HARBHAJAN SINGH Vs. KARNAIL SINGH

JUDGEMENT

(1.) The plaintiff-appellant filed this suit for permanent injunction restraining the defendant-respondents from interfering in his possession and from alienating the land comprised in Khasra No. 267 measuring 3 Kanals 15 Marlas on the ground that his father Munshi Ram was the owner of land measuring 306 Kanals 11 Marlas and that the plaintiff has remained in possession of the Khasra number in dispute since his father's death and was still in possession. The defendant-respondents were allegedly intending to take forcible possession and to transfer the land in dispute. The defendant-respondents contested the suit and denied the allegations made by the plaintiff-appellant in his plaint. On the pleadings of the parties the following issues were framed :-

(2.) Learned counsel for the parties have been heard and I have gone through the documents and the oral statements of the witnesses produced by them. Bikramjit Singh P.W.1 has stated that his house was at a distance of one killa from the suit property area of which was 3 Kanals 15 Marlas and it was in possession of the appellant for the last 18-20 years eversince consolidation of holdings and he has been using the same as roori and tethers his cattle there apart from placing dung-cakes etc. In cross-examination he admitted that Ghani Mohd. has built a house in Khasra No. 267 and defendant-respondents had also sold some land. Similarly Mal Singh P.W. 2 after supporting the case of the plaintiff-appellant admitted the sale by defendant-respondent in favour of Ghani Mohd. and Bachittar Singh of some part of the property in dispute. Harbhajan Singh plaintiff-appellant as P.W.3 supported his own case and in cross-examination admitted that some land out of Khasra No. 267 had been sold to Ghani Mohd. Copy of Jamabandi Exhibit P.1 and copy of Khasra Girdawari Exhibit P.2 were tendered in evidence by the plaintiff. Defendant-respondents examined Ghani Mohd. D.W.1 who supported the possession of the defendants over the suit land and denied the possession of the plaintiff. He, of course, admitted the sale of some portion of Khasra number in dispute in his favour. Harchand Singh D.W.2 supported the case of the defendants and Jarnail Singh D.W.3 is the defendant himself. Copy of Jamabandi Exhibit P.2 (it looks to have been wrongly exhibited as Exhibit P.2 because Exhibit P.2 is copy of Khasra Girdawari from the years 1972 to 1975) is at page 17 of the file and it shows that in the joint Khata Munshi Ram had one-half share and the remaining one-half was owned by Karnail Singh and Nand Kaur to the extent of one-third share whereas Darshan Singh has one-third share and Jarnail Singh and Gurdial Kaur the remaining one-third share. After the death of Munshi Ram, his share was inherited by Harbhajan Singh plaintiff-appellant. Red note given on Exhibit P.2 shows that Darshan Singh and Jarnail Singh sold 10 Marlas of land out of Khasra No. 267 to Ghani Mohd. and 7 Marlas out of this khasra number to one Bachittar Singh. Khasra Girdawari which is again exhibited as P.2 shows that all the co-sharers remained in joint possession of Khasra number in dispute and it was for Kharif 1975 that 10 Marlas of land out of this Khasra number was shown to be in possession of Ghani Mohd. and the remaining land measuring 3 Kanals 5 Marlas remained in joint possession of the parties. Darshan Singh had one-third share out of one-half and Jarnail Singh had one-sixth share thereof, thus calculating Darshan Singh having 12 Marlas of land in Khasra number 267 and Jarnail Singh about 6 Marlas of land and both of them have sold away 17 Marlas out of this Khasra number, i.e. 1 Marla less than their share. Excluding the 17 Marlas sold by Darshan Singh and Jarnail Singh to Ghani Mohd. and Bachittar Singh, the defendant-respondents remained co-sharers to the extent of about 1 Kanal only in the Khasra number in dispute. The first appellate Court while giving a finding that Khasra No. 267 was in possession of co-sharers other than Harbhajan Singh has relied upon copy of Jamabandi, which does not support this finding at all. Merely because defendant-respondents had sold 17 Marlas out of this Khasra number it cannot be concluded that the defendant-respondents are in possession of the whole of the Khasra number in dispute.

(3.) Since none of the parties is proved to be in exclusive possession of the land, any transfer by defendant-respondents beyond their share has to be restrained. The principle that a co-sharer can transfer a portion of the joint land in his exclusive possession will not apply. Rather sale of the a portion of the joint land exceeding the share of the vendor co-sharer can complicate the matter further and may lead to further litigation.