ROOP SINGH Vs. SHAM SHER SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated May 13, 1993 whereby learned trial Court dismissed the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff seeking amendment of the plaint.

(2.) PLAINTIFF -petitioner filed a suit for specific performance of agreement dated June 4, 1990 executed by Shamsher Singh in respect of land measuring 24 kanals situated in Village Mudki at the rate of Rs. 34,000/- per killa. The land agreed to be sold bore specific khasra numbers. Shamsher Singh having refused to execute the sale deed led the plaintiff to file a suit for specific performance. The plaintiff further prayed that the sale deed executed by Shamsher Singh in favour of Sukhwinder Kaur in respect of land measuring 22 Kanals 14 Marias of specific khasra numbers was null and void and inoperative against the rights of the plaintiff. In the alternative, the plaintiff prayed for the recovery of Rs. 1,02,000/- on account of refund of earnest money and damages.

(3.) ON a consideration of the matter, I am of the view that this revision has no merit. The plaintiff agreed to purchase specific khasra numbers, total measuring 24 Kanals, out of the 110 Kanals. He is entitled to a decree, if at all, for specific performance in terms of agreement to sell. He cannot be granted a 1 decree in respect of l/4th share of unspecified khasra number. In a suit for specific performance the plaintiff is seeking specific performance of agreement to sell and he cannot be permitted to substitute in the agreement, of his own, either different khasra numbers or a share in lieu of specified khasra number. In the situation aforesaid, I am of the view that such a course is not open to the plaintiff and he cannot seek specific performance of 1/4th share in the land owned by Shamsher, Singh in place of specific khasra numbers for which there is an agreement in his favour. Even, otherwise if the plaintiff is permitted to amend the plaint as prayed for, it will amount to granting a decree in favour of the plaintiff for an area which would be more than the one Shamsher Singh agreed to sell to the plaintiff vide agreement to sell dated June 4, 1990. 5. The plaintiff in my view is not going to suffer in case the amendment is declined. A co-sharer can transfer a portion in his possession of the joint holdings. In the event of the plaintiff getting a decree for specific performance of specific khasra numbers, he would get a right to joint possession and therefore, a right to enforce partition irrespective of the fact whether the property sold was a share or specified khasra numbers of the joint holdings. A sale of specific potion of land out of joint holding by a co-sharer is nothing but a sale of share out of the joint holdings. Support for this view is available from the judgment of a Full Bench of this Court in Bhartu v. Ram Sarup,1981 PLJ 204. 6. For the reasons recorded above, the revision fails and is hereby dismissed. The parties through their counsel have been directed to appear in the trial Court on July 27, 1994 for further proceedings. .