A co-sharer in separate possession of a parcel of joint land can alienate the same to a third person as his own exclusive property, subject to the right of the other co-sharers to have their respective shares assured to them on a partition.

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. 1/2

2. Shrimati Chando widow of Kishan Singh. 1/4

3. Lal Singh defendant No. 2 1/8

4. 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. 2s) 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.

5. Relief.

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 wi