JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Plaintiffs Hardev Singh etc. having been non-suited by both the courts below have filed the instant second appeal. 2. Plaintiffs’ claim is that they are owners in possession to the extent of 32 kanals 9 marlas land out of suit land measuring 97 kanals 8 marlas described in the plaint. However, defendants no. 1 and 2 suffered consent decree dated 2.1.1991 in favour of Partap Singh (predecessor of defendants no. 3 to 7). The said decree was suffered for 9 kanals 12 marlas land in excess of the share of defendants no. 1 and 2 and consequently, the said decree does not effect the rights of the plaintiffs in the suit land. The said decree is null and void and inoperative against the plaintiffs to that extent. Necessary injunction was also sought. 3. Defendants no. 1 and 2 were proceeded ex parte in the trial court. 4. Defendants no. 3 to 7 contested the suit and pleaded that it was agreed among co-sharers that if there is any difference in measurment of land in one khewat, the same can be adjusted from the other khewat because the parties are co-sharers in the suit land falling in four khewats of 101, 427, 998 and 1224. It was also pleaded that different co-sharers are in possession of the land approximately equal to their shares except Sahab Singh plaintiff no. 3 who is in possession of land in excess of his share and for this reason partition application moved by the plaintiffs in revenue court was got dismissed as withdrawn. It was pleaded that defendants no. 1 and 2 have rightly transferred the land in favour of Partap Singh and the said transfer is not in excess of their share. Various other pleas were also raised. 5. Learned Civil Judge (Junior Division), Dabwali vide judgment and decree dated 2.8.2004 dismissed the plaintiffs’ suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Fast Track Court, Sirsa vide judgment and decree dated 17.1.2009. Feeling aggrieved, plaintiffs have filed the instant second appeal. 6. I have heard learned counsel for the parties and perused the case file. 7. Counsel for the appellants referred to statement of Devi Lal, Patwari, PW2 who brought relevant revenue record. Feeling aggrieved, plaintiffs have filed the instant second appeal. 6. I have heard learned counsel for the parties and perused the case file. 7. Counsel for the appellants referred to statement of Devi Lal, Patwari, PW2 who brought relevant revenue record. Relevant part of his statement has been extracted at page 5 of the paper book and the same is reproduced hereunder:- “I have brought the summoned record according to which area in the ownership of Raj Kumar and Subhash in the year 1973- 74 was 64 kanals and 18 marlas. They were left with an area of 13 kanals and 1 marla in 1991 because they had sold away an area of 51 kanals and 17 marlas in the year of 1977. As per the decree of 1991 Raj Kumar & Subhash transferred an area of 22 kanals and 4 marlas which exceeded the land in their ownership by 9 kanals and 3 marlas.” 8. It was thus, contended that defendants no. 1 and 2 transferred 9 kanals 3 marlas land in excess of their share in favour of Partap Singh predecessor of defendants no. 3 to 7 by way of consent decree dated 2.1.1991. 9. Counsel for the respondents, on the other hand, contended that revenue record may be summoned to decide whether defendants no. 1 and 2 suffered decree regarding land in excess of their share. It was also contended that defendants no. 3 to 7 are bonafide purchasers of the suit land for valuable consideration. Reference was also made to observations of the courts below to contend that transfer by defendants no. 1 and 2 was not in excess of their share. 10. I have carefully considered the rival contentions. Lower appellate court has observed in paragraph 10 of its judgment that Devi Lal, Patwari, PW2 has stated that share of defendants no. 1 and 2 came to 22 kanals 4 marlas for which they suffered decree dated 2.1.1991 (date wrongly mentioned as 9.1.1991). However, this observation of the lower appellate court is factually incorrect and appears to be based on misreading of evidence in view of relevant extract of statement of Devi Lal, Patwari, PW2 reproduced hereinbefore. Counsel for the respondents failed to refer to any part of statement of said witness to substantiate the aforesaid observation of the lower appellate court. It is, thus, apparent that defendants no. Counsel for the respondents failed to refer to any part of statement of said witness to substantiate the aforesaid observation of the lower appellate court. It