MALKIAT SINGH Vs. SHER SINGH

JUDGEMENT

(1.) THREE co -plaintiffs are in appeal against the judgment and decree of the learned Additional District Judge, Sangrur dated November 17, 2008 dismissing the appeal. The judgment and decree passed by the learned Additional Civil Judge (Senior Division) Sunam dated November 26, 1999 has been affirmed. Having lost in both the courts below, the plaintiffs are dissatisfied with the orders.

(2.) THE plaintiffs brought a lawsuit for declaration to the effect that they are owners in possession in equal shares of agricultural land measuring 6 kanals in village Dirba Tehsil, Sunan on the basis of a registered sale deed dated May 28, 1984 as reflected in the ownership column of the Jamabandi for the year 1990 -91. The second prayer was for declaration to the effect that the instrument of partition (Sanad Takseem) dated April 30, 1993 passed by the Revenue Court in partition application dated March 12, 1991 filed before the Assistant Collector, 1st Grade -cum -Tehsildar, Sunam finalized in case titled Mukhtiare vs. Gurcharan Kaur and others with respect to 124 kanals 5 marlas of land as described in the suit was null and void, not enforceable against them, was non est and ineffective against the rights of the plaintiffs and, therefore, it was liable to be set aside under by resort to Section 34 of the Specific Relief Act, 1963 which prescribes the contours of exercise of discretion of court as to declaration of status or right of a legal character as against any person denying, or interested in denying, his title to such character, and the plaintiff, need not in such suit may ask for any other further relief provided where plaintiff able to seek further relief than a mere declaration of title, omits to do so.

(3.) IT was urged sequitur that the mutation sanctioned on the basis of a void instrument of partition was also illegal. The prayer was made that their peaceful possession under the sale deed be not disturbed and the plaintiffs be not dispossessed at the hands of the defendants who were their co -sharers. The plaintiffs are non -family members having entered upon the suit land through sale deed/s and claim right to land from a co -sharer who was a member of the family and sold his land to them. Their rights are thus restricted to the share purchased but with no right in specific khasra numbers and thus they cannot claim exclusive possession of the suit property. It is a trite law that even where exclusive possession is claimed by stepping into the shoes of a co -sharer by virtue of transfer of property, the vendee becomes just another co -sharer and cannot enforce specific khasra numbers for permanent settlement at a particular place against the wishes of other co -sharers who have rights equal to their respective shares in joint ownership. Vendees' claim can only be for actual possession through partition proceedings.