REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.             321        OF 2009 (Arising out of SLP (C) No. 5414 of 2007)

Jai Singh and Ors.         ….Appellants

Versus

Gurmej Singh ….Respondent

J U D G M E N T

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is  to the order passed by a learned Single

Judge  of  the  Punjab  and  Haryana  High  Court  dismissing  Second  appeal

filed  by  the  appellant  in  terms  of  Section  100  of  the  Code  of  Civil

Procedure, 1908 (in short the ‘CPC’). The basic question considered by the

High Court was whether sale of a specific portion of a land described by

particular Khasra numbers by a co-owner out of the joint khewat would be a

sale  of  shares  out  of  the  joint  land  or  whether  the  vendees  become co-

owners  with  other  co-sharers  in  the  joint  land,  in  the  event  of  their

becoming  co-owners,  the  sale  is  pre-emptible  under  Section  15(1)(b)  of

Punjab Pre-emption Act, 1913 (in short the ‘Act’).  

3. Background facts essentially are as follows:

Vendor (Bhartu) sold  the land measuring 20 kanals, being 400/3723

share out of the total land measuring 186 kanals 3 marlas vide registered

sale  deed  dated  11.4.1990  to  the  appellants  for  a  consideration  of

Rs.1,80,000/-. Gurmej Singh-respondent filed a suit for possession by way

of pre-emption, wherein it was pleaded that the vendor had sold the land

measuring 20 kanals out of the joint Khewat. According to him being the

co-sharer he has a right to pre-empt the sale under Section 15(1)(b) of the

Act. The said suit was contested by the vendees stating that the pre-emptor

had no superior right of pre-emption. Firstly, the Khewat containing the suit

land had been partitioned between various co-sharers much prior to the sale

through an oral partition, and secondly the sale was out of the defined share

of the vendor. On the basis of the pleading of the parties various issues were

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framed. But only two issues were contested before the trial Court which are

to the following effect:  

(1) Whether  plaintiff  has  superior  right  to  pre-empt  the  land  in

dispute being co-sharer?

(2) Whether  plaintiff  is  estopped  from filing  present  suit  by his

own act and conduct?  

On both the issues the trial Court returned its findings in favour of the

pre-emptor holding that he had a superior right of pre-emption and that he

was not guilty of any such act which could stop him for pre-empting the

same. Appeal before learned District Judge, Kurukshetra, did not bring any

relief.

Stand of the appellants before the High Court was that the sale deed

Ext.P-4 clearly indicated that specific Khasra numbers had been sold by the

vendor and defined portion of the joint land has been sold and the vendees

have  been  put  into  possession  of  the  specific  khasra  numbers.  The

appellants who are vendees argued that where a co-sharer sells his share as a

specified part of joint land the vendees do  not become co-sharers the sale

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being not a share out of the joint land. It was, therefore, submitted that the

plaintiff respondent does not become a co-sharer in the property in dispute

and as such has no preferential right of pre-emption with regard to sale of

specific part  of the vendor’s share. Reliance was placed on a decision of

Full  Bench of the High Court in  Lachhman Singh v.  Pritam Chand (AIR

1970 P & H 304).  

On the other hand respondent relied on a later Full Bench judgment

of the High Court in Bhartu v. Ram Sarup (1981 P.L.J. 204) to support the

view of the lower courts.  

The  High  Court  noted   that  the  latter  decision  had  taken  into

consideration Lachhman Singh’s case (supra) and observed that the question

involved in Lachhman Singh’s case was as to whether the purchaser of a

specific portion of some Killa numbers in two rectangles would become a

co-sharer in the Khewat consisting of several other rectangles and would be

entitled to pre-empt the sale out of the rectangles other than in which he

became owner by the said purchase and on these facts it was held  that such

a purchaser does not become a co-sharer in the Khewat and, therefore, has

no right to pre-empt the sale.  

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The High Court observed that the principles laid down in Lachhman

Singh’s case (supra) had no direct bearing on the question  whether the sale

of a specific khasra number out of a khewat would be a sale of  a share out

of the joint land or not. According to the High Court, answer to the above

question depends on inter-se rights of the co-sharers in the joint khewat and

the  nature  of  the  sale  of  a  specified  portion  of  the  joint  holding.