is, thus, apparent that defendants no. 1 and 2 as against their remaining share of 13 kanals 1 marla suffered decree regarding 22 kanals 4 marlas i.e. 9 kanals 3 marla in excess of their share. Revenue record is not required to be summoned as submitted by counsel for respondents no. 1 and 2 because Devi Lal, Patwari PW2 had brought the said record. He categorically stated that as per jamabandi for the year 1973-74, share of defendants no. 1 and 2 was 64 kanals 18 marlas out of which they sold 51 kanals 17 marlas in the year 1977 and they were left with 13 kanals 1 marla but they suffered decree regarding 22 kanals 4 marlas i.e. 9 kanals 3 marlas in excess of their share. This statement based on revenue record clearly establishes that defendants no. 1 and 2 suffered impugned decree dated 2.1.1991 in excess of their share to the extent of 9 kanals 3 marlas and finding of the courts below to the contrary is patently perverse and illegal being based on misappreciation and misreading of evidence on record, giving rise to substantial question of law for adjudication in the instant second appeal. 11. Observation of the trial court in paragraph 9 of its judgment which was heavily referred to by counsel for respondents no. 3 to 7 is also untenable. Perusal of mutation no. 3373 reveals that Chander Mohan etc. who were also party to decree dated 2.1.1991 transferred 9 kanals 17 marlas land in favour of Partap Singh predecessor of respondents no. 3 to 7, out of their share i.e. share of Chander Mohan etc., but defendants no. 1 and 2 transferred 22 kanals 4 marlas land pertaining to their share although they were left with 13 kanals 1 marla land only out of their share. Transfer by Chander Mohan etc. was separate out of their share and has no concern with the share of defendants no. 1 and 2. Consequently, non-impleadment of Chander Mohan etc. has no bearing on the claim of the plaintiffs. 12. Plaintiffs also cannot be said to be guilty of suppressing material facts from the court because decree dated 2.1.1991 to which Chander Mohan etc. was separate out of their share and has no concern with the share of defendants no. 1 and 2. Consequently, non-impleadment of Chander Mohan etc. has no bearing on the claim of the plaintiffs. 12. Plaintiffs also cannot be said to be guilty of suppressing material facts from the court because decree dated 2.1.1991 to which Chander Mohan etc. were also party has been produced by the plaintiffs themselves and the said decree is under challenge in the suit and consequently, it cannot be said that plaintiffs have concealed or suppressed material facts from the court as erroneously observed by the trial court. 13. Defendants no. 3 to 7 or their predecessor Partap Singh cannot be said to be bonafide purchasers of the suit land because judgment and decree dated 2.1.1991 were passed on claim of ownership by adverse possession canvassed by Partap Singh in his said suit. So question of Partap Singh or his successors respondents no. 3 to 7 being bonafide transferees for valuable consideration does not arise. On the other hand, defendants no. 1 and 2 could not transfer land in excess of their share. Consequently, their successors respondents no. 3 to 7 cannot acquire right in land in excess of share of defendants no. 1 and 2. 14. Observation of the lower appellate court that excess share can be adjusted out of some other khewat is also vague and untenable. The total joint land measuring 97 kanals 8 marlas comprised of aforesaid four khewats no. 101, 427, 998 and 1224 and therefore, question of adjustment of excess land from some other khewats does not arise. Substantial question of law arising to this effect in the instant second appeal also has to be answered in favour of the plaintiffs. 15. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside. Suit filed by the plaintiffs is decreed declaring that they are owners in possession as cosharers to the extent of 32 kanals 9 marlas land out of 97 kanals 8 marlas joint land in suit and decree dated 2.1.1991 and consequent mutation no. 3373 are null and void and not effective against the rights of the plaintiffs to the extent of 9 kanals 3 marlas land which is in excess of share of defendants no. 1 and 2. 3373 are null and void and not effective against the rights of the plaintiffs to the extent of 9 kanals 3 marlas land which is in excess of share of defendants no. 1 and 2. Consequently, relief of permanent injunction restraining defendants from alienating the suit land in excess of their share as now determined, is also granted. ----------------