C.R.No.3788 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3788 of 2009 Date of Decision 18.11.2009 Subedar & other ........ Petitioners Versus Hazari Lal ........ Respondent CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA Present: Mr.V.K.Jain, Senior Advocate with Mr.Prashant Vashisth, Advocate, for the petitioners. HEMANT GUPTA, J. The defendants are in revision against the order passed by the learned first appellate court on 13.5.2009, whereby an application filed by the plaintiff-respondent to protect his possession under Order 39 Rules 1 and 2 of the Code of Civil Procedure, was allowed. One Mohar Singh, was owner of 1/10th share of the land measuring 120 kanals 1 marla. He entered into an agreement to sell with the plaintiff-respondent-Hazari Lal on 17.2.1989. After the said agreement, Mohar Singh executed a sale deed on 22.6.1989 in favour of the present petitioner. Hazari Lal, earlier filed a suit for specific performance on the basis of the agreement to sell dated 17.2.1989. The said suit was decreed. In pursuance of finality of the decree of specific performance, sale deed No.2194 dated 6.3.2004, stands executed. C.R.No.3788 of 2009 -2- The sale deed in favour of the petitioners was set aside. In execution of the aforesaid decree, the symbolic possession is said to have been delivered to the decree-holder Hazari Lal. The plaintiff Hazari Lal, filed the present suit for injunction to seek restraint order against the defendant/petitioner from interfering in the possession of the land so vested in him in pursuance of the sale deed executed in respect of share of Mohar Singh. The said suit was accompanied with an application for grant of ad-interim injunction. The learned trial court declined the application for ad-interim injunction but the first appellate court allowed the appeal by setting aside the order passed by the learned trial court. The argument of the defendant-petitioner is that the sale deed dated 22.6.1989, in his favour is in respect of specific khasra number whereas the sale in favour of Hazari Lal is of undivided share, therefore, the plaintiff cannot seek protection of possession in respect of any specific khasra numbers. The only remedy of the plaintiff is to seek partition by metes and bounds. In the absence of partition, the plaintiff is only a co-sharer and, therefore, cannot claim possession of any specific khasra number. A reading of the judgment and decree dated 9.9.1992, passed by the learned trial court in a suit for specific performance leads no manner of doubt that Mohar Singh has agreed to sell his 1/10th share i.e. 12 kanal in favour of Hazari Lal vide agreement to sell dated 17.2.1989. Thereafter, the sale deed in favour of the present petitioners was executed in respect of 8 kanals of the land. The said aspect could not be disputed by the learned counsel for the C.R.No.3788 of 2009 -3- petitioners. Since the sale deed executed in favour of the petitioners was declared to be illegal by the Civil Court, the petitioners cannot claim to be co-sharers on the basis of said illegal sale deed which finally has attained finality. In view thereof, I do not find any patent illegality or irregularity in the orders passed by the learned first appellate court, which may warrant interference by this Court in the revisional jurisdiction of this Court. Dismissed. November 18, 2009 (HEMANT GUPTA) rishu JUDGE