Punjab-Haryana High Court
Darshan Kumar vs Darshan Singh And Ors on 28 November, 2018
Author: Amit Rawal
Bench: Amit Rawal
CR No.2584 of 2013 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CR No.2584 of 2013 (O&M)
Date of decision:28.11.2018
Darshan Kumar ... Petitioner
Vs.
Darshan Singh and others ... Respondents
CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- None for the petitioner.
Mr. Manav Bajaj, Advocate for Mr. Pawan Girdhar, Advocate for the respondents.
AMIT RAWAL J.
The present revision petition is directed against the impugned judgment and decree dated 12.02.2013 (Annexure P-1) passed by the Additional District Judge, Sri Muktsar Sahib and order dated 23.12.2011 (Annexure P-2) passed by the Additional Civil Judge (Senior Division), Sri Muktsar Sahib.
The judgment and decree dated 04.04.2006 was passed in favour of the petitioner-plaintiff, whereby, respondent no.1 was directed to execute the sale deed of the suit land as per the terms and conditions of the agreement to sell dated 05.09.1998. The aforementioned judgment and decree is stated to have attained the finality.
1 of 4
::: Downloaded on - 01-01-2019 01:01:12 :::
CR No.2584 of 2013 (O&M) {2}
Since respondent no.1 did not comply with the directions of the trial Court as per the judgment and decree, an execution application was filed in which JD has filed the objections by objecting that he was not in possession of the entire land measuring 37 kanals 3 marlas and therefore, the decree had become un-executable. Even the appeal against the judgment and decree of the trial Court, is pending adjudication.
The petitioner contested the aforementioned objections on the premise that numbers mentioned in the judgment and decree were as per the terms and conditions of the agreement to sell and therefore, sale deed qua his share can always be executed and prayed for dismissal of the objections. The objections were allowed, vide order dated 23.12.2011 and appeal was also dismissed.
It has been stated in the revision petition that the land measuring 37 kanals 3 marlas referred to musteel no.28 killa no.16/2(-6), 17 (8-0) 24(8-0) 25(7-1) musteel no.46 killa number 15/2(5-8) 16/1(5-8). The Courts below have rendered the finding on the point that respondent no.1 was a co-sharer in the suit land to the extent of 77/262 share which was equivalent to 37 kanals 3 marlas and even if, he was not in possession of khasra number, symbolic possession could have been ordered. In such circumstances, ratio decidendi culled out by the Full Bench of this Court in Bhartu vs. Ram Sarup 1981 PLJ 204, wherein it has been held that co- sharer is always competent to alienate his share, is squarely applicable. The transferee can always get the right of ownership from the transferor to 2 of 4 ::: Downloaded on - 01-01-2019 01:01:12 ::: CR No.2584 of 2013 (O&M) {3} enforce the partition.
Per contra, Mr. Manav Bajaj, Advocate for Mr. Pawan Girdhar, learned counsel for the respondents submitted that simpliciter suit for possession is not only for specific performance of the agreement to sell but for possession also as possession of all the co-sharers is joint. The specific possession in the absence of partition, amongst the co-sharer cannot be granted but the Court below has granted liberty to the petitioner to get the numbers corrected and file the execution application thereafter, therefore, no harm and prejudice would have been caused.
I have heard the learned counsel for the respondents and appraised the paper book.
The judgment and decree dated 04.04.2006 is not only for execution of the sale deed but also for handing over the possession. Concededly, respondent no.1 is also a share-holder of land measuring 37 kanals 3 marlas referred to musteel no.28 killa no.16/2(-6), 17(8-0) 24(8-0) 25(7-1) musteel no.46 killa number 15/2(5-8) 16/1(5-8) alongwith other co- sharers. The sale deed, thus, in such circumstances, was required to be corrected only by conveying the title in favour of the decree-holder to the extent of his share but the possession cannot be granted in the absence of partition. This is what has been held by the trial Court in the impugned order. The operative part of the order dated 23.12.2011 reads thus:-
"Hence the objections are sustainable. The draft sale deed be corrected and during the partition the D.H can seek the specific possession by arraying the other co-sharers a party as
3 of 4 ::: Downloaded on - 01-01-2019 01:01:12 ::: CR No.2584 of 2013 (O&M) {4} well. The objections in terms of the order are allowed. The execution application stands disposed of with liberty to the D.H to file corrected draft sale deed at the appropriate time. File be consigned."
The plaintiff has not been able to controvert the aforementioned pleadings by placing on record any cogent material to the story coined in the objections is alien to the revenue record. Even otherwise, the petitioner- plaintiff/decree holder has not been deprived of the ownership of the land. The sale deed is confined only to the extent of 77/262 share and after partition, liberty has been granted to take the possession.
No fault can be found with the aforementioned impugned judgment and decree as well as order.
Resultantly, the revision petition stands dismissed.
(AMIT RAWAL)
JUDGE
November 28, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
4 of 4
::: Downloaded on - 01-01-2019 01:01:12 :::