JUDGMENT Hon’ble Pankaj Naqvi, J.—This is a plaintiffs’ second appeal against the judgment and decree dated 2.4.2003 in civil appeal No. 36 of 2001 and 27.11.2001 passed in Original Suit No. 150 of 1995 whereby the suit for injunction filed by the plaintiffs-appellants has been dismissed. 2. The plaintiffs, six in number, filed a suit for injunction alleging that they alongwith defendant No. 4 are the owners in possession of plot No. 456 (2 bigha 12 biswa 6 dhur) (plot in dispute) from one Raj Bahadur Singh (father of defendant No. 4) pursuant to a sale-deed dated 20.8.1993, for a sale consideration of Rs. 1,17,678/- so that defendant No. 4 i.e. Ravi Shanker has 1/7 share and the remaining 6/7 share belongs to the six plaintiffs; subsequent to the sale-deed a partition was effected wherein 6/7 share of the plaintiffs was earmarked and similarly, 1/7 share was earmarked in favour of defendant No. 4 and they are in possession over their respective shares; the defendants have no concern with the plot in dispute and are threatening to raise constructions over the same; Raj Bahadur Singh-the vendor did not execute any sale-deed in respect of ½ share of plot No. 456 in favour of defendant No. 4, nor did he execute a sale-deed of ½ share of the said plot in favour of the plaintiffs, nor did he deliver the possession or took sale consideration in respect of ½ share and, on the contrary, the sale-deed was executed of the entire plot in dispute, in respect of 6/7 share of the plaintiffs for a sum of Rs. 1,00,866.96 p., and of 1/7 share of defendant No. 4 for a sum of Rs. 16,811.14 p. It was further stated by an amendment in the plaint that earlier a registered agreement to sell dated 17.5.1993 was executed in respect of plot No. 455 area 9 biswa and plot No. 456 in respect of ½ share for a sum of Rs. 88,000/- between the mother of the plaintiffs i.e. Smt. Lakhraji and Raj Bahadur-the vendor and Rs. 24,400/- was paid as earnest, and that neither defendant Nos. 88,000/- between the mother of the plaintiffs i.e. Smt. Lakhraji and Raj Bahadur-the vendor and Rs. 24,400/- was paid as earnest, and that neither defendant Nos. 1 to 3, nor wife of defendant No. 1 i.e. Smt. Meraji got a sale-deed executed in their favour in respect of ½ share of plot No. 456 either from Raj Bahadur Singh or from defendant No. 4 and in case there is any such sale-deed, then the same is forged and a void document, and the defendants be restrained from interfering in the peaceful possession of 6/7 share of the plaintiffs-appellants. 3. The suit was resisted on behalf of defendant No. 4 primarily on the ground that although Raj Bahadur (father of defendant No. 4) was the owner of plot No. 456 (area 2 bigha 12 biswa 6 dhur), but the aforesaid sale-deed dated 20.8.1993 in respect of ½ share of the aforesaid plot No. 456 (1 bigha 6 biswa 3 dhur) was executed in favour of defendant No. 4 on the southern side. The said defendant No. 4 also denied the claim of plaintiff-appellants that they are the owners of 6/7 share of the entire area of plot No. 456. It was further pleaded on his behalf that defendant No. 4 had executed a sale-deed in respect of his ½ share in favour of defendant Nos. 1 to 3 and one Smt. Meraji - wife of Mata Prasad for a sale consideration of Rs. 80,000/- on 1.7.1994. 4. Both the Courts below held that it was not a case where Section 45 of the Transfer of Property Act were attracted, as the sale-deed dated 20.8.1993 refers to an agreement dated 17.5.1993 executed between the mother of the plaintiffs and Raj Bahadur Singh for purchase of half share of plot No. 456 (1 bigha 6 biswas 3 dhur) for a sale consideration of Rs. 80,000/- and out of which Rs. 24,400/- was paid as earnest, therefore, a contract to the contrary within Section 45 of the Transfer of Property Act had come into existence. Resultantly, the Courts below have dismissed the suit and have held that on the basis of sale-deed dated 20.8.1993 the six plaintiffs are only entitled to half share of plot No. 456 (1 bigha 6 biswas 3 dhur) and the remaining half share belonged to defendant No. 4, on the basis of the sale-deed dated 20.8.1993. 5. Resultantly, the Courts below have dismissed the suit and have held that on the basis of sale-deed dated 20.8.1993 the six plaintiffs are only entitled to half share of plot No. 456 (1 bigha 6 biswas 3 dhur) and the remaining half share belonged to defendant No. 4, on the basis of the sale-deed dated 20.8.1993. 5. The present plaintiffs’ appeal was primarily admitted on the applicability of Section 45 of the Transfer of Property Act. 6. Heard Shri Pradeep Kumar Rai, learned counsel for the appellants and Shri Ashok Kumar Singh, learned counsel for the respondents. 7. Section 45 of the Transfer of Property Act, 1882 reads as under : “45. Joint transfer for consideration.—Where immoveable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.” 8. Section 45 covers three eventualities: (1) where a transfer of property in favour of two or more persons takes place and the consideration is paid out of common fund, then in the absence of contract to the contrary, the interest in the property would be identical as nearly as may be, with the interest to which they were respectively entitled in the fund; (2) where consideration is paid out of separate funds in the absence of a contract to the contrary, the interest in the property would be proportionate to the share of the consideration, respectively advanced; (3) in the absence of evidence as to the interest in the fund, or as to the share, respectively advanced, such persons shall be presumed to be equally interested in the property. 9. 9. The rationale of Section 45 of the Act appears to be that in the absence of contract to the contrary, it is the extent of contribution, which determines the extent of share of the property purchased. 10. A Full Bench of the Lahore High Court in Nanak, the deceased, represented by Umra and others v. Ahmad Ali, plaintiff and Barkat, defendant respondent, AIR 1946 Lah 399 and relying upon (Saiyad) Abdullah v. Ahmad and others, AIR 1929 All 817, has held that in the absence of specification of shares in the sale-deed, the two should be presumed to have purchased the property in equal shares. Similar view has been taken in Durlabhji Dhanjibhai Patel and others v. Competent Authority And Deputy Collector, Surat and others, AIR 1996 Guj 197 : “5. It transpires from the material on record that the sale document in the instant case has not specified the share of each co-owner in the properties purchased by them thereunder. In this connection, a reference deserves to be made to Section 45 of the Transport of Property Act, 1882. It has been provided therein that, in such a case, the share of each co-owner would be equal. Relying on the aforesaid statutory provision, this Court in its unreported ruling in Special Civil Application No. 998 of 1988 decided on 27th June 1988, some portion of which has appeared in 1995 (2) Guj LH (UJ) 18, has held that, in absence of specific mention about shares of co-owners in any sale-deed, all co-owners will have their equal share in the properties thereunder.” 11. The sale-deed dated 20.8.1993 executed between the plaintiff-appellants and Raj Bahadur (father of defendant no,4) nowhere indicates the extent of contribution paid by each co-sharer and rather refers to a sale consideration of Rs. 1,17,678/- But the sale-deed refers to a registered agreement dated 17.5.1993 executed between the mother of the plaintiffs Smt. Lakharaji and Raj Bahadur Singh (father of defendant No. 4) for a sum of Rs. 88,000/- in respect of half share of plot No. 456 only, as contained in the agreement i.e. 1 bigha 6 biswas 3 dhur for which Rs. 24,400/- was advanced as earnest to the vendor - Raj Bahadur. The sale-deed at page 25 refers to a following recital: “fcdzh 'kqnk vjkth dk lV~Vk fnukad 17&5&1993 nLrkost ua0 2379 jftLVªh dk;kZy; Hknksgh esa gqvk gSA” “ 12. 24,400/- was advanced as earnest to the vendor - Raj Bahadur. The sale-deed at page 25 refers to a following recital: “fcdzh 'kqnk vjkth dk lV~Vk fnukad 17&5&1993 nLrkost ua0 2379 jftLVªh dk;kZy; Hknksgh esa gqvk gSA” “ 12. The case of defendant No. 4/respondent No. 4 in para 8 of the written statement was as under: “nQk 8 % & ;g fd Hkwfe la[;k 456 esa 1@2 fgLls dk nLrkost cSukek tkfuo nf{k.k rjQ jdok 1 foxgk 6 foLok 3 /kwj dk jktcgknqj us ge izfroknh jfo’kadj ds gd esa rgjhj fd;k gS tks fd eqrkfod nLrkost cSukek jdok 1 foxgk 6 foLok 3 /kwj ij Hkwfe la[;k 456 esa tkfuo nf{k.k rjQ dkfot n[khy gq;sA” 13. A perusal of written statement of respondent No. 4 would reveal that although he claims to have purchased ½ share of the aforesaid plot No. 456, but there is no pleading as to what was the consideration paid by him to Raj Bahadur - the vendor in respect of the alleged ½ share purchased by him. On the contrary, the recital in the sale-deed dated 20.8.1993 is that the total sale consideration involved in the execution of sale-deed was Rs. 1,17,678/-, whereas in his oral testimony D.W.4 (Ravi Shanker) stated that he had paid a sum of Rs. 58,839/-to Raj Bahadur (father of defendant No. 4). 14. Be that as it may, the oral testimony with regard to payment of consideration of Rs. 58,839/- in respect of ½ share is altogether missing in the sale-deed dated 20.8.1993 and also in the written statement of defendant No. 4/respondent No. 4. Therefore, the oral evidence with regard to payment of consideration of Rs. 58,839/- would be hit by Section 92 of Evidence Act. To dislodge the presumption under Section 45 of the Act, it was imperative for defendant No. 4/respondent No. 4 to have raised a specific plea as regards his contribution for purchase of half share. 15. The view taken by the Courts below that the presumption under Section 45 of the Transfer of Property Act would not be attracted, as a contract to the contrary with the execution of agreement to sell dated 17.5.1993 in respect of ½ share of plot No. 456 between the mother of the plaintiffs’ i.e. Lakhraji and Raj Bahadur had come into existence is based on misreading of evidence. Primarily, the parties to the present proceedings i.e. plaintiffs and defendant No. 4 (appellant No. 4) are not the parties to the earlier agreement which is between the mother of the plaintiff and Raj Bahadur. Raj Bahadur was neither a party in the suit, nor was he examined. 16. Thus, for the purposes of the present case, it is the third part of Section 45 of the Act, which would be attracted i.e. where there is no evidence of the interest of fund or the share respectively advanced, then a presumption arises that such persons are owners of equal share. 17. On the facts of the present case, this Court is of the view that the judgments of the Courts below stand vitiated in law, inasmuch as, it was proved from the evidence on record that the statutory presumption available under Section 45 of the Transfer of the Property Act was applicable, inasmuch as, the extent of contribution of share of each co-sharer had not been defined and rather the total sale consideration to the tune of Rs. 1,17,678/- had been mentioned. The reference of the agreement to sale dated 17.5.1993 in the sale-deed dated 20.8.1993 would be of no consequence, as the sale-deed was not in furtherance of agreement to sell. In case the defendant No. 4/respondent No. 4 was to insist that notwithstanding the sale-deed dated 20.8.1993 he was still the owner of ½ share of the property under the said sale-deed dated 20.8.1993, then he ought to have filed a suit for rectification of the sale-deed dated 20.8.1993. 18. The appeal is allowed with costs through out. The judgments and decree of the Courts below are set aside and the suit of the plaintiffs is decreed with costs. ——————