Amarjit Singh vs Jagdev Singh And Ors
2022 Latest Caselaw 1763 P&H

                                   235
                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                              AT CHANDIGARH

                                                                                           CR-5585-2017 (O&M)
                                                                                     Date of decision : 17.03.2022


                                   Amarjit Singh                                                    ... Petitioner(s)
                                                                         Versus
                                   Jagdev Singh and Others                                        ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                                   Present :       Mr. Sherry K. Singla, Advocate for the petitioner.

                                                   Mr. J.S. Maanipur, Advocate for respondent No.1.

                                   ALKA SARIN, J. (ORAL)

Heard in virtual mode.

The present revision petition has been filed under Article 227 of

the Constitution of India challenging the impugned order dated 21.07.2017

(Annexure P-3) passed by the Civil Judge (Senior Division), Bathinda vide

which the warrants of possession of the suit property have been ordered in

the execution application under Order 21 Rule 11 of the Code of Civil

Procedure, 1908 filed by the respondent No.1-decree holder.

Learned counsel for the petitioner-judgement debtor would

contend that the suit property is joint property and the total un-partitioned

land holding of the petitioner is 116 kanals 13 marlas and out of the said

land holding the sale deed has been executed qua 65 kanals 8 marlas.

Learned counsel for the petitioner-judgement debtor would further contend

that in the execution proceedings the sale deed has been executed as also

symbolic possession has been handed over. However, actual physical

possession could not have been ordered to be handed over inasmuch as YOGESH SHARMA 2022.03.18 08:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh CR-5585-2017 (O&M) -2-

partition of the property has yet to take place. In support of his arguments,

learned counsel for the petitioner-judgement debtor has relied upon the

judgments of this Court in the cases of "Tarachand & Anr. Vs. Ramnath

& Anr." [2011 (52) RCR (Civil) 794], "Baldev Singh (deceased) through

LRs Vs. Harbhajan Singh & Ors." [2015 (3) RCR (Civil) 59] and

"Harjinder Singh (deceased) reptd by LRs Vs. Ravinder Kumar" [1996

(1) RRR 463].

Per contra, learned counsel for respondent No.1-decree holder

has contended that the respondent-decree holder has paid the entire sale

consideration and the sale deed has also been executed in his favour.

Learned counsel for respondent No.1-decree holder would further contend

that the agreement to sell pertains to the year 2007 and the respondent-

decree holder would not be able to reap the fruits of his decree in case the

physical possession is not handed over to him.

Heard.

It is trite that a co-sharer in possession of any specific portion

of the land can sell his share qua the said specific portion to the vendee,

however, the same would be considered as a sale of share out of the joint

land.

In the present case, the sale deed has been executed in favour of

the respondent No.1-decree holder and symbolic possession has also been

given. However, the impugned order dated 21.07.2017 directing issuance of

warrants of possession to the respondent No.1-decree holder has been

impugned. The argument raised by learned counsel for the petitioner-

judgement debtor that the respondent No.1-decree holder is entitled to get YOGESH SHARMA 2022.03.18 08:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh CR-5585-2017 (O&M) -3-

only symbolic possession to the extent of a share, and that actual physical

possession can be handed over only once he applies for partition is

meritorious.

In the case of Tarachand & Anr. (supra), this Court has held

as under :

"8. I have carefully considered the rival contentions. There is not even an iota of material on record to depict that any partition of joint land had taken place among the three brothers i.e Appellants and Respondent No. 2.

The objectors/Appellants pleaded that they are in possession of the suit land along with other joint land to the extent of their 2/3rd share. This plea by no stretch would mean that any partition had taken place. The objectors claimed their 2/3rd share in the joint land. It is categorical plea of the objectors that the joint land had not yet been partitioned and all the three brothers i.e Appellants and Respondent No. 2 are joint owners in joint possession of the entire joint land including the suit land. Appellants were neither party to the impugned agreement nor were they party to the decree passed in the suit filed by Respondent No. 1 against Respondent No. 2. Consequently, Appellants are not bound by the impugned agreement or by the decree passed on the basis thereof. When Respondent No. 2-JD himself was not in the exclusive possession of the suit land, the question of delivering actual physical possession thereof to Respondent No. 1-DH in execution of the decree would not arise as it would violate the rights of the Appellants, who are co sharers in joint possession of the suit land and other land. Even jamabandi for 1998-99 YOGESH SHARMA 2022.03.18 08:00 reveals that all the three brothers i.e Appellants and I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh CR-5585-2017 (O&M) -4-

Respondent No. 2 are joint owners in joint possession of the suit land and other joint land.

9. Even according to DH (Respondent No. 1), the JD (Respondent No. 2) agreed to sell 8 kanals land of killa No. 36//18 being 160/2411 share of 120 kanals 11 marlas land, depicting that the said land is still joint land and the DH by purchasing share to the extent of 8 kanals land has become co sharer in the total joint land to that extent.

10. For the reasons aforesaid, I find that in execution of decree, Respondent No. 1-DH is not entitled to get actual physical possession of the suit land measuring 8 kanals. Approach of the Courts below in dismissing the objections of the Appellants herein is patently perverse, illegal and unsustainable. On the contrary, Respondent No. 1-DH is entitled to only symbolic possession to the extent of share measuring 8 kanals out of the share of Respondent No. 2-JD in the total joint land. Accordingly, impugned orders of the Courts below are set aside. Objections filed by the Appellants are allowed. Respondent No. 1-DH shall be delivered only symbolic possession as co sharer to the extent of 8 kanals land in the joint land out of the share of Respondent No. 2-JD."

The law qua the sale of a specific portion of un-partitioned land

is no longer res integra. A Full Bench of this Court in the case of "Bhartu

Vs. Ram Sarup" [1981 PLJ 204] has held that a sale of a specific portion

of land described by particular khasra numbers by the co-owner out of the

joint khewat would be considered as a sale of share out of the joint land. The

YOGESH SHARMA said decision has been reiterated in a plethora of judgments. 2022.03.18 08:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh CR-5585-2017 (O&M) -5-

Keeping in view the settled law, the impugned order dated

21.07.2017 (Annexure P-3) is set aside. The respondent No.1-decree holder

would not be entitled to get actual physical possession of the suit land in the

present execution application. However, it shall always be open to the

respondent No.1-decree holder to apply for partition as well as to pursue his

claim for mesne profits in accordance with law.

Disposed off accordingly. Pending applications, if any, also

stand disposed off.

                                                                                 ( ALKA SARIN )
                                   17.03.2022                                         JUDGE
                                   Yogesh Sharma

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

YOGESH SHARMA 2022.03.18 08:00 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh