IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on : 12.11.2025 Pronounced on : 18.11.2025 Om Parkash (Since Deceased) Through Lrs and Others … Appellants Versus Dharam Pal and Others … Respondents CORAM: HON’BLE MR. JUSTICE VIRINDER AGGARWAL Present: Mr. Amarjit Singh Virk, Advocate for the appellants Mr. Som Nath Saini, Advocate for the Respondent No. 1 ******

VIRINDER AGGARWAL,J.

1. This Regular Second Appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 05.12.1995 passed by the learned Additional District Judge, Karnal, whereby the appeal filed by him was dismissed and the judgment and decree dated 01.02.1995 passed by the learned Sub Judge IInd Class, Karnal, dismissing his suit for declaration, was affirmed. The appellant seeks to challenge the legality of the sale deed dated 30.04.1987(Ex.P) executed by respondent No.2/Defendant no.1 in favour of respondent No.1/Defendant no.2 in respect of land measuring 11 Kanals-0 Marlas, on the ground that the vendor did not possess sufficient share to alienate such land.

2. The parties are co-sharers in joint agricultural land situated in village Phoosgarh, Sub. Tehsil Indri, District Karnal comprised in Khewat Nos. 61 and 62. Respondent No.1/Defendant no.2, Hari Chand, is shown to be owner of

1/5th share, which after adjusting mortgaged land comes to 8 Kanals 8 Marlas in Khewat No.61. Before the impugned sale, certain land measuring 27 Kanals 12 Marlas,(out of shared land as 55 Kanals 5 Marlas alongwith appellant- plaintiff), was mortgaged by Respondent no.2/Defendant no.1 with possession vide deed dated 23.05.1983(Ex.PX). According to the appellant, most of the mortgaged land fell to the share of respondent No.1/Defendant no.2 and, after adjusting the mortgaged area, he was left with only 8 Kanals 8 Marlas of land out of his total share of 1/5th from entire land of 180Kanals under two Khewats no.61 and 62. Despite this, respondent No.1/Defendant no.2 executed a registered sale deed dated 30.04.1987(Ex.P2) in favour of respondent No.2/Defendant no.1, alienating 11 Kanals 9 Marlas, representing the land to be free from all encumbrances. The plaintiff, asserting that the sale was in excess of the vendor’s share and thus void, instituted the suit for declaration.

3. On Notice, respondents/defendants contested that suit by assertion that sale deed is valid and has not been executed in excess of share of respondent No.2/defendant No.1 The learned Trial Court, after examining the jamabandis for the relevant years and considering the evidence led by both sides, found that respondent No.2/Defendant no.1 was in possession of the specific land mentioned in the sale deed. It held that in joint holdings, a co-sharer is competent to transfer even specific khasra numbers and such a transfer cannot be declared void merely because it exceeds his fractional share, for the reason that adjustment of equities can always be made at the time of partition. The Court further found that the mortgaged land was entirely separate from the killa numbers sold and that the plaintiff’s remedy, if any, lay in seeking partition rather than a declaration that the sale deed was void. Consequently, the suit was dismissed.

4. The First Appellate Court reappraised the evidence and concurred with the conclusions of the learned Trial Court, holding that the vendee stepped into the shoes of the vendor and the alienation remained subject to partition. It affirmed that no illegality or perversity existed in the findings of the learned Trial Court.

CONTENTIONS

5. Learned counsel for the appellant argued that respondent No.2/Defendant no.1 had no legal right to transfer land in excess of 8 Kanals 8 Marlas, which was the only area left with him after adjusting the mortgage land vide deed dated 23.05.1983 (Ex.PX). He submitted that the very foundation of the sale deed was incorrect because the land was represented to be free from encumbrances when in fact the vendor’s share was alre