JUDGMENT Hemant Gupta, J. - The defendants are in second appeal aggrieved by the judgment and decree passed by the Courts below whereby a decree for declaration was granted in favour of the plaintiff to the effect that the plaintiff is the owner in possession of land measuring 26 kanals 8 marlas and that defendant Nos. 1 to 2(C) were restrained from getting the auction sale confirmed and from taking actual or constructive possession. 2. One Kishan Singh and defendant No. 10 Balwant Singh alias Banta Singh were the owners of land measuring 545 kanals 6 marlas to the extent of 1/2 share each. Kishan Singh on 18.3.1955 raised Takavi loan from the State Government and pledged/mortgaged specific Khasra Numbers in favour of the State Government. After his death, his sons Ajit Singh and Dial Singh as well an Balwant Singh alias Banta Singh executed three separate sale deeds in the sum of Rs. 1,500/- each as Exhibits P-2, P-3 and P-4 on 31.3.1963 to one Mukhtiar Singh. Sale deed Exhibit P-2 contains a recital that there is a loan of the State Government outstanding against KIshan Singh. On 23.4.1963, Ajit Singh and Dial Singh sons of Kishan Singh executed another sale deed Exhibit P-5 in the sum of Rs. 1,500/- in favour of Mukhtiar Singh in respect of 8 kanals of land. On 9.12.1969, Mukhtiar Singh has sold land measuring 26 kanals 8 marlas to Karam Singh, Balkar Singh and Ram Singh in the sum of Rs. 10,000/- vide sale deed Exhibit P-1. It has also come on record that on 12.2.1971, 6/14th share of Kishan Singh was put to public auction for realisation of the loan along with interest amounting to Rs. 12,281.81. The said 6/14th share of land measuring 81 kanals 4 marlas was purchased by Ajit Singh, Karam Singh, Charan Singh, Chanan Singh sons of Chattar Singh, the present appellants. Another 1/4th share of Ajit Singh measuring 17 kanals 5 marlas was put to public auction on the same date in the sum of Rs. 15,000/- to recover the arrears of loan amount amounting to Rs. 7,854.03. It may be noticed that Karam Singh, the present plaintiff, filed objections to the said public auction before the Commissioner as contemplated under Section 91 of the Punjab Land Revenue Act. 15,000/- to recover the arrears of loan amount amounting to Rs. 7,854.03. It may be noticed that Karam Singh, the present plaintiff, filed objections to the said public auction before the Commissioner as contemplated under Section 91 of the Punjab Land Revenue Act. Such objections were dismissed by the Commissioner on 17.12.1975 and the sale certificate issued in favour of the present appellants on 7.12.1986. 3. The present suit has been filed by Karam Singh, purchaser from Kishan Singh through Mukhtiar Singh, to the effect that he has purchased Killa Nos. 33/5/1, 4/2, 22/23, 33/3/2 and, thus the said land cannot be said to be sold by public auction in favour of the auction purchaser, the present appellants. The said suit had been decreed by the Courts below. 4. The learned counsel for the appellants has argued that the sale of land pledged/mortgaged by Kishan Singh in favour of the State Government on 18.3.1955 as well as subsequent sale by his sons Ajit Singh and Dial Singh along with other co-sharer Balwant Singh alias Banta Singh though may be sale of a specific Khasra No. but, in fact, sale is of share of the total land. The parties are entitled to actual physical possession after partition of the land and, therefore, the plaintiff is not entitled to the declaration sought for. As a matter of fact, out of more than 272 kanals of land falling to the share of Kishan Singh, sale by two of the legal heirs of Kishan Singh, namely, Ajit Singh and Dial Singh, along with the sale of share by Balwant Singh in favour of Mukhtiar Singh and subsequent sale by public auction are the sales of the share of the land even though specific Khasra Nos. are mentioned in each or all of the sale deeds. Learned counsel for the appellants have vehemently placed reliance on Full Bench judgment of this Court in the case of Bhartu v. Ram Sarup, 1981 PLJ 204 as well as decision of the Supreme Court in the case of Mange Ram and others v. Ram Chander, 2001(1) PLJ 441. 5. In view of the above factual background, following substantial questions of law arise for consideration :- 1. Whether the mortgage or sale of a specific Khasra number by a co-owner is a sale of his share or the sale or mortgage is that of specific Khasra number ? 2. 5. In view of the above factual background, following substantial questions of law arise for consideration :- 1. Whether the mortgage or sale of a specific Khasra number by a co-owner is a sale of his share or the sale or mortgage is that of specific Khasra number ? 2. Whether the sale by legal heirs of Kishan Singh and sale by public auction are out of the share of Kishan Singh ? 