G.C.GARG, J. - (1.) THIS revision is directed against the order dated May 13, 1993 whereby learned trial Court dismissed the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff seeking amendment of the plaint.
(2.) PLAINTIFF -petitioner filed a suit for specific performance of agreement dated June 4, 1990 executed by Shamsher Singh in respect of land measuring 24 kanals situated in Village Mudki at the rate of Rs. 34,000/- per killa. The land agreed to be sold bore specific khasra numbers. Shamsher Singh having refused to execute the sale deed led the plaintiff to file a suit for specific performance. The plaintiff further prayed that the sale deed executed by Shamsher Singh in favour of Sukhwinder Kaur in respect of land measuring 22 Kanals 14 Marias of specific khasra numbers was null and void and inoperative against the rights of the plaintiff. In the alternative, the plaintiff prayed for the recovery of Rs. 1,02,000/- on account of refund of earnest money and damages. During the pendency of the suit, plaintiff moved an application under Order 6 Rule 17 of the Code seeking permission to amend the plaint. The plain-tiff prayed that he be permitted to amend the plaint so as to state that he be declared to be the owner of 1/4th share of the Land measuring 110 Kanals 18 Marias with consequential relief of injunction restraining defendant No. 2 from selling or parting with possession in any manner of the suit land or the land sold to the said defendant. The plaintiff had further prayed that he permitted to add a new para No. 5-A in the following form: "5-A. That after the death of Bikkar Singh, the defendant No. 1 and his sisters became owner to the extent of l/4th share in the land measuring 110 Kanals 18 Marias. The defendant Ho. 1 claims to be the owner of the entire land on the basis of will alleged to have been executed by Bikkar Singh deceased in favour of defendant No. 1. The will was ignored by Asstt. Collector 1st Grade and the mutation had been duly sanctioned in favour of the defendant No. 1 and his sisters in equal shares. The share of the defendant is l/4th share. The defendant No. 1 was in possession of land measuring 24 Kanals and had agreed to sell the same to the plaintiff vide agreement dated 4. 6. 2990. The defendant No. 2 had sold the land measuring 22 Kanals 14 Marias as given in heading of the plaint to defendant No. 2. The defendant No. 1 had already entered into an agreement of sale of his l/4th share giving specific Khasra numbers in the agreement dated 4. 6. 1990 and was left with no other share in the land in question. The defendant No. 1 has sold land measuring No. 22 Kanals 14 Marias of specific Khasra numbers to defendant No. 2. The defendant No. 1 had only 1/4th share and was not competent to sell land measuring 22 kanals 14 Marias in violation of agreement dated 4. 6. 1990 as the defendant No. 1 was left with no land at his disposal. In case decree for 24 kanals as fully detailed in the heading of the plaint cannot be granted in favour of the plaintiff than the plaintiff may be declared the owner of 1/4th share in the total land measuring 110 Kanals 18 Marias situated in Village Mudka Tehsil and Distt. Ferozepore. Thus the sale of land measuring 22 Kanals 14 Marias in favour of defendant No. 2 is null, void and ineffective against the rights of the plaintiff and the defendant No. 2 be restrained from selling or disposing of the land in any manner, purchased by defendant No. 2 from defendant No. 1. He has averred that the said amendments are material in the interest of justice for proper decision of the case and are of formal nature and will not change the nature of the suit. "
(3.) ON a consideration of the matter, I am of the view that this revision has no merit. The plaintiff agreed to purchase specific khasra numbers, total measuring 24 Kanals, out of the 110 Kanals. He is entitled to a decree, if at all, for specific performance in terms of agreement to sell. He cannot be granted a 1 decree in respect of l/4th share of unspecified khasra number. In a suit for specific performance the plaintiff is seeking specific performance of agreement to sell and he cannot be permitted to substitute in the agreement, of his own, either different khasra numbers or a share in lieu of specified khasra number. In the situation aforesaid, I am of the view that such a course is not open to the plaintiff and he cannot seek specific performance of 1/4th share in the land owned by Shamsher, Singh in place of specific khasra numbers for which there is an agreement in his favour. Even, otherwise if the plaintiff is permitted to amend the plaint as prayed for, it will amount to granting a decree in favour of the plaintiff for an area which would be more than the one Shamsher Singh agreed to sell to the plaintiff vide agreement to sell dated June 4, 1990. 5. The plaintiff in my view is not going to suffer in case the amendment is declined. A co-sharer can transfer a portion in his possession of the joint holdings. In the event of the plaintiff getting a decree for specific performance of specific khasra numbers, he would get a right to joint possession and therefore, a right to enforce partition irrespective of the fact whether the property sold was a share or specified khasra numbers of the joint holdings. A sale of specific potion of land out of joint holding by a co-sharer is nothing but a sale of share out of the joint holdings. Support for this view is available from the judgment of a Full Bench of this Court in Bhartu v. Ram Sarup,1981 PLJ 204. 6. For the reasons recorded above, the revision fails and is hereby dismissed. The parties through their counsel have been directed to appear in the trial Court on July 27, 1994 for further proceedings. .;