1. This is a regular second appeal by the plaintiff and the facts giving rise to it are these. The site in dispute is shown in red, is demarcated by the letters ABCD in the plan annexed to the plaint and forms part of Khasra No. 1039/343/344 lying in the revenue estate of Bodiwala Kharak Singh in Tehsil Muktsar. This Khasra has a total area of 12 biswas and was originally owned by four parties as stated below:
1. Sawan Singh and his sons Ala Singh, Mal Singh, Gurnam Singh, Jaswant Singh and Kulwant Singh. 1/22. Shrimati Chando widow of Kishan Singh. 1/43. Lal Singh defendant No. 2 1/84. Joginder Singh, Mukhtiar Singh and Naib Singh. 1/8
Each one of these parties was in actual possession of a specific portion of the khasra out of which defendant No. 2 transferred his 1/8th share to one Ghulla Singh by a deed of exchange and also delivered to him possession of the site in his (defendant No. 2's) actual occupation. Jaswant Singh defendant No. 1 instituted a suit for possession of the site purchased by Ghulla Singh on the basis of his pre-emptive right and with the assertion that the exchange was really a sale. The suit ended in a decree being passed in favour of defendant No. 1. Gulla Singh went up in appeal and the decree was upheld on the basis of a compromise according to which defendant No. 1 was to pay Rs.500 to Ghulla Singh on or before the 25th of July, 1968. The amount was deposited in court before the due date by defendant No. 1 who took out execution of the decree and sought to recover possession of the site in dispute claiming it to be the site which had been transferred by Lal Singh in favour of Ghulla Singh. He was however, resisted in the execution of the decree by Tek Singh plaintiff whose stand was that he (Tek Singh) was a mortgagee in possession in whose favour Joginder Singh. Mukhtiar Singh and Naib Singh above mentioned had created a mortgage with possession against a consideration of Rs.1,500/-.
An application moved by the plaintiff under Rule 99 of Order 21 of the Code of Civil Procedure was dismissed by the executing Court as being premature so that the plaintiff instituted the suit out of which this appeal has arisen for a perpetual injunction restraining defendant No. 1 from dispossessing him from the site in dispute in execution of the pre-emption decree. It was averred in the plaint that the site in dispute was never in possession of Lal Singh or Ghulla Singh but had on the contrary been in possession of Joginder Singh and his two brothers all three of whom had validly transferred the same to the plaintiff who came to obtain its possession as a mortgagee.
Defendant No. 1 contested the suit and pleaded that although Ghulla Singh had obtained actual possession of the site in dispute from Lal Singh under the exchange which was held to be a sale in the pre-emption suit, he (Ghulla Singh) had colluded with Joginder Singh and others in effecting the mortgage set up by the plaintiff which was really a sham transaction brought into existence merely with a view to defeat the pre-emption decree.
The pleadings of the parties gave rise to the following issues:
1. Whether there was any valid mortgage of the land in dispute in favour of the plaintiff? O. P.
2. Whether the plaintiff, and before him his predecessors-in-interest had been in actual possession of the suit land? O. P.
3. Whether the suit is not competent as the plaintiff had not surrendered possession of the suit land in execution of the decree? O. D.
4. What is the effect of the decree in favour of defendant No. 1 on 25-3-1958? O. D.
The learned trial Judge decided issue No. 1 in favour of the plaintiff and issue No. 3 against defendant No. 1. On issue No. 2 his finding was that the plaintiff had obtained possession of the site in dispute from Joginder Singh, Mukhtiar Singh and Naib Singh who had held the same earlier to the exclusion of their other co-sharers in the said khasra. Issue No. 4 was also decided against defendant No. 1 with the result that the suit of the plaintiff was decreed.
