RSA No. 2941 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH RSA No. 2941 of 2011 (O&M) Date of decision: 14.10.2011 Hardeep Singh and others ... Appellants versus Jit Singh and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.Ankur Soni, Advocate, for the appellants. JORA SINGH, J. C.M.No.8151-C of 2011 In view of the allegations in the application, delay of 28 days in refiling the appeal is condoned. CM stands disposed of. RSA No. 2941 of 2001 Learned counsel for the appellants argued that the appellants purchased land measuring 24 kanals-0 marla as per registered sale deed dated 18.5.1989 and copy of the same is Annexure A-1. Actual possession of land measuring 24 kanals was not delivered to the appellants. Earlier to the sale deed dated 18.5.1989 in favour of the appellants, Jit Singh, vendor, had already sold land measuring 3 kanals 15 marlas. As per registered sale deed dated 18.5.1989, possession of land measuring 20 kanals 5 marlas was delivered. In fact, possession of land measuring 24 kanals should have been delivered to the appellants. With the sale of land measuring 24 kanals as per sale deed dated 18.5.1989, the appellants are entitled to get possession of RSA No. 2941 of 2011 (O&M) 2 land measuring 3 kanals 15 marlas out of land measuring 9 kanals 6 marlas bearing Khewat No. 57 Khatoni No.61 Rect. No.8 Killa No.21 (6-6), Khewat No.221 Khatoni No. 243 Rect. No.18 Killa No. 23/1 (3-0) as per Jamabandi for the year 1996-97. After going through the file, submission of learned counsel for the appellants seems to be not reasonable one. Main suit for possession was instituted by Hardeep Singh on the allegation that land measuring 24 kanals was purchased as per registered sale deed dated 18.5.1989 but before execution of the sale deed dated 18.5.1989, Jit Singh, vendor, had already sold land measuring 3 kanals 15 marlas. So, with the sale of land measuring 3 kanals 15 marlas, possession of land measuring 20 kanals 5 marlas was delivered as per registered sale deed dated 18.5.1989. After going through the evidence on the file, suit for possession filed by Hardeep Singh, appellant No.1, was dismissed vide judgment and decree dated 3.2.2009. Appellants No.2 and 3 despite service did not turn up and they were proceeded against ex parte. Against the judgment and decree dated 3.2.2009, appeal was preferred by Hardeep Singh but the same was dismissed vide judgment dated 11.2.2001. As per sale deed (Annexure A-2) dated 28.4.1989, Jit Singh, one of the co-sharers, sold land measuring 7 kanals 12 marlas situated in Village Nangal Khunga, HB No. 53, Tehsil Dasuya, comprised in Khata No.55/62, Khasra Nos.18//12/3 (1-14), 19//6 (7-7), 7(7-7), 4 (8-0), 5(8-0), Kitta 5, total area 32 kanals 8 marlas being 152/648 share area of land 7 kanals 12 marlas. As per sale deed (Annexure A-1) dated 18.5.1989, land RSA No. 2941 of 2011 (O&M) 3 measuring 24 kanals-0 marla comprised in Khata No.55/62, Khasra Nos.7//24 (8-0), 25 (8-0), 19//4 (8-0), 5 (8-0), Kitta 4, total area 32 kanals-0 marla being 1/2 share land 16 kanals-0 marla out of Khasra Nos. 18/1 (8- 14), 10 (7-7), kitta 2 total area 16 kanals 1 marla being 1/2 share land 8 kanal-0 marla was sold by Jit Singh to the appellants. According to the sale deed dated 18.5.1989 in favour of the appellants, possession of land measuring 24 kanals comprising specific khasra numbers was delivered to the appellants and this fact is also clear from the recital of the sale deed and copy of the jamabandi for the year 1991-92 (Annexure A-3). As per sale deed dated 18.5.1989 and copy of jamabandi (Annexure A-3), possession of land measuring 24 kanals purchased was delivered to the appellants but the main suit is for possession. In case, as per registered sale deed dated 18.5.1989, possession of land measuring 24 kanals was delivered to the appellants, then there was no idea to file suit for possession. In fact, Jit Singh had already sold land measuring 7 kanals 12 marlas as per sale deed dated 28.4.1989. Meaning thereby, Jit Singh had already sold land measuring 3 kanals 15 marals and as per sale deed dated 18.5.1989, again he had sold land measuring 3 kanals 15 marlas, which had already been sold as per sale deed dated 28.4.1989. Appellants are the purchasers. Before purchasing the land measuring 24 kanals, they were to consult the record as to whether Jit Singh is the owner of the land measuring 24 kanals. In case, Jit Singh had sold more than his share and failed to deliver possession of the land measuring 24 kanals and only possession of land measuring 20 kanals 5 marlas was delivered, then separate remedy with the appellants. On the basis of sale deed dated 28.4.1989, appellants had the remedy to file application for partition. In case, Jit Singh is owning some other land, then RSA No. 2941 of 2011 (O&M) 4 possession of land measuring 3 kanals 15 marlas out of some other khasra number than the khasra number mentioned in the sale deed dated 18.5.1989 is to be delivered to the appellants by the revenue authorities and in case the vendor is not owning any other land, then first sale deed dated 28.4.1989 is to be upheld. Second sale deed dated 18.5.1989 in favour of the appellants to the extent of the land owned by Jit Singh, vendor, is to be upheld because Jit Singh, vendor, cannot transfer better title than his own. All these points are to be taken into consideration by the revenue authorities at the time of partition of joint khata as to whether Jit Singh on 18.5.1989 was owning land to the extent of 20 kanals 5 marals or he was owning land measuring 24 kanals and if possession of only 20 kanals 5 marlas of land was delivered to the appellants, then possession of remaining land measuring 3 kanals 15 marlas from other khata number owned by Jit Singh is to be delivered to the appellants. Appellants have no right to file suit for possession of the land measuring 3 kanals 15 marlas out of the land measuring 9 kanals 6 marlas comprised Khewat No. 57 Khatoni No.61 Rect. No.8 Killa No.21 (6-6), Khewat No.221 Khatoni No. 243 Rect. No.18 Killa No. 23/1 (3-0) because they cannot wriggle out of registered sale deed dated 18.5.1989 in their favour. Trial Court as well as First Appellate Court rightly opined that the land measuring 3 kanals 15 marlas was already sold by Jit Singh to Chanchal Singh vide sale deed dated 28.4.1989, whereas appellants purchased land measuring 24 kanals. In case, appellants have taken possession of less area than purchased, then separate remedy with the appellants when all the co-sharers as per jamabandi were not impleaded as respondents. No substantial question of law is involved. Both the Courts below rightly appreciated the evidence on file and rejected the claim of the RSA No. 2941 of 2011 (O&M) 5 appellants. For the reasons recorded above, RSA No. 2941 of 2011 is dismissed. 14.10.2011 ( JORA SINGH ) pk JUDGE