JUDGMENT

B.S.Walia, J. (Oral)

1. Petitioners have challenged judgment dated 04.09.2017 Annexure P-3 passed by the learned Addl. District Judge, Shaheed Bhagat Singh Nagar, whereby order dated 25.05.2017 Annexure P-2 passed by the learned Addl. Civil Judge(Sr. Div) Shaheed Bhagat Singh Nagar, dismissing the application under Order 39 Rules 1 and 2, CPC was set aside.

2. Brief facts of the case leading to the filing of the instant revision petition are that the respondent-plaintiff filed a civil suit on 27.03.2017 on the ground that he was one of the co-sharers and sought permanent injunction for restraining the petitioners-defendants from taking actual, physical and exclusive possession of a specific portion of the land. Respondent-plaintiff also filed an application under Order 39 Rules 1 and 2, CPC, which was declined by the learned Addl. Civil Judge (Senior Division) SBS Nagar, vide order dated 25.05.2017. Aggrieved, the respondent-plaintiff filed an appeal which as has been noticed above was allowed by the learned Additional District Judge, SBS Nagar, vide order dated 04.09.2017 i.e. Annexure P-3, by taking note of the fact that the defendant/petitioner No.1 Harish Kaur purchased the property on the basis of three sale-deeds executed by the original owners i.e. Mohan Singh, Dhanna Singh and Surjit Kaur, however, it had not been shown that the original owners were in possession of any specific portion of the land, therefore, their vendee Harish Kaur could not claim ownership or possession over any specific portion and she remained to be a joint owner of the suit land alongwith the appellant.

3. Learned Addl. District Judge, SBS Nagar, while passing the impugned order relied upon the decision of the Hon'ble Supreme Court in Ram Dass Vs. Sitabal and others, 2009(2) SLJ 1138, as per which although undivided share of co-sharer could be the subject matter of sale, but possession could not be handed over to the vendee unless the property was partitioned by metes and bounds. Learned Additional District Judge further recorded that admittedly in the case in hand, the suit property had not been partitioned between the co-sharers, therefore, Harish Kaur i.e. defendant/petitioner No.1 could not claim possession over any specific portion of the land on the basis of the sale deeds executed by the original co-sharers. Holding that prima facie case was made out in favour of the respondent-plaintiff who was a co-sharer in the suit property, balance of convenience was also tilted in his favour besides, irreparable loss would be caused to the respondent-plaintiff if the petitioners-defendants were allowed to take possession of any specific portion of the land, the learned Addl. District Judge, reversed the order passed by the learned trial Court, allowed the application under Order 39 Rules 1 and 2 of CPC and restrained the defendants-petitioners from taking actual, physical and exclusive possession of any specific and valuable portion of the suit land and also restrained them from raising any construction thereupon.

4. Learned counsel has reiterated the reasoning given by the learned trial Court while dismissing the application.

5. I have considered the submissions made by learned counsel for the petitioners.

6. A perusal of the decision of the Hon'ble Supreme Court in Ram Dass case (Supra) reveals that in the absence of formal physical partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share.

7. Relevant extracts i.e. para Nos. 15, 16 and 17 of the aforementioned decision are reproduced hereunder:-

“15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. AIR 1966 SC 470, wherei