3. Whether the jurisdiction of the civil Court is barred ? 4. Whether the plaintiffs are bona fide purchasers for value and consideration ? In Bhartus case (supra), the Full Bench was considering the question whether the sale of a specific portion of land described by particular Khasra numbers by a co-owner out of the joint Khewat would be a sale of share out of the joint land and pre-emptible under Section 15(1)(b) of the Punjab Pre-emption Act. The Full Bench held to the following effect :- "The rights of a transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of Property Act which provides that where one or two or more co- owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. .... That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular Khasra number which is not in his possession but is within his share in the joint holding. For example, A who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing Khasra numbers X and Y which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can he claim its possession from other co-owners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled to 10 bighas of land out of the share of his vendor at the time of portion or prior thereto to a decree for joint possession to the extent of the land purchased by him. Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the co- owners." 6. In Mange Rams case (supra), Supreme Court approved the view of this court in Bhartus case (supra) and held that sale of a specific portion of the land described by particular Khasra numbers by a co-owner out of joint Khewat would be a sale of share out of joint Khewat. 7. In view thereof, the argument raised by the learned counsel for the appellants requires to be accepted. Therefore, irrespective of mortgage of specific Khasra numbers in favour of the State Government or subsequent sales by the legal heirs in favour of Mukhtiar Singh, are sales, in fact, out of the share of Kishan Singh. Therefore, it is held in respect of first substantial question of law that mortgage or sale of land a specific Khasra number would be a sale of a share by the co-owner. 8. In respect of second substantial question of law, it is admitted by learned counsel for the parties that Kishan Singh had approximately 272 kanals of land. Thus, the sale of land measuring 26 kanals 10 marlas including 1/3rd share of Balwant Singh out of his separate 1/2 share of land out of 545 kanals 6 marlas of land would be sale of a land out of the share of Kishan Singh. In this view of the matter, all the sales effected by his legal heirs or by the State Government to realise the arrears of land revenue are very well within the share of Kishan Singh. In this view of the matter, all the sales effected by his legal heirs or by the State Government to realise the arrears of land revenue are very well within the share of Kishan Singh. In a nutshell, the following sales have been effected out of the share of Kishan Singh :- "(1) sale dated 31.1.1963 of 26 kanals 10 marlas land less 1/3rd share of Balwant Singh; (2) sale dated 29.4.1963 of 8 kanals land by Ajit Singh and Dial Singh sons of Kishan Singh; (3) sale of 86 kanals 4 marlas of land on 12.2.1971 through public auction; (4) sale of 17 marlas 5 marlas of land of Ajit Singh son of Kishan Singh on 12.2.1971 through public auction". 9. All the sales combined together are less than the share of Kishan Singh. The daughters of Kishan Singh have been impleaded as defendant Nos. 5 to 8 and have not contested the suit nor claimed any interest in the estate of Kishan Singh. Therefore, the sale deeds in favour of Mukhtiar Singh and subsequent sale deed in favour of the plaintiff as well as sale of land by public auction are out of the share of Kishan Singh and each of the vendees can seek partition to claim actual physical possession of the land conveyed to them respectively. Thus, it is held that the sale of land by legal heirs of Kishan Singh and sale by public auction are sales out of the estate of Kishan Singh. 10. Learned counsel for the appellants has also raised the argument that the jurisdiction of the civil Court is barred in terms of Section 158 of the Punjab Land Revenue Act as the learned Commissioner has dismissed the objections filed by the plaintiff in 17.12.1975. However, the said argument of the appellants cannot be accepted. The learned Commissioner dismissed the objection on 17.12.1975 vide order Exhibit D-3 on the ground that the suit filed by plaintiff Karam Singh before the civil Court has been dismissed by the Sub Judge and the petition for restoration has also been dismissed by that Court vide order dated 30.5.1974. The civil suit was dismissed in default on March 31, 1973 and the application for its restoration filed by