IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 415 of 2002. Date of decision: 23.12.2010. Mangat Ram ….. Appellant. Vs. Gulat Ram (since deceased) through his LRs Jagdeep Kumar & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. Ajay Kumar, Advocate. For respondents Nos. : Mr.G.D. Verma,Sr. Advocate 1(a) to (e) with Mr. B. C. Verma, Advocate Sanjay Karol, J.(Oral. This is the plaintiff’s regular second appeal filed under Section 100 of the Code of Civil Procedure, 1908. Plaintiff Mangat Ram filed Civil Suit No. 7/1 of 99/95 against Gulat Ram (contesting defendant No.1/respondent No.1), Jaishi Ram (defendant No.2/respondent No.2) and legal heirs of his brother Rai Singh (defendants No. 3 to 7/respondents No.3 to 7). In terms of judgment and decree dated 29.11.1999 the same stands decreed by Sub Judge, Jubbal, Distt. Shimla, H.P. and Civil Appeal No. 112-S/13 of Whether the reporters of the local papers may be allowed to see the Judgment? 2 1999 filed by Gulat Ram stands allowed by Addl. District Judge, Shimla, Circuit at Rohru vide impugned judgment and decree dated 16.7.2002. 2. Consequently this is the plaintiff’s appeal assailing the judgment and decree of reversal passed by the lower Appellate Court. During pendency of the appeal, Sh. Jaishi Ram expired and his legal heirs are on record. 3. Certain facts are not in dispute. S/Sh. Mangat Ram, Gulat Ram, Jaishi Ram and Rai Singh were real brothers. Their father Prithoo Ram owned certain movable and immovable properties in the revenue estate of District Shimla. Prithoo Ram expired sometime in the year 1955- 56. His sons, as legal heirs alone inherited his estate. Land was developed and apple trees were planted on part of the estate. Suit land i.e. khasra Nos. 363/1 and 360/1, in the said revenue estate, comprised part of the estate. It is in dispute that in the year 1961, Gulat Ram acquired the age of majority, but it is not in dispute that he served the Indian Army. 4. It is the case of Mangat Ram supported by Jaishi Ram, that estate of Prithoo Ram stood partitioned sometime in the year 1961. This fact 3 was recorded in writing on 22.10.1961. In terms thereof, part of the suit land i.e. khasra No. 363/1 stood allotted to Jaishi Ram, which thereafter he exclusively owned and possessed. Till the year 1972-74 remaining land continued to be owned and possessed by Mangat Ram, Gulat Ram and Rai Singh when again it was further partitioned and consequently remaining suit land i.e. khasra No.360/1 stood allotted to Mangat Ram. He owned and possessed the same to the exclusion of the other two brothers. 5. It is the case of Gulat Ram that estate of Prithoo Ram was never partitioned. An arrangement only for cultivating the land was worked out between the parties. No partition by metes and bounds took place. Partition, if any, was to be done after considering the share holdings and balancing the equities between the parties. Since the other brothers failed to do so, he exercised his legal right of getting the estate partitioned under the provisions of the Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as ‘the Act’). On 29.10.1993, authorities under the Act passed appropriate orders of partitioning the property 4 and possession of the suit land i.e. Khasra Nos. 360/1 and 363/1 was handed over to him with the execution of warrant of possession. 6. It is also not in dispute that on 26.7.1993, Gulat Ram filed Civil Suit No. 119/1 of 1993 titled as Gulat Ram vs Jaishi Ram etc. praying for relief of injunction. Jaishi Ram and Mangat Ram were sought to be restrained from interfering with the possession of Gulat Ram on Khasra Nos. 360/2 and 363/1 situated in Chak Raika, Tehsil Jubbal. 7. It may be noticed that on the said date Gulat Ram was not in possession of the suit land. It is not in dispute that it was during the pendency of this suit that orders passed by the Revenue Officer (Kanungo), in the partition proceedings initiated by Gulat Ram, that the Asstt. Collector Ist Grade (Partition) approved partition and possession of the suit property was handed over to Gulat Ram. 8. It is also not in dispute that Civil Suit No. 7/1 of 1999/95 was filed by Mangat Ram on 31.10.1995. Cause title of the suit and the prayer clause reads as under:- Cause title 5 “Suit for declaration to the effect that the mode of partition dated 3.5.93 and actual partition order dated 29.10.93 are against the statements of the plaintiff and profroma defendants before the A.C. Ist Grade (Partition) and against the compromise dated 14.10.90 arrived at between the parties during the above partition proceedings. No fresh partition could be ordered in view of the private partition between the parties long before which had been acted upon also. As such the partition and the mutation according to the said partition order is the result of collusion between the defendant No.1 and the settlement officials effecting and ordering the said partition and as such not binding upon the plaintiff and profroma defendants. The suit is for injunction also restraining the defendant No.1 not to interfere in the possessions of the plaintiff and profroma defendants which possession is according to the private partition and improvements effected. Prayer clause It is, therefore, prayed that the suit of the plaintiff may kindly be decreed to the following effect:- a) No partition could be effected between the parties by the settlement officials in view of the 6 private partition which had taken place already between the parties as stated above; b) No partition could be effected in view of the compromise between the parties before the Settlement Tehsildar Mr. Bhatnagar as stated above and as shown by the statements of the parties on the file; c) The partition proceedings and the mutation No. 13 & 15 dated 19.7.95 are without jurisdiction, illegal and not binding on the plaintiff and the proforma defendants; d) The defendant No.1 be restrained from interfering in the possession of the plaintiff and proforma defendants on the basis of the above illegal partition proceedings and the above mutation; e) Any other relief to which the plaintiff and proforma defendants may be found entitled to may also be granted along with costs of the suit.” 9. In the instant suit, trial Court framed the following issues: 7 1. Whether the plaintiff has become owner of land measuring 20-14 bighas of Chak Raika and 0-7 bighas in Chak Sarot, as alleged? Is (sic.) so, is this land not liable to be partitioned again? ..OPP 2. Whether the plaintiff is entitled to injunction as prayed for? …OPP 3. Whether the order dated 19.7.1995 is without jurisdiction, illegal null and void? …OPD 4. Whether the suit is properly valued? If not what is the correct value? …...OP Parties 5.As the plaintiff suppressed material facts? Is (sic.) so, is he not entitled to the discretionary relief from the Court? …OPD 6. Relief. 10. Trial Court held that parties had entered into a private family partition which was acted upon and parties were put in possession of their respective shares in the land. In the partition proceedings, pending before the Competent Authority under the Act, parties had made a statement that there was no need for any kind of regular partition. In spite of the same authorities went ahead and passed orders partitioning the land. Consequently authorities erred in partitioning the suit land. 8 11. In terms of the impugned judgment and decree, lower Appellate Court has reversed these findings. 12. Appeal was admitted on the following substantial question of law: “Whether the first appellate Court has gravely erred in setting aside the well reasoned judgment of the trial Court by mis-reading and mis-interpreting the oral and documentary evidence on record more specifically Ext. P-2 by holding that there was no family partition and the partition affected by the revenue authority is in accordance with law? 13. Mr. Ajay Kumar, learned counsel for the appellant has made the following submissions;(i) long before initiation of partition proceedings by Gulat Ram before the competent authority under the Act, suit land stood partitioned by the parties by way of family partition; (ii) which was acted upon and parties put into possession of their respective portions and share holdings; (iii) parties agreed not to proceed with the partition proceedings (iv) in any event, before the competent authority Mangat Ram alongwith other parties had, only agreed to 9 give the land for the purposes of settling the equities without disturbing their settled possession. 14. Per contra, it is argued by Mr. G. D. Verma, learned senior counsel that (i) plaintiff’s suit is barred by limitation; (ii) contrary to the claim of Mangat Ram no family partition ever took place between the parties. At best it was a family arrangement only for the purposes of cultivating the land. No partition by metes and bounds ever took place, nor were the statutory provisions of the Act complied with; (iii) Mangat Ram accepted the orders passed under the Act. He did not exhaust his remedies of filing a statutory appeal as stipulated under the Act. Instant suit filed after a period of 2 years of the passing of the order by the competent authority is nothing but a counter blast to the suit filed by the plaintiff; (iv) There was no lapse in following the procedure in conducting proceedings of partition. None have been pleaded nor proved. Consequently plaintiff is estopped from filing the present suit. 10 15. In support of their contentions learned counsel have invited my attention to various judicial pronouncements. 16. Order passed by the Revenue Officer on 29.10.1993 is Ext.P-1. Mutations on the basis of the said order, recording Gulat Ram to be owner in possession thereof, are Ext.P-3 & Ext.P-4. Admittedly plaintiff has not assailed the same by taking recourse to remedies provided under the Act. Ext.P-2 is the statement made by the parties, before the competent authority under the Act, to the effect that by way of family partition property already stood partitioned and therefore they do not want to get the land partitioned from the Revenue Court. Hence application for partition be dismissed. Revenue record i.e. jamabandies Ext.P-6 to P-19 records the fact that even though suit land was jointly owned by all the four brothers but only Mangat Ram and Jaishi Ram were possessed of the same. However these entries pertain to the period prior to Gulat Ram being put in possession thereof in compliance with the provisions of the Act. 11 17. From the pleadings of the parties, it is not in dispute that in the year 1972-73 Gulat Ram was serving the Indian Army. He was away from home. 18. Ext.P-2, Ext.P-6 to Ext.P-19 do not reflect the fact that in a private partition, land stood divided by metes and bounds. There is no dispute that parties had also made a statement before the Revenue Authorities to the effect that they do not want to pursue the matter. However subsequent events stand explained by Gulat Ram. According to him, statement was made on the understanding that equities between the parties would be settled and land would be partitioned mutually. Since Mangat Ram and Jaishi Ram refused to do so, therefore no order was passed on the basis of the statement (Ext.P-2)and partition proceedings continued. Now there is nothing on record to show that this stand of Gulat Ram is either false or contrary to the record. In fact there is statement of Mangat Ram (Ext.DX) and Jaishi Ram (Ext.DZ) (made in Civil Suit No.119/1 filed by Gulat Ram)wherein they admit having agreed to 12 divide their land for the purposes of settling the equities between the parties. 19. Prior to passing of the order by the competent authority, no partition by metes and bounds ever took place between the parties. Court below rightly came to the conclusion that private partition was actually an arrangement for the purpose of cultivation of land. It was not a final partition of the land by metes and bounds so as to effect severances of joint holdings. Had it been so, parties would have definitely got this fact recorded in the revenue record and resorted to the mandatory provisions of Sections 35 and 135 of the Act. Act is a complete code in itself. It provides procedure for preparing revenue record. Under Section 35, any person acquiring right in an estate as a land owner is required to report the same to the Patwari of the estate, who in turn, is obliged to enter this fact in the register of mutations maintained by him. Whenever there is partition without intervention of the Revenue Officer, Private party is required to apply to the Revenue Officer for order of confirmation/affirmation of partition. The Act 13 provides that in such like cases Revenue Officer is mandatorily required to inquire the fact as to whether in fact partition was ever effected upon or not. Revenue Officer is required to comply with the statutory provisions laid down under Chapter 9 of the Act. Admittedly in the instant case parties have not resorted to such measures. Partitions entered into in the year 1961 and 1972/74 is no partition in the eyes of law. 20. This Court in Leetho vs. Chamