Smt. Sarabjit Kaur and Another vs Natha Singh and Others

Hemant Gupta, J.—The plaintiffs are in revision petition aggrieved against the order passed by the Courts below whereby the Courts below have dismissed the application filed by the plaintiffs for restraining the defendants from forcibly dispossessing the plaintiffs.

It is the case of the plaintiffs that Parsin Kaur, defendant No. 2 has executed a sale deed on 10.12.2004 in favour of defendant No. 1 Natha Singh in respect of her 1/8th share in the suit property. It is alleged that the defendants want to forcibly dispossess the plaintiffs from the land jointly owned by the parties although the plaintiffs are in possession as a co-sharer of the suit land.

Learned Trial Court found that Surjeet Singh, whose estate defendant No. 2 inherited and was sold in favour of defendant No. 1 was not in exclusive possession of any portion of the suit property as is apparent from the copy of the Jamabandi for the year 1999-2000. It was found that since Parsin Kaur has sold her share, therefore, defendant No. 1 has also come into joint possession along with other co-sharers. Learned first Appellate Court has dismissed the appeal finding no merit in the same.

Learned counsel for the petitioners has relied upon Bachan Singh v. Swaran Singh (2000)126 P.L.R. 916, a Division Bench judgment of this Court to contend that a co-sharer who is not in exclusive possession of any portion of the property cannot deliver actual physical possession to his vendee. Since a finding has been recorded by the learned Trial Court that Surjit Singh, the predecessor-in-interest of defendant No. 2 whose property has been sold was not in exclusive possession of the suit property, therefore, defendant No. 1 the vendee cannot forcible dispossess the plaintiffs on the basis of sale in his favour. In view thereof, the orders of the courts below are suffering from patent illegality and material irregularity which cannot be permitted to stand. Thus, the orders passed by the Courts below are set aside while allowing the revision. The defendants are restrained from dispossessing the petitioners except in due process of law i.e. after seeking partition of joint land.

Civil revision is allowed in the above terms