A co-sharer has the right to sell a specific portion of land out of joint khewat, which shall be deemed as a sale of share out of the joint land, and no injunction could be issued by the court restraining the appellant from alienating the property until the land is partitioned.

N.K. Kapoor, J. - This is defendants appeal against the judgment and decree of Additional District Judge affirming the judgment and decree of the trial court whereby the suit filed by the plaintiffs was decreed-restraining the defendants from alienating any specific killa No. of the suit land or of the khewat by sale, mortgage etc.

2. The matter in dispute lies in a very narrow compass. Admittedly, parties are co-sharers. As per case set up by the plaintiff, plaintiffs have 1/10th share in the suit property and defendant No. 2 Jagdish Parsad and also 1/10th share. Jagdish Parsad sold 9 Kanals 4 Marlas out of land held by him in favour of one Teka. Defendant filed a suit for pre-emption which was decreed. This way defendant came in the foot-steps of Jagdish Parsad. Parties differ regarding the possession of land which was sold by Jagdish Parsad i.e. according to the defendant he has been put in possession which fact is, however, contested by the defendant. As noticed earlier, suit of the plaintiffs was decreed by the trial Court thereby restraining the defendants from alienating any specific killa No. of the suit land by sale, mortgage each which finding has been upheld by the lower appellate court as well.

3. Learned counsel for the appellant argued that no injunction could be granted against a co-sharer restraining him from transferring his right in the property as any such sale or mortgage is, of course, subject to rights of other co-sharers which are to be determined at the time of final partition. The view taken by the courts below is contrary to the decision of this court in Bhartu v. Ram Sarup, 1981 P.L.J. 205 (F.B.).

4. I have gone through the judgments of the courts below as well as other evidence on record and am of the view that the appeal deserves to be allowed on the short ground that in view of Full Bench decision of this court a co-sharer is well within his right to sell a specific portion of land out of joint khewat though, of course, such a sale shall be deemed to be sale of share out of the joint land. The precise point which was considered by the Full Bench in Bhartus case (supra) was, "whether the sale of a specific portion of Land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale out of the joint land and pre-emptible under Section 15(1)(b) of the Punjab Pre-emption Act ?". The court relying upon the earlier decision of this court in Sant Ram Nagina Ram v. Daya Ram Nagina Ram, AIR 1961 Punjab, 528 (Division Bench) relating to inter se rights and liabilities of the co-sharers as well as other decisions referred to in this judgment finally came to the conclusion that sale of even a specific portion out of the joint land by a co-sharer shall be deemed to be sale of a share out of joint land. This being the position, no injunction could be issued by the Court restraining the appellant from alienating the property till such time the land is partitioned. Accordingly, I accept the appeal, set aside the judgment and decree of the courts below. However, it is made clear that any such sale made by the appellant even of any specific portion of the joint khewat shall, of course be considered to be a share out of the joint land thereby conferring no special rights upon the purchaser at the time of actual partitioning of the holding.