Regular Second Appeal No. 3640 of 1987 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 17.9.2009 [1] RSA No.3640 of 1987 Harchand Singh and others ......Appellants Versus Naranjan Singh and others .......Respondents Present: Shri J.S. Chaudhary, Senior Advocate, with Shri F.S. Virk, Advocate, for the appellants. Shri Piyush Gupta, Advocate, for Shri P.K. Gupta, Advocate, for the respondents. [2] RSA No.3157 of 1987 Naranjan Singh and others ......Appellants Versus Balbir Singh and others .......Respondents [3] RSA No. 3158 of 1987 Naranjan Singh and others ......Appellants Versus Balbir Singh and others .......Respondents Present: Shri Piyush Gupta, Advocate, for Shri P.K. Gupta, Advocate, for the appellants. Shri J.S. Chaudhary, Senior Advocate, with Shri F.S. Virk, Advocate, for the respondents. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. Regular Second Appeal No. 3640 of 1987 [ 2] 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. (Oral). This order shall dispose of RSA No. 3640; 3157 and 3158 of 1987, as all these appeals raise common questions of law and facts. Regular Second Appeal No. 3157 and 3158 of 1987 have been filed by the defendants arising out of Civil Suit No. 387-T of 4.11.1982, whereas Regular Second Appeal No. 3640 of 1987 has been filed by the defendants arising out of Civil Suit No. 438-T of 20.12.1982. One Balbir Singh was a co-sharer in the land measuring 1317 Kanals 10 marlas. The plaintiffs in Civil Suit No. 387-T of 4.11.1982 claimed to have purchased the land measuring 40 kanals of Balbir Singh, through his Mukhtiar-e-am Harcharan Singh, vide sale deed dated 1.12.1980. The vendees filed the aforesaid suit for injunction so as to restrain the other co-sharers from interfering in possession of the vendees of the land purchased vide the aforesaid sale deed. Whereas in Civil Suit No. 438-T of 20.12.1982, the said sale deed executed by Balbir Singh through his attorney was challenged on the ground that the attorney was not competent to sell the same as the Regular Second Appeal No. 3640 of 1987 [ 3] power of attorney was cancelled by Balbir Singh on 8.6.1979. It has also come on record that Balbir Singh has filed a separate suit challenging sale effected on 1.12.1980 which is stated to be pending at Fatehgarh Sahib as per the judgment and decree of the Courts below. However, the learned counsel for the parties could not disclose the status of the aforesaid case. The learned trial Court dismissed the suit filed by the vendees on the ground that the vendees are not proved to be in possession of the suit land in terms of the sale as the property was in possession of a Receiver in the proceedings under Section 145 Cr.P.C. The Civil Suit bearing No. 438-T of 20.12.1982 was partly decreed, granting decree for permanent injunction from interfering in possession of the co-sharers in the land in suit, but the suit challenging the sale deed dated 1.12.1980 was found to be not maintainable as it was found that the plaintiffs in Civil Suit No. 438-T of 20.12.1982 does not have any right to challenge the sale effected by Balbir Singh. Separate appeals were filed by the parties, which were decided by a common judgment on 28.7.1987. The suit for injunction filed by the vendees (Civil Suit No. 387-T of 4.12.1982) was decreed. It was found that the vendor was reflected as a person in possession of the suit property and, therefore, he could transfer the same in favour of the vendee. Civil Suit No. 438-T of 20.12.1982 was decreed holding that sale deed dated 1.12.1980 is null and void as a co-sharer could not sell specific Khasra and such sale can be challenged by the other co- Regular Second Appeal No. 3640 of 1987 [ 4] sharers. Against the said decree, the appeals aforesaid have been filed. I have heard learned counsel for the parties on the following substantial questions of law:- “Whether a co-sharer has a right to challenge the sale effected by other co-sharer(s) of a specific khasra number? Learned counsel for the plaintiffs (vendees) in RSA No. 3640 of 1987, relies upon the Full Bench judgment of this Court in Bhartu v. Ram Sarup, 1981 PLR 204, wherein it has been held that even if a co-sharer effects a sale of a specific khasra number, still it is a sale of the joint land. In the later Full Bench of the Five Hon'ble Judges of this Court in Ram Chander v. Bhim Singh and others, 2008(3) PLR 747, while reiterating the view taken in Bhartu's case (supra), it has been held as under:- “18. It is, therefore, apparent that a co-owner has an interest in the entire property and also in every parcel of the joint land. When a co-sharer alienates his share or a part thereof in the joint holding what he brings forth for sale is what he owns i.e. a joint undivided interest in the joint property. A khasra/killa number, forming part of a specific khasra/killa number, forming part of a specific rectangle number, but being a part of a joint khewat would, in view of the nature of the rights conferred upon a co-sharer, be deemed to be the sale of a share from the joint khewat and such a vendee would be deemed to be a co-owner /co- sharer in the entire joint khewat, irrespective of the artificial divisions of the joint land into different Regular Second Appeal No. 3640 of 1987 [ 5] rectangles, khasra and killa numbers. 19. Another attribute of joint property is that where a co-owner in possession of a specific portion of the joint holding and recorded as such in the revenue record, transfers any right, title or interest from the portion in his specific possession, his vendee would be entitled to protect the portion so transferred, without however, asserting exclusive ownership to the portion so transferred and possessed, till such time as the joint estate is not partitioned. xx xx xx 21. As a result of the above discussion, we express our complete agreement with the opinion, recorded in the Full Bench in Bhartu v. 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.” In view of the aforesaid authoritative pronouncement of the Full Bench of the Five Hon'ble Judges of this Court, sale of land by Balbir Singh, through his attorney Harcharan Singh is a sale of a joint property and thus, is not open to challenge by the other co-sharers. A Regular Second Appeal No. 3640 of 1987 [ 6] co-sharer has no right to challenge the sale effected by other co-sharer as such sale is not said to be beyond the share of Balbir Singh. In view of the aforesaid judgment and the principles settled therein, a co-sharer has no right to challenge the sale by other co-sharers of a specific khasra number. At this stage, it may be clarified that such finding is without prejudice to the rights of Balbir Singh, which he may have in his suit, which was allegedly pending before the competent Court at Fatehgarh Sahib. Regular Second Appeal Nos. 3157 and 3158 of 1987. The issue raised by the appellants is whether the vendee can be said to be in possession of the suit land and thus, the appellants- other co-sharers can be restrained from interfering in possession of the vendees. The learned first Appellate Court found that in the jamabandi for the year 1979-80 (Exhibit P.2), Balbir Singh is recorded as a person in possession of the suit land as a co-sharer. Khasra Girdawari was ordered to be corrected vide order dated 4.7.1982 (Exhibit P.5) at the instance of the vendees. The first Appellate Court found that there is nothing on record to show as to how the appellants in these Regular Second Appeals (RSA Nos. 3157-58 of 1987) displaced the possession of Balbir Singh. The Appellate Court also noticed that Balbir Singh was recorded as a person in possession in Rabi 1980 and there is presumption of continuity of possession. Thus, Regular Second Appeal No. 3640 of 1987 [ 7] the Court returned a finding that the vendees are in possession of the suit land on the basis of sale by Balbir Singh vide sale deed dated 1.12.1980. Such finding is based upon proper appreciation of evidence. It could not be pointed out that any evidence has been misread or not taken into consideration. Consequently, Regular Second Appeal No. 3640 of 1987 is allowed and the judgment and decree of the learned first Appellate Court declaring the sale deed dated 1.12.1980 as null and void is set aside. Regular Second Appeals No. 3157 and 3158 of 1987 are dismissed and the judgment and decree of the first Appellate Court, decreeing the suit (Civil Suit No. 387-T of 4.12.1982) for permanent injunction, is affirmed. [ HEMANT GUPTA ] JUDGE 17.9.2009 ds