Accordingly, the High Court held that when a co-sharer sells his share in the

joint holding or in part thereof and put the vendees into possession of the

land in his possession what he transfers is his right as co-sharer in the said

land and the right  would remain in his exclusive possession till  the joint

holding  is  partitioned  amongst  all  the co-sharers.  The transferee  gets  the

same right as that of a transferor to joint possession and has further right to

enforce  the  partition  of  the  same  irrespective  of  the  fact  whether  the

property  sold  is  fractional  share  or  specified  portion  exclusively  in

possession of the transferor. After referring to the sale deed the High Court

noticed  that  the  vendor  had  sold  the  land  of  his  share  of  400/3723

measuring 20 kanals out of the total land. It was mentioned in the sale deed

that the possession of the land comprised in the specified khasra numbers

was delivered to the vendees. However, it  was nowhere mentioned in the

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sale deed that the land was ever partitioned or was out of the defined part of

the land.  On the  contrary,  it  was  clearly  mentioned that  the vendor  was

selling his 400/3723 share out of the total holding.  The High Court turned

down the plea based on repeal of the right of a co-sharer by the Amending

Act of 1995. It was observed that right of co-sharers has been held to be

prospective in operation and does not affect the right of the parties to the

litigation  on  the  date  of  adjudication  of  the  pre-emption  suit  and  the

Appellate Court  is not required to take into account or give effect to the

substituted  Section  15  introduced  by  the  Amending  Act.  Accordingly,

Second Appeal was dismissed.  

4. Learned counsel for the appellants re-iterated the stand taken before

the High court and submitted that the ratio of the decision of the Full Bench

in  Lachhman Singh’s case (supra) has full  application to the facts of the

case.

5. In  response,  learned  counsel  for  the  respondent  supported  the

judgment of the High Court.  

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6. It is to be noted that the subsequent Full Bench judgment in Bhartu’s

case  (supra)  the  earlier  decision  in  Lachhman  Singh’s case  (supra)  was

distinguished on facts.   

7. The  principles  relating  to  the  inter-se  rights  and  liabilities  of  co-

sharers are as follows:  

(l) A co-owner has an interest in the whole property and also in every

parcel of it.

(2) Possession of joint property by one co-owner is in the eye of law,

possession of all even if all but one are actually out of possession.

(3) A mere occupation of a larger portion or even of an entire joint

property does not necessarily amount to ouster as the possession of

one is deemed to be on behalf of all.

(4) The above rule admits of an exception when there is ouster of a

co-owner  by another.  But  in  order  to  negative  the  presumption  of

joint  possession  on  behalf  of  all,  on  the  ground  of  ouster,  the

possession of a co-owner must not only be exclusive but also hostile

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to the knowledge of the other as, when a co-owner openly asserts his

own title and denies, that of the other.

(5) Passage of time does not extinguish the right of the co-owner who

has been out of possession of the joint property except in the event of

ouster or abandonment.

(6) Every co-owner has a right to use the joint property in a husband

like manner not inconsistent with similar rights of other co-owners.

(7) Where a co-owner is in possession of separate parcels under an

arrangement consented by the other co-owners, it is not open to any

body to disturb the arrangement without the consent of others except

by filing a suit for partition.

8. It is thus evident that when a co-sharer is in exclusive possession of

some portion of the joint holding he is in possession thereof as a co-sharer

and is entitled to continue in its possession if it is not more than his share

till  the joint  holding is partitioned.  Vendor cannot sell  any property with

better rights than himself.  As a necessary corollary when a co-sharer sells

his share in the joint holding or any portion thereof and puts the vendee into

possession of the land in his possession what he transfers is his right as a

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co-sharer in the said land and the right to remain in its exclusive possession

till the joint holding is partitioned amongst all co-sharers.

9. Sale of subsequent portion of the land out of the joint holding by one

of the co-owners is nothing but a sale of a share out of the joint holding and

is pre-emptible under Section 15(1)(b) of the Act. It is to be noted that the

judgment in Bhartu’s case (supra) had the seal of approval of this Court in

Pokhar (dead) by Lrs. and Ors. v.  Ram Singh (Civil  Appeal No. 4418 of

1986 disposed of on August 14, 2001).   

10. Above being the position, we find no merits in this appeal which is

dismissed accordingly.      

………….....................................J. (Dr. ARIJIT PASAYAT)              

         ………….……….........................J.

        (Dr. MUKUNDAKAM SHARMA) New Delhi, January 19, 2009   

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