IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) RSA No. 428 of 1997(O&M)

Lakhi Ram (since deceased)

through his LRs Ram Lal & Ors. ..…Appellants Versus Lal Chand & Ors.

…Respondents (ii) COCP No. 120 of 2002(O&M)

Lakhi Ram (since deceased)

through his LRs Ram Lal & Ors. ..…Petitioners Versus Lal Chand & Ors.

…Respondents Reserved on: 17.11.2025 Pronounced on:19.11.2025 Uploaded on : 19.11.2025 CORAM: HON’BLE MR. JUSTICE DEEPAK GUPTA Argued by:- Mr. P.K. Ganga, Advocate for the appellants/ petitioners.

Mr. Jaswant Jain, Advocate For the respondents No.1 to 4.

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DEEPAK GUPTA, J.

This Regular Second Appeal has been filed by the plaintiff Lakhi Ram, who is aggrieved by the judgment of the learned Additional District Judge, Sirsa dated 03.02.1997, whereby the decree passed in his favour by the trial Court on

28.01.1994 was modified.

2. For convenience, the parties shall be referred to by their original status before the trial Court.

3. The plaintiff Lakhi Ram and defendants No.5 to 7, namely Sultan, Daulat Ram and Brij Lal, are real brothers, all sons of one Sohna. They are joint owners in possession of a large tract of land measuring 348 Kanals 18 Marlas in village Khari Sureran, as per the Jamabandi for the year 1985–86. The present controversy, however, is confined to 40 Kanals 1 Marla of land, fully detailed in the headnote of the plaint.

4. According to the plaintiff, the entire holding being joint and no formal partition having taken place amongst the co-sharers, defendant No.5 Sultan had no legal competence to exchange any specific and demarcated portion of the land. Despite this, Sultan is alleged to have exchanged the aforesaid 40 Kanals 1 Marla with defendants No.1 to 4, on the basis of which mutation No.603 was sanctioned on 09.03.1989. This mutation, along with Roznamcha entry No.225, was challenged by the plaintiff as being null, void and inoperative against his rights as well as those of the other co-sharers.

5. Defendants No.1 to 4 contested the suit. While they candidly admitted the joint ownership of all brothers as well as the factum of exchange, they pleaded that a private family arrangement existed, under which Sultan was in separate and exclusive possession of the suit land, and was therefore, fully entitled to exchange the same in lieu of land of the answering defendants. Their position was that the land exchanged did not exceed Sultan’s legitimate share in the joint Khewat and that the exchange stood valid in the eyes of law.

6. The trial Court, upon appraisal of the entire evidence, decreed the suit and declared mutation No.603 to be illegal and void on the reasoning that a co-sharer cannot exchange or alienate specific Khasra numbers of joint property in the absence of partition.

7. However, the First Appellate Court, while examining the matter more minutely, came to a different conclusion and found that Sultan had not transferred land in excess of his share and so, the trial Court erred in declaring the entire mutation as void. Relying heavily upon the Full Bench judgment in Bhartu v. Ram Sarup, 1981 PLJ 204, the Appellate Court noted that a co-sharer possesses an undivided interest in every inch of the joint property and may remain in exclusive possession of a part of the joint holding so long as such possession does not exceed his share. It is equally well settled that such a co-sharer can alienate or transfer the portion in his possession, subject to adjustment at the time of partition. Applying this principle, First Appellate Court held that the exchange was valid to the extent of Sultan’s share, though not in respect of any specific Khasra numbers. Thus, the mutation ought to have been set aside only to the limited extent of having mentioned specific Khasra numbers and could not have been annulled in its entirety. The Appellate Court accordingly modified the decree to this extent and clarified that all parties would continue to remain joint owners in possession until partition, whereafter appropriate adju