JAI SINGH & ORS.versusGURMEJ SINGH

                                 [2009) 1 S.C.R. 413


                                JAi SINGH & ORS.                                A
                                          II.
                                  GURMEJ SINGH
                          (Civil Appeal No. 321 of 2009)
                                JANUARY 20, 2009
                                                                                8
•
              [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                             SHARMA, JJ.]

                  Punjab Pre-emption Act, 1913- s.15(1)(b)- Pre-emption
          - Sale of specific portion of land out of joint holding by one        c
          of the co-owners-vendor to vendee, if pre-empitible - Held:
           Is pre-emptible uls. 15(1)(b) - It is a sale of a share out of the
          joint holding - Co-sharer puts vendee into possession of land
          in his possession - He transfers his right as a co-sharer in
    -j
          the said land and right to remain in the exclusive possession         D
           till joint holding is partitioned amongst all co-sharers.
              Sale - Joint property- lnter-se rights and liabilities of co-
          sharers - Governing principles - Explained.
                The question which arose for consideration in this              E
           appeal was whether High Court was right in holding that
           when there is sale of a specific portion of a land described
           by particular Khasra numbers by a co-owner out of the
           joint khewat, the vendees become co-owners with other
           co-sharers in the joint land and in the event of their               F
         . becoming co-owners, the sale is pre-emptible under
           section 15(1)(b) of Punjab Pre-emption Act, 1913.

               P;lsmissing the appeal, the Court

               HELD: 1.1. The principles relating to the inter-se               G
     t    rights and liabilities of co-sharers are as follows: (I) 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
                                         413                                    H
   414       SUPREME COURT REPORTS ·           (2009] 1 S.C.R.


A 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
B 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 to the knowledge
  of the other as, when a co-owner openly asserts his own
c 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)
0
  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
E partition. [Para 7) [419-A-H]
       1.2. 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
F 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
G right as a 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. [Para 8) [420-A-C]

       1.3. Sale of subsequent portion of the land out of the
H joint holding by one of the co-owners is nothing but a
         JAi SINGH & ORS. v. GURMEJ SINGH                 415


sale of a share out of the joint holding and is pre-emptible     A
under Section 15 (1) (b) of the Punjab Pre-emption Act,
1913. [Para 9) [420-0)

    Bhartu v. Ram Sarup 1981 P.L.J. 204, approved. ·

     Pokhar (dead) by Lrs. and Ors. v. Ram Singh Civil           8
Appeal No. 4418 of 1986 disposed of by SC on August
14, 2001, relied on.

    Lachhman Singh. v. Pritam Chand AIR 1970 P & H 304,
referred to.                                                     C

                      Case Law Reference:
    AIR 1970 P & H 304        Referred to.         Para 3

    1981 P.L.J. 204           Approved             Para 9
                                                                 D
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 321
of 2009.      '                                         .....

     From the Judgment dated 10.11.2006 of the High Court
of Punjab and Haryana at Chandigarh in Civil Regular Second      E
Appeal No. 3125 of 1994.

    Vijay K. Mehta for the Appellants.

    Neeraj Kumar Jain, Sanjay Singh, Umang Shankar and
Ugra Shankar Prasad for the Respondent.                          F

    The Judgment of the Court was delivered by

    DR. ARIJIT PASAYAT, J, 1. Leave granted.

     2. Challenge in this appeal is to the order passed by a     G
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        H
    416        SUPREME COURT REPORTS                 [2009] 1 S.C.R.


A  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-
B 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
C marlas vide registered sale deed dated 11.4.1990 to the
  appellants fo1 ··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
D 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
E 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 framed. But only two issues
  were contested before the trial Court which are to the following
  effect:
F        (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?
G
       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
H learned District Judge, Kurukshetra, did not bring any relief.
                   JAi SINGH & ORS. v. GURMEJ SINGH                    417
                          [DR. ARIJIT PASAYAT, J.]

     •        Stand of the appellants before the High Court was that the A
         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 B
         as a specified part of joint land the vendees do not become
         co-sharers the sale 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 cif pre-emption with regard to sale of c
         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).


-   "1
             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.
                                                                              D


               The High Court noted that the latter decision had taken into
         consideration Lachhman Singh's case (supra) and observed
         th.at the question involved in Lachhman Singh's case was as          E
         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              F
         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.

             The High Court observed that the principles laid down in
         Lachhman Singh's case (supra) had no direct bearing on the           G
         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       H
    418        SUPREME COURT REPORTS                 (2009) 1 S.C.R.


A 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
B 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.
c 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
0
  nowhere mentioned in the 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-
E 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,
F 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)
G has full application to the facts of the case.

       5. In response, learned counsel for the respondent
   supported the judgment of the High Court.
     6. It is to be noted that the subsequent Full Bench judgment
H in Bhartu's case (supra) the earlier decision in
                        JAi SINGH & ORS. v. GURMEJ SINGH                        419
                               [DR. ARIJIT PASAYAT, J.]
              Lachhman Singh's case (supra) was distinguished on facts.                A

-                  7. The principles relating to the inter-se rights and liabilities
              of co-sharers are as follows:

                   (I) A co-owner has an interest in the whole property and
                   also in every parcel of it.                                         B

                   (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
                                                                                       c
 •                 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             D
        ~

                   ouster of a co-owner by another. But in order to negative
                   the presumption of joint possession on behalf of all, o.n the
                   ground of ouster, the possession of a co-owner must not
                   only be exclusive but also hostile to the knowledge of the
                   otner as, when a co-owner openly asserts his own title and          E
                   denies, that of the other.
 '
-I
                   (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.              F
                   (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.

-I                (7) Where a co-owner is in possession of separate parcels            G
                  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.
                                                                                       H
    420       SUPREME COURT REPORTS                 [2009) 1 $.C.R.


A        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 'dontinue
  in its possession if it is not more than his share till the joint
  holding is partitioned. Vendor cannot sell any property with
B 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 co-sharer in
  the said land and the right to remain in its exclusive possession
c 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
                                                                         ....
D 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
E appeal which is dismissed accordingly.

    N.J.                                         Appeal dismissed.