l Appeal No 61 of 1951
Appeal from the Judgment and Decree dated the 10th November 1944
 of the High Court of Judicature at Lahore in Civil Regular First Appeal No 259 of 1942 arising out of the Judgment and Decree dated the 29th July 1942 of the Court of the Extra Assistant Settlement Officer and Assistant Collector of the 61 First Grade as Senior Sub Judge Gurgaon in Suit No 35 of 1940 41
Dr Bakshi Tek Chand Ram Nath Chadha and Ganpat Rai with him for the appellants
Naunit Lal for respondents Nos 1 3 7 to 11 and 13 to 19
April 21
The Judgment of the Court was delivered by GHULAM HASAN J
This appeal is brought against the judgment and decree dated November 10 1944 of the Lahore High Court Sir Trevor Harries C J and Mr Justice Mahajan the present Chief Justice of this Court reversing the judgment and decree of the Assistant Collector First Grade Gurgaon as Senior Subordinate Judge and dismissing the plaintiffs appellants  suit
Dalmir Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals
Alif Khan was the son of Amir Khan
The present dispute is between the descendants of the five branches of the family
The suit was brought by the descendants of Dalmir against the descendants of Dilmor Cbhinga Alif Khan and Sharif Khan
To this suit were also impleaded as defendants some of the descendants of Dalmir
The plaintiffs claimed a declaration that they along with defendants Nos 17 to 19 are full owners in possession of 819 Bighas 19 Biswas land situate in village Manota Tehsil Ferozepore Jhirka
in the Gurgaon District that the defendants Nos
I to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 Bighas 19 Biswas possessed by them without payment of land revenue
The aforesaid defendants it was alleged were bound by the terms embodied in the agreement dated September II 1861 in the Wajib ul arz of that Settlement and repeated in subsequent Settlements which debarred them from any right to
claim partition
Defendants Nos
I to 16 who are the contesting defendants pleaded in defence that the plaintiffs along with the pro forma defendants Nos 17 to 19 were recorded in revenue 62 papers as owners of 15th share in the land in dispute while the contesting defendants were recorded as owners of the remaining 45th share and as such they were entitled to claim partition
The defendants denied that any agreement or condition in the Wajib ul arz restricting their right to partition was binding after the expiry of the term of the Settlement and contended that it could not operate as a bar to their claim to partition
The Assistant Collector trying the suit as a Civil Court under section 117 of the Punjab Land Revenue Act Act XVII of 1887 decreed the claim
He held that the contesting defendants were entitled only to get produce of 140 Bighas and 19 Biswas of land in their possession without payment of land revenue and had no interest in the remaining land
This decree was reversed on appeal the High Court holding that the defendants are entitled to 45th share as proprietors that the original agreement repeated in subsequent Settlements was binding on the parties so long as the Settlements were in force that it ceased to have any effect after the expiry of the Settlements and that the renewal of its terms in the Settlement of 1938 39 was not binding as they were not agreed to by the contesting defendants
The learned Judges held that the judgment D 4 dated June 15 1893 of the Chief Court of Punjab inter parties which held that the prohibition of partition contained in the Wajib ul arz did not survive the expiry of the period of the Settlement was binding upon them
They took the view that the contesting defendants being
proprietors the right of partition was inherent in their right of ownership
As a result of these findings the suit was dismissed
We have heard Dr Tek Chand learned counsel for the appellants in support of the appeal at length but we are of opinion that there is no force in the appeal
The parties are Meos and the land in dispute is situate in village Manota in Tehsil Ferozepore Jhirka in Gurgaon District
According to the Gazetteer of Gurgaon District 1910 the Meos owned nearly the whole of the Ferozepore Tehsil and various other villages in Gurgaon
They are divided into several sub tribes and these sub tribes possess a strong feeling of unity and the 63 power of corporate action
It was stated that  in the mutiny the members of each sub division generally acted together and district officers are advised to keep themselves informed of the names and characters of the men who from time to time possess considerable influence over their fellow tribesmen P 60
The documentary evidence regarding the title to the property in dispute ranges over a period of four Settlements each Settlement being for a period of thirty years
The first Settlement was made in 1839 42 the second in 1872 1879 the third in 1903 08 and the last in 1938 39 which is the current Settlement
The village was assessed to annual revenue of Rs 323 for the period of 30 years from 1246 to 1275 Fasli corresponding to 1839 1862 AD which was made payable by Dalmir Lamberdar who is described as sole owner
The Settlement papers were however lost during the mutiny and after taking fresh measurements the settle  ment papers were completed
Alif Khan Dalmir and Dilmor signed what is called an agreement binding them by all conditions provisions and declarations made at the time of the Settlement P 12
It is common ground that the property was originally granted in 1822 A D to Dalmir by Nawab Ahmad Bakhsh Khan Rais of Ferozepore Jhirka
The grant is not in writing and there is no contemporaneous record which could throw any light on its terms
Dalmir claimed to be the sole grantee with full proprietary rights
A number of documents are attached to the Settlement record of 1863
They are important as showing how the property was dealt with by the Settlement authorities from time to time and the state of the revenue records
The earliest document on record appe ars to be an agreement dated September 28 186 1 which is incorporated in paragraph 18 of the Wajib ul arz of village Manota
It says that the tenure of the village is zamindari
Dalmir is entitled to profit and liable for loss in respect of the entire village
The other biswadars are owners of the produce of the land cultivated by them but they pay no revenue
This it is stated is the benefit they enjoy P 35  D II
This document is signed in token of verification by Dalmir Lamberdar 64 Dilmor Alif Khan Biswadar and Phusa Biswadar who ire described as proprietors
Phusa we are told is the alias of Chhinga
There is a report of Mr John Lawrence later Lord Lawrence Settlement Officer referred to in the Gazetteer which says that the arrange ment then in vogue was that a few owners shared the profit and loss of the land revenue and the others were exempted from responsibility
Manota was one of the few villages which continued to follow the system P 179
Paragraph 2 of the Wajib ul arz which relates to the mode of partition after stating the area of the village as 837 Bighas and 9 Biswas says When we the co sharers want to partition it we ourselves will do so of our accord in accordance with our shares shown in the Khewat papers or through the village Patwari in thepresence of Panchayat of the brotherhood
The new abadi cultivation of new land will be made with the consent of all the biswadars
One biswdar is not competent to make a new abadi
D 10
P 4 is a statement showing apportionment of Jama ie Khewat money in the village
After stating that the Settlement of the village was made in the name of Dalmir sole owner and that he alone was entitled to profit and liable for loss it goes on to say that Alif Khan son of Amir and Phusa son of Chhinga and Dilmor having cultivated a specified area of land be
came owners of the produce of the land without payment of rent and also became entitled to profit and liable for loss
Paragraph 10 of the Wajibul arz contains an agreement about trees
It shows that the trees standing in the house or field of the owner belong to him and he is competent to plant and cut them
So far as the occupancy tenants are concerned the trees standing in their houses also belong to them as they cultivate land but Dalmir alone had the right to cut or sell them
These are all the material documents pertaining to the Settlement record of 1863
We now come to the Settlement record of is an important document
Paragraph I which deals with the history of the village is reproduced below  Fifty two years ago in Sambat 1880 Dalmir Caste Meo Got Sogan along with Dilmor and Chhinga his real brothers took possession of the area of this village with the permission of Nawab Ahmed Bakhshi Khan Sahib
Rais of Ferozepore who granted him a Biswadari estate without payment of any Nazrana in lieu of the services rendered by him and made this desolate tract abad
He along with his brothers jointly remained in possession thereof and enjoyed profit and bore loss
After him Amir Khan became abad in the village and along with us proprietors remained in possession
Accordingly we the proprietors got his name entered as a Biswadar at the time of the Revised Settlement
After him Sharif Khan son of Ghariba who was also a collateral came to this village in Sambat 1916 and remained in possession along with us proprietors
Accordingly we got his name also recorded along with ours on the 14th September 1863
We have up to this day been joint owners
This village has never been partitioned
Shares are given in the Khewat papers
 This document shows that although the name of Dalmir is mentioned as being the sole grantee by virtue of the services rendered by him to the Nawab his two brothers also were in joint possession with him
Not only this but Amir Khan and Sharif Khan who are both collaterals also had joint possession of the village
They are all described as proprietors and their names are recorded as joint owners
The authenticity of this documentisbeyondquestion
It out sat the root of the theory of Dalmir being the sole owner
It is true that Dalmir was mentioned as the sole owner in D 4 but the grant was treated by Dalmir himself as being the joint property of his two brothers and the two couaterals whether or not it was originally intended for the benefit of the family as understood in its widest sense
Paragraph 5 of the Wajib ul arz relating to the tenure of the village and the mode of payment of revenue 9 66 says that the village is bilijmal joint and that the sons of Dalmir shall continue to pay the Government revenue in respect of their own shares as well as the shares of the sons of his two brothers and the shares of the collaterals
The reason given is that no money is taken from the said co sharers on account of relationship
P 15
This statement is consistent only with joint ownership
Paragraph 7 of the Wajib ul arz also describes the tenure as Zamindari bilijmal and Repeats the statement that the other co sharers of Dalmir do not pay any rent or Jama in respect of the land cultivated by them on account of their relationship
No single sharer has the right to reclaim the Banjar area without the consent of all the proprietors P 19
This Wajib ul arz is verified by the proprietors tenants Bhandadars a village servant to whom cultivation is allotted rent free Kamins menials and the inhabitants of the village
It is admittedly signed by the ancestors of the parties P 22
The Khewat and the Khatauni P 31 prepared during the Settlement both record the five branches of the family as being in possession of a 15th share each
A similar entry is to be found in the Khatauni D 18
It appears that during the currency of this Settlement two suits for partition were filed in the Revenue Court but the partition was not allowed P 5
Coming to the Settlement of 1903 08 we find a Statement in clause 3 of the Wajib ul arz D 13 that the descendants of Dalmir alone could get the land partitioned in five equal shares but the descendants of the other four co sharers who were cultivating land without payment of revenue owing to non rendition of account in respect of profit and loss of their respective shares could not have the land partitioned
 Lastly we come to the Jamabandi of 1937 38 P 1
This shows that all the five branches were entered as being in possession of equal shares
Mehrab grandson of Dalmir and one of the plaintiffs who gave evidence as P W 5 admitted that defendants 67 Nos
I to 16 were shown as proprietors in the Jamabandi but he never raised any objection to it
He also admitted that Mehar Singh grandson of Sharif Khan sold his half share to Chhote Khan and Bhola his coplaintiffs and that they did not challenge the same
We may now refer to the civil litigation which started in 1891
It arose upon the rejection of the applications for partition made by Alif Khan and Sharif Khan on September 24 1890 by the Assistant Collector
Alif Khan filed a suit against the descendants of the three brothers and the descendants of Sharif Khan
In the plaint D 1 he claimed a declaration of 15th share of the entire village
The sons of Dalmir denied the claim
In their written statement B 2 they alleged that in previous proceedings they had deniedthe plaintiffs  right to partition and that the defendants had been in adverse possession of the land and that the plaintiffs and others had been cultivating land as Bhandadars village servants
The Subordinate Judge decreed the claim D 3
This decree was upheld by the Divisional Judge but the judgment is not on record
In second appeal the Chief Court amended the decree by declaring that the plaintiff was entitled to 15th share in the village to be enjoyed subject to the qualifications and restrictions set forth in the Khewat and the Wajib ul arz which do not permit of his obtaining partition while the present Wajib ul arz was in force
This decree was made upon the admission made by the defendants in the course of the arguments
Paragraph 8 of the Wajib ul arz of 1877 D 12p
16 which was the subject of conflicting interpretation by the parties was interpreted by the Chief Court to mean that its effect was to prohibit general division among the co sharers while the Wajibul arz was still in force
They held that the five sons of Dalmir could separate their shares inter se but not the other co sharers
We are of opinion that this judgment which is inter partes finally set at rest the controversy between them by declaring that the parties were joint owners holding equal shares and constitutes res judicata
The judgment is also in conformity with the true effect of the documentary evidence on the 68 record
No doubt the name of Dalmir was entered
in some documents as the sole owner but that entry by itself is not conclusive and must be read in conjunction with the other entries in the Settlement record
Dalmir may have been the original grantee but his own conduct shows that he did not regard himself as absolute owner to the exclusion of his own brothers
Indeed according to the entry he even treated his collaterals on an equal footing
His description as sole owner in the circumstances carries no value
Whatever may have been the position at the time of the original grant the subsequent conduct of the parties unmistakably shows that all the five branches were treated as owners in equal shares
Dalmir as the lamberdar was made responsible for the payment of the entire landrevenue
He was entitled to profit and was responsible for loss
The others were given less land and were exempted from payment of rent or revenue on account of relationship
This arrangement appears to have been fairly general in those days as appears from the report of Mr later Lord Lawrence Settlement Officer re ferred to above
The arrangement was that  a few owners shared the profit and loss of the land revenue assessment while the others were exempted
The Government was primarily interested in the payment of the revenue and they apparently found it more convenient to hold the head or the most influential member of the family as responsible for payment of the entire revenue leaving it to him to make such arrangement among his co sharers as he thought fit
In later Settlements the owners accepting responsibility for the payment of the land revenue did not find it profitable and the system gradually disappeared
Lord Lawrence remarks that at the third Settlement the number of villages which still continued the system was reduced to three and one of these was Manota in Ferozepore Tehsil page 179
This accounts for Dalmir being called the sole owner and being made responsible for payment of Government revenue
By section 44 of the Punjab Land Revenue Act an entry made in the record of rights or in an annual record shall be presumed to be true until the contrary 69 is proved
That entries in the Jamabandies fall within the purview of the record of rights under section 31 of the Act admits of no doubt
Section 16 of the old Act XXIII of 1871 laid down that entries in the record of rights made or authenticated at a regular Settlement shall be presumed to be true
We are satisfied that the materials on the record taken as a whole justify the view which has been taken by the High Court that the contesting defendants are joint owners and not mere cultivators who are not entitled to claim partition of the property
The judgment of the Chief Court also recognized the proprietary right of the defendants but qualified it by the declaration that so long as the Settlement was in force they were not entitled to partition by reason of their agreement recorded in the Settlement papers
The Settlements of 1877 and 1908 09 have ceased to operate and the entry in the current Settlement of 1938 39 having been made under the orders of the Collector has no value when the contesting defendants did not agree to its being incorporated
The previous agreement was not one for perpetuity but for a limited period only and there is no reason in law why the prohibition against partition should be now enforced against the contesting defend
It has been held in a number of cases that the entry regarding agreement in a Wajib ul arz holds good during the period of the Settlement in which it is made and becomes inoperative when the Settlement has come to an end Hira and others vs Muhamadi and Other8 1 Allah Bakhsh and Others
Mirza Bashir uddin and Others 2 and Lieut
Chaudhri Chattar Singh vs Mt Shugni and Another 3
We agree with the High Court in holding that partition is a right incident to the ownership of property and once the defendants are held
as co owners their right to partition cannot be resisted
It was contended by Dr Tek Chand that the appellants had acquired title by adverse possession over the defendants  share for more than 56 years
This plea was raised in the plaint but evidently it w as not pressed 116 PR 1915 P 89
21932 LITRn
3 AIR 194 Lah
70 for no issue was framed nor any finding recorded by the trial Court
This point is not taken even in the grounds of appeal to this Court
The plea has no substance and was rightly rejected by the High Court on the ground that possession was under an arrangement between the co sharers
and no question of adverse possession could arise under the circumstances
We hold that there is no force in this appeal and dismiss it with costs
Appeal dismissed


Summary:
Held that an entry regarding agreement in a Wajib ul arz holds good during the currency of the Settlement and does not survive the expiry of the period of Settlement
Hira and Others vs Muhamadi and Others 16 PR 1915 at P 89 Allah Bakhsh and Others vs Mirza Bashir ud Din and Others and Lieut
Chaudhri Chattar Singh vs Mt Shugni and Another AIR referred to