RSA No. 715 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 715 of 1986 Date of decision: July 13, 2011 Raj Kumar ...Appellant Versus Dalmir Singh alias Dalbir Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashwani Chopra, Senior Advocate with Ms. Divya Sharma, Advocate, for the appellant. None for the respondent. GURDEV SINGH, J. (Oral) This is the second appeal preferred by the appellant/plaintiff, Raj Kumar, against the judgment and decree dated 18.11.1985 passed by the Additional District Judge, Ferozepur, vide which he accepted the first appeal preferred by the respondent/defendant, Dalmir Singh @ Dalbir Singh, and set aside judgment and decree dated 4.3.1985 passed by Sub Judge, IInd Class, Ferozepur, vide which the suit of the plaintiff was decreed for possession of the land in dispute measuring 8 kanals comprised in Khasra Nos. 9/1 (2-12) and 9/2 (5-8) situated in the area of village Santokh Singhwala, Tehsil Fazilka, by way of specific performance of the agreement to sell dated 25.8.1980. The plaintiff filed the suit for possession of the land by way of specific performance of the agreement and in the alternative for recovery of RSA No. 715 of 1986 2 Rs. 3,000/-; Rs. 2,000/- as earnest money and Rs. 1,000/- damages @ of 12% per annum. He pleaded that the defendant was the owner of the land in dispute, which he agreed to sell in his favour for a sum of Rs. 3,000/-, vide agreement dated 25.8.1980 and received Rs. 2,000/- as earnest money. Vide that agreement, he agreed to execute the sale deed in his favour on or before 24.8.1981 on receipt of the balance sale consideration of Rs. 1,000/- but failed to do so, inspite of the fact that he throughout remained ready and willing to perform his part of the contract. The suit was resisted by the defendant. In his written statement, he admitted that he was the owner of the land in dispute. He denied the other contentions of the plaintiff and pleaded that he never agreed to sell this land in favour of the plaintiff nor received any earnest money and that the agreement might have been fabricated by the plaintiff. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the defendant executed an agreement dated 25.8.1980 in favour of the plaintiff regarding the suit land and received Rs. 2,000/- as earnest money ? OPP 2. Whether the plaintiff had always been ready and willing to perform his part of the contract ? OPP 3. Whether the plaintiff is entitled to the declaration prayed for ? OPP 4. Whether this Court has no jurisdiction to try the present suit ? OPD 5. Relief. To succeed in the suit, the plaintiff examined Prem Kumar RSA No. 715 of 1986 3 (PW-2), Janak Raj (PW-3), Ramesh Lal Sethi (PW-4) Harbhagwan Singh (PW-5), Manjit Singh Kamboj (PW-6) and he himself entered into the witness box as PW-1. On the other hand, the defendant stepped into the witness box as DW-1 and examined Surain Singh (DW-2). After going through the evidence, so produced and hearing learned counsel for the parties, the trial court decided all the issues in favour of the plaintiff and resultantly decreed the suit. The defendant preferred an appeal against that judgment and decree, which found favour with the first appellate court and was accepted and as a consequence thereof, the judgment of the trial court was set aside. I have heard learned counsel for the appellant. Learned counsel for the plaintiff has placed on record the questions of law formulated by him and submitted that the first appellate court committed an illegality while non-suiting the plaintiff on the ground that the defendant was not the exclusive owner of the land in dispute and that the plaintiff failed to prove on record that the joint land had been partitioned amongst the defendant and other co-sharers. The defendant himself admitted in the written statement that he was the owner of the land in dispute and in view of that admission such a finding could not have been recorded by the first appellate court. In view of the grounds of appeal and above said submissions made by the learned counsel for the plaintiff, the following question of law arises in the present appeal:- “Whether the first appellate court was justified in setting aside the judgment and decree of the trial court on the ground that the land in dispute was recorded to be the joint land of the RSA No. 715 of 1986 4 defendant and other co-sharers in the jamabandi ? In para No.1 of the written statement, the defendant specifically admitted that he was the owner of the land in dispute. At no stage, it was the case of the defendant that he was not the owner of this land or that the same was jointly owned by him and other co-sharers. He did not depose to that effect even when he entered into the witness box as DW-1. However, in the jamabandi for the year 1982-1983, placed on record, the land in dispute is recorded jointly in the name of the defendant and other co-sharers, but it is pertinent to note that in the column of possession, it is the defendant, who is recorded to be in exclusive possession of this land bearing Khasra Nos. 9/1 (2-12) and 9/2 (5-8). It is a matter of common knowledge that for the beneficial enjoyment of the joint land, the co-sharers enter into different parcels of joint land. A co-sharer in exclusive possession of separate parcel of the joint land, not exceeding his share, can transfer a valid title therein in favour of a third person. Even if a co-sharer is not in exclusive possession of any particular khasra number of joint land, he can transfer specific khasra number, not exceeding his share, and that sale is to operate as the sale of his share in the joint land. Therefore, the first appellate court was not justified in non-suiting the plaintiff and setting aside the judgment and decree of the trial court on the ground that the land was still joint between the defendant and other co-sharers and, as such, he could not have agreed to sell the same. Such a finding cannot be sustained. Therefore, the above formulated question of law is decided in favour of the plaintiff. In the result, this appeal is hereby accepted. The judgment and decree dated 18.11.1985 passed by the Additional District Judge, Ferozepur, RSA No. 715 of 1986 5 is set aside and the appeal is remanded back to that Court for deciding the same afresh, after recording findings on all the issues. The parties are directed to appear before that Court on 18.8.2011. Records of the courts below be returned forthwith. July 13, 2011 (GURDEV SINGH ) prem JUDGE RSA No. 715 of 1986 6