the plaintiff was also dismissed on 30.5.1974. The civil suit was dismissed in default on March 31, 1973 and the application for its restoration filed by the plaintiff was also dismissed on 30.5.1974. In Civil Revision No. 1022 of 1974, order dated 30.5.1974 dismissing the application for restoration of the suit was set aside and the suit was ordered to be restored on 12.3.1976. Once the suit has been restored, the finding recorded by the learned Commissioner that the objections have been dismissed by the civil Court falls to the ground. The learned Commissioner has not decided the objections on merits but dismissed only on the ground that the suit has been dismissed by the civil Court. Since the suit filed by the plaintiff has been restored by this Court in Civil Revision No. 1022 of 1974, the plaintiff cannot be non-suited on the ground that the civil Court has no jurisdiction as the objections were not adjudicated upon by the learned Commissioner on merits. 11. Learned counsel for the appellants has also argued that the plaintiff is not a bona fide purchaser for value and consideration. He has referred to the sale deed Exhibit P-2 wherein recital has been made regarding the loan of the State Government. It is also pointed out that the plaintiff is a resident of the same village and is a relative of Ajit Singh as wife of Karam Singh and wife of Ajit Singh are cousins. It was argued that the Courts below have erred in law in holding that the plaintiff is a bona fide purchaser on the ground that the land purchased by the plaintiff was not the land pledged by Kishan Singh in favour of the State Government, whereas the plaintiff has proved that he purchased the suit land for consideration. 12. In view of the findings recorded above that the sale of specific Khasra numbers by a co-sharer is only a sale of share in the total holding, the finding recorded by the Courts below that since specific Khasra numbers purchased by the plaintiff were not pledged and, therefore, the plaintiff is a bona fide purchaser, is not sustainable. 12. In view of the findings recorded above that the sale of specific Khasra numbers by a co-sharer is only a sale of share in the total holding, the finding recorded by the Courts below that since specific Khasra numbers purchased by the plaintiff were not pledged and, therefore, the plaintiff is a bona fide purchaser, is not sustainable. However, in view of the fact that the sale deed Exhibit P-2 contains the recital of the loan and that the sale deed Exhibit P-2 was handed over by Mukhtiar Singh to the plaintiff at the time of sale in the year 1969 and that the plaintiff was a resident of the same village, therefore, it is unbelievable to assume that the transaction of the land was not known to the plaintiff. It has been held by the Supreme Court in Dr. Govinddas and another v. Shrimati Shantibai and others, 1972 PLR 227, that where the parties to the agreement are residents of a small village then it is not possible to believe that the residents of the said village are not aware of the agreement. Thus, I am unable to uphold the finding recorded by the Courts below on issue No. 4 that the plaintiff is a bona fide purchaser for value and consideration. 13. It is, thus, held that the sale of land on 31.1.1963 by Ajit Singh, Dial Singh and Balwant Singh in favour of Mukhtiar Singh, sale by Ajit Singh and Dial Singh on 29.4.1963 in favour of Mukhtiar Singh and subsequent sale on 9.12.1969 by Mukhtiar Singh in favour of Karam Singh are sales for value and consideration and out of a share of the holding of Kishan Singh. Similarly, sale by public auction in favour of the present appellants on 12.2.1971 is also sale out of the share of Kishan Singh and suffers from no material irregularity or illegality. The said sale is binding on the estate of Kishan Singh. In case the estate of Kishan Singh is not sufficient to satisfy the above sales including the sale by public auction, the sale of land by public auction will take preference as such sale is in pursuance of the mortgage of the land effected earlier in point of time i.e. in the year 1955. The parties shall take actual physical possession in separate proceedings for partition of the land. Consequently, the present appeal is allowed. The parties shall take actual physical possession in separate proceedings for partition of the land. Consequently, the present appeal is allowed. The judgment and decree passed by the Courts below is set aside and the decree for declaration is passed in favour of the plaintiff along with defendant Nos. 12 and 13 that they are owners in possession of the land measuring 26 kanals 8 marlas on the basis of sale dated 9.12.1969 subject to right of the vendees in public auction in a suit for partition. Appeal allowed.