find no force in the contention of the learned counsel for the appellants. Situation would have been different, if two separate sale deeds would have been executed by plaintiff No. 1 and defendant No. 2, transferring certain area to the vendee. However, once by way of joint sale deed, 8 kanals of area has been sold and plaintiff No. 1 along with defendant No. 2, who jointly had more than 8 kanals of area in joint holding, the sale deed in favour of defendant No. 1 could not be objected to. The dispute, if any, could be between plaintiff No. 1 and defendant No. 2 qua share in money received. The substantial question of law, framed, is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) Judge February 10, 2009 R.S.