Amit Rawal, J. - (1.) The petitioner -plaintiffs are aggrieved of the dismissal of the application under Order 39 Rule 1 & 2 CPC filed along with the suit seeking the following reliefs: - i) Suit for declaration that the plaintiffs are the co -owners/co -sharers to the extent of 90 shares equivalent to 680 sq.yards, out of 793 shares (1B -19B -13B) equivalent to 5997 sq.yards, comprised in Khasra No. 337 (0B -12B -0B), 341 (0B - 8B -1B), 342 (0B -19B -12B) as per jamabandi for the year 2009 -2010, situated at Vill.Daad, Hadbast No. 279, Tehsil and District Ludhiana; ii) Suit for separate possession by partition of the shares of the plaintiff to the extent of 90 shares equal to 680 sq.yards out of 793 shares equivalent to 5997 sq.yards; iii) Suit for the grant of Permanent Injunction restraining the defendants from raising any construction over any part of the suit property and further restraining the defendant no. 43 from granting any permission to defendant no. 1 for installing any Petrol Pump in part of the suit property; iv) Suit for declaration that the entries existing in the jamabandi/ revenue record of the year 1959 -60 onwards in Khana Kashat are illegal, incorrect and are liable to be rectified as neither Ishar Singh s/o Mihan Singh nor Mehar Singh s/o Ishar Singh defendant no. 21 had any right to sell any part of the suit property comprised in Khasra No. 337, 341, 342 situated at Village Daad, Tehsil and District Ludhiana, as entered in the jamabandi for the years 1959 -60 thereby exceeding their share in the total property And Suit for declaration that the following sale deeds are not binding on the co -sharers: (a) alleged sale deed bearing wasika no. 3112 dated 9.9.1976 executed by Mehar Singh defendant no. 21 exceeding his share in the land comprised in khasra no. 342 in favour of Daljit Kaur and Amarjit Kaur. (b) alleged sale deed bearing wasika no. 1579 dated 21.6.1968 executed by Mehar Singh defendant no. 21 exceeding his share in the land comprised in khasra no. 341, in favour of Harnam Singh s/o Nathu. (c) alleged Tabdeel Malkiyatnama bearing wasika no. 1515 dated 27.4.2011 executed by Daljit Kaur in the land comprised in khasra no. 342 in favour of Parminder Singh Garcha. (d) alleged Mutation No. 17972 dated 31.1.2011 of inheritance of Amarjit Kaur in favour of Onkar Singh defendant no. 2. v) Suit for declaration that the said entries should be rectified as per the actual shares of the parties and any sale made by Mehar Singh or any of his successors as well as entries of mutations in the names of alleged purchasers are illegal, void, ineffective, inoperative qua the rights of the plaintiffs and that the plaintiffs continue to be the co -sharers/co -owners of the suit property to the extent of 90 shares equivalent to 680 sq.yards out of the total land measuring 1B -19B -13B till actual partition is effected between the parties.
(2.) Mr. Arun Jain, learned Senior Counsel assisted by Mr. Vaibhav Sehgal, Advocate, appearing on behalf of the petitioner -plaintiffs submits that the contest in the suit and as well as in the present revision petition is between the petitioner -plaintiffs and defendant Nos. 1, 2 and 43. The suit is based upon the documentary evidence, whereby the plaintiffs are claiming themselves to be co -owners and co -sharers and a separate possession by way of partition, much less permanent injunction and declaration. The entries existing in the jamabandi for the year 1959 -60 onwards have been challenged, much less sale deeds, as noticed above, on the premise that they all are the co -owners of the property comprised in Khasra Nos. 337, 341 and 342 purchased through sale deeds in various khasra numbers, including aforementioned khasra numbers of an area 680 sq.yards (90 shares). As per sale deeds dated 15.6.1987, 13.11.1987 and 4.5.2007, there were/are six cosharers.
(3.) Few days prior to the filing of the suit, it transpired that Mehar Singh son of Ishar Singh (co -sharer) executed certain illegal and void documents, in essence had executed the sale deed for much more than the share, i.e., 392 shares + 161 Biswasi against 217 shares equivalent to 1641 sq.yards. All the purchasers, namely, Harnam Singh son of Nathu, Amarjit Kaur wife of Sukhdev Singh son of Kehar Singh, Daljit Kaur wife of Jagdish Singh son of Kehar Singh could not have acquired the right and share beyond what Mehar Singh had and in this regard, referred the revenue record, Ex.P9, much less sale deed to show that the suit property is joint and the partition has never been effected, whereas on the contrary, defendant No. 1 claims the interest in the suit property only on the basis of Tabdeel Malkiyatnama executed by his mother Daljit Kaur in his favour on 27.4.2011 qua the land comprised in Khasra No. 342, whereas vide sale deed dated 9.9.1976, Daljit Kaur had purchased the share in the suit property from Mehar Singh, who had only 1/6th share in the suit property. This fact is evident from the revenue record and, thus, Daljit Kaur and Amarjit Kaur have only become co -sharer to the extent of 1/12th share each in the suit property and Tabdeel Malkiyatnama cannot exceed more than the share than what Daljit Kaur had acquired and in such situation, the contesting defendants cannot be permitted to raise the construction or install the Petrol Pump during the pendency of the partition as it would alter and change the nature of the property.;