Defendant No. 1 agitated the matter in an appeal which was accepted by Shri Muni lal Verma, Senior Subordinate Judge, Ferozepore, who came to the conclusion that originally Lal Singh was in possession of the site in dispute which was transferred by him to Ghulla Singh to whom possession was also delivered and that it was in order to defeat the pre-emption decree obtained by defendant No. 1 that Ghulla Singh delivered possession of the said site to the plaintiff in whose favour Joginder Singh, Mukhtiar Singh and Naib Singh executed a mortgage deed. He, therefore, reversed the finding arrived at by the trial Court on issue No. 2 holding that Joginder Singh and his brothers were never in possession of the site in dispute and that the plaintiff never occupied the same under the mortgage. The decision on issue No. 4 was also amended by the learned Senior Subordinate Judge who held that as the plaintiff had taken possession of the site in dispute from Ghulla Singh with full knowledge of the pre-emption decree, he could not resist the delivery of possession of the same to defendant No. 1 in execution thereof. Without disturbing the finding arrived at by the trial Court on issue No. 3, therefore, the learned Senior Subordinate Judge accepted the appeal and dismissed the suit with costs throughout. It is against the decree passed by him that the present appeal has been preferred.
2. The first contention of Ch. Roop Chand, learned counsel for the plaintiff-appellant is that the transfer in favour of Ghulla Singh was invalid inasmuch as it was made in contravention of the rights of other co-sharers in khasra No. 1039/343/344. According to him it is not permissible for one co-sharer in separate possession of a parcel of joint land to alienate the same to a third person as his own exclusive property and for this proposition he relies on the following observations made in Jamna v. Jhalli, 55 Ind Cas 94=(AIR 1920 All 111):--
'The plaintiff can only recover possession by proving her exclusive title to the plots in dispute. She cannot do this for her own vendors had no such title. The property is undivided and although the co-sharers may, by arrangement among themselves, take possession of definite portions of the joint property and hold them so as to enjoy their proper quota of the profits of the joint property, it is not permissible for one co-sharer so in separate possession to alienate to a third person as his own exclusive property the portion which he has been occupying by agreement with his co-owners. Till partition takes place no co-sharer is entitled to say that he has an exclusive right to any particular portion of the joint property and to confer an exclusive right on a third party by alienation without the consent of all the co-owners.'
These observations are of no avail to the appellant's case as they relate to a different set of facts. In the case cited the vendee from one of the co-sharers sought to obtain possession of land which was admittedly in possession of the other co-sharer. Here the position is that Lal Singh, one of the co-sharers is found to have been in exclusive possession of the site in dispute all through to the exclusion of the other co-sharers and he had every right to transfer that site to a third person who would acquire a valid title thereto, subject, however, to the right of the other co-sharers to have their respective shares assured to them on a partition. Ch. Roop Chand contends that 55 Ind Cas 94=(AIR 1920 All 111) (Supra) lays down a proposition to the contrary and holds that no co-sharer can pass a valid title to a transferee from him of a specific plot till a partition has taken place. I do not agree with him but would add that if that is what was laid down in 55 Ind Cas 94=(AIR 1920 All 111) (supra). I cannot subscribe to it. A co-sharer has the right to continue to possess a specific portion of joint property if he has been in established possession thereof and that is a right which he can validly alienate.
The right is subject to the rights of other co-sharers on partition and it would remain subject thereto even after the transfer. This is the view of the law which was taken by Radha Krishna, J., in Sripal Singh v. Mata Badal, AIR 1939 Oudh 243, by Tek Chand and Bhide, JJ. in Sukh Dev v. Parsi, AIR 1940 Lah 473 and by Chopra J. in Chanan Singh v. Santa Singh (1950) 5 DLR 8=(AIR 1950 Pepsu 5) and is in my opinion, if I may say so with all respect the correct view. The finding of the learned Senior Subordinate Judge on issue No. 4 is, therefore affirmed.
3. The only other contention raised by Ch. Roop Chand is that issue No. 2 has not been properly decided by the learned Senior Subordinate Judge. The finding on that issue is a finding of fact and is not open to attack in second appeal. The contention is, therefore, rejected.
4. In the result the appeal fails and is dismissed but with no order as to costs.
5. Appeal dismissed.