Mange Ram and Others vs Baru Ram and Others

N.K. Kapoor, J.—This is defendant''s appeal against the judgment and decree of Additional District Judge affirming the judgment and decree of the trial Court whereby the suit filed by the plaintiffs was decreed restraining the defendants from alienating any specific killa No. of the suit land or of the khewat by sale, mortgage etc.

The matter in dispute lies in a very narrow compass. Admittedly, parties arc co-sharers". As per case set up by the plaintiff have 1/10th share in the suit property and defendant No.2 Jagdish Parsad had also 1/10th share. Jagdish Parsad sold 9 Kanals 4 Marias out of land held by him in favour of one Teka. Defendant filed a suit for preemption which was decreed. This way defendant came in the foot-steps of Jagdish Parsad. parties differ regarding the possession of land which was sold by Jagdish Parsad i.e. according to the defendant he has been put in possession which fact is, however, contested by the defendant. As noticed earlier, suit of the plaintiffs was decreed by the trial Court thereby restraining the defendants from alienating any specific killa No. of the suit land by sale, mortgage etc. which finding has been upheld by the lower appellate Court as well.

Learned counsel for the appellant argued that no injunction could be granted against a co-sharer restraining him from transferring his right in the property as any such sale or mortgage is, of course, subject to rights of other co-sharers which are to be determined at the lime of final partition. The view taken by the Courts below is contrary to the decision of this Court in Bhartu Versus Ram Samp. 1981 P.L.J. 205 (F.B.)

I have gone through the judgments of the Courts below as well as other evidence on record and am of the view that the appeal deserves to be allowed on the short ground that in view of Full Bench decision of this Court a co-sharer is well within his right in sell a specific portion of land out of joint khewat thought of course such sale shall be deemed to be sale of share out of the joint land. The precise point which was considered by the Full Bench in Bhartu''s case (supra) was, "whether the sale of a specific portion of land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale out of the joint land and preemptible u/s 15(1)(b) of the Punjab Pre-emption Act?". The Court relying upon the earlier decision of this Court in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, (Division Bench) relating to inter se rights and liabilities of the co-sharers as well as other decisions referred to in this judgment finally came to the conclusion that sale of even a specific portion out of the joint land by a co-sharer shall be deemed to be sale of a share out of joint land. This being the position, no injunction could be issued by the Court restraining the appellant from alienating the property till such time the land is partitioned. Accordingly, I accept the appeal, set aside the judgment and decree of the Courts below. However, it is made clear that any such sale made by the appellant even of any specific portion of the joint khewat shall, of course be considered to be a share out of the joint land thereby conferring no special rights upon the purchaser at the time of actual partitioning of the holding.