AJIT SINGH Vs. KARAM SINGH

JUDGEMENT

(1.) THE defendants are in second appeal aggrieved by the judgment and decree passed by the Courts below whereby a decree for declaration was granted in favour of the plaintiff to the effect that the plaintiff is the owner in possession of land measuring 26 kanals 8 marlas and that defendant Nos. 1 to 2(C) were restrained from getting the auction sale confirmed and from taking actual or constructive possession.

(2.) ONE Kishan Singh and defendant No. 10 Balwant Singh alias Banta Singh were the owners of land measuring 545 kanals 6 marlas to the extent of 1/2 share each. Kishan Singh on 18.3.1955 raised Takavi loan from the State Government and pledged/mortgaged specific Khasra Numbers in favour of the State Government. After his death, his sons Ajit Singh and Dial Singh as well an Balwant Singh alias Banta Singh executed three separate sale deeds in the sum of Rs. 1,500/- each as Exhibits P-2, P-3 and P-4 on 31.3.1963 to one Mukhtiar Singh. Sale deed Exhibit P-2 contains a recital that there is a loan of the State Government outstanding against KIshan Singh. On 23.4.1963, Ajit Singh and Dial Singh sons of Kishan Singh executed another sale deed Exhibit P-5 in the sum of Rs. 1,500/- in favour of Mukhtiar Singh in respect of 8 kanals of land. On 9.12.1969, Mukhtiar Singh has sold land measuring 26 kanals 8 marlas to Karam Singh, Balkar Singh and Ram Singh in the sum of Rs. 10,000/- vide sale deed Exhibit P-1. It has also come on record that on 12.2.1971, 6/14th share of Kishan Singh was put to public auction for realisation of the loan along with interest amounting to Rs. 12,281.81. The said 6/14th share of land measuring 81 kanals 4 marlas was purchased by Ajit Singh, Karam Singh, Charan Singh, Chanan Singh sons of Chattar Singh, the present appellants. Another 1/4th share of Ajit Singh measuring 17 kanals 5 marlas was put to public auction on the same date in the sum of Rs. 15,000/- to recover the arrears of loan amount amounting to Rs. 7,854.03. It may be noticed that Karam Singh, the present plaintiff, filed objections to the said public auction before the Commissioner as contemplated under Section 91 of the Punjab Land Revenue Act. Such objections were dismissed by the Commissioner on 17.12.1975 and the sale certificate issued in favour of the present appellants on 7.12.1986.

(3.) THE learned counsel for the appellants has argued that the sale of land pledged/mortgaged by Kishan Singh in favour of the State Government on 18.3.1955 as well as subsequent sale by his sons Ajit Singh and Dial Singh along with other co-sharer Balwant Singh alias Banta Singh though may be sale of a specific Khasra No. but, in fact, sale is of share of the total land. The parties are entitled to actual physical possession after partition of the land and, therefore, the plaintiff is not entitled to the declaration sought for. As a matter of fact, out of more than 272 kanals of land falling to the share of Kishan Singh, sale by two of the legal heirs of Kishan Singh, namely, Ajit Singh and Dial Singh, along with the sale of share by Balwant Singh in favour of Mukhtiar Singh and subsequent sale by public auction are the sales of the share of the land even though specific Khasra Nos. are mentioned in each or all of the sale deeds. Learned counsel for the appellants have vehemently placed reliance on Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 PLJ 204 as well as decision of the Supreme Court in the case of Mange Ram and others v. Ram Chander, 2002(3) RCR (Civil) 303 (SC) : 2001(1) PLJ 441.