The sale of a specific portion of the land described by particular khasra numbers by a co-owner out of a joint khewat is pre-emptible, and the plea of private partition and the recital in the sale deed are not sufficient to prove mutual partition of the land.

RAKESH KUMAR GARG, J.

1. This is defendants second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondents for possession by way of pre-emption has been decreed. As per the averments made, plaintiff-respondent No.1 filed a suit for possession of the land in dispute by way of preemption on the ground that respondent Nos.2 to 4 (defendant No.4 to 6) were the owners and joint possession of the land including the suit land, and they sold the land to the extent of 13/36 share in favour of the appellants (defendant Nos.1 to 3), for a consideration of Rs.1,99,000/- vide sale deed dated 2.11.1989. The defendants in collusion with each other incorporated the specific khasra numbers, so as to avoid the pre-emption of the sale, and have alleged mutual partition and the recital in the sale deed is not correct because the appellants had purchased a share out of the suit land. The suit land was sold for a consideration of Rs.1,50,000/- and a sum of rs.1,99,000/- was shown wrongly. No notice was served upon the plaintiff respondent. Hence the present suit,

2. The suit was contested by the appellants on the ground that the khewat was not joint between the plaintiff -respondent and defendant Nos.4 to 6. The plaintiff was the exclusive owners of particular khasra numbers and he was not the co-sharer and the defendant-appellants had purchased specific khasra numbers as there was a mutual partition. The parties were no more co-owners and in joint possession of the suit land. The suit land was rightly sold for sale consideration of Rs.1,99,000/- for which the defendant-appellants were entitled to stamp and registration charges, and had spent a sum of Rs.5928/-for the development of the suit land. Thus, the suit was liable to be dismissed.

3. On appreciation of evidence, the trial Court found that the mutual private partition as alleged by the appellants was not proved and the sale of specific khasra numbers being the sale of his share, it was held that plaintiff was a co-sharer in the suit land at the time of the sale and still was a co-sharer in the suit land and, therefore, he had a superior right to pre-empt the sale in question. Thus, the suit of the plaintiff-respondent was decreed.

4. Feeling aggrieved by the aforesaid judgment and decree of the trial Court dated 23.7.1993, appellants filed Civil Appeal No.116 of 1993, which was accepted by the District Judge, Bhiwani vide his judgment dated 17.4.1995. Against the aforesaid judgment and decree plaintiff-respondent filed rsa No.1838 of 1995, which was allowed by this Court vide judgment dated 13.7.2006 whereby the judgment and decree of the lower Appellate Court dated 17.4.1995 was set aside and the matter was remanded back to the first Appellate Court for decision afresh. On remand the lower appellate Court vide impugned judgment and decree dated 17.5.2007 affirmed the findings of the trial Court vide judgment and decree dated 23.7.1993. While dismissing the appeal, the lower Appellate Court observed as under:-

" The learned defence counsel vehemently argued that the vendors sold the specific khasra numbers to them as mentioned in sale deed Ex. P1. They did not sell the share in the joint khewat. The plaintiff purchased the land from Bhagirath, vide sale deed dated 21.10.1985, copy of which is Ex. D5. From the perusal of this sale deed, it is clear that specific khasra numbers were sold to them. The land sold to them and his brothers was faillng in khewat no.227, khatoni no.276/231, killa numbers 30 and 36 12 19 21, 22 1 8-0 8-0 7-12 8-0 8-0 it shows that they were given share in the particular numbers only and not the entire khewat. Mutual partition is clearly proved in between the parties, which is clear from the perusal of sale deeds ex. D1,ex. D2,ex. D4,ex. D9 and Ex. D10, because vide those sale deeds specific numbers were sold. The parties are in possession of the specific portion of the land. In this way the plaintiff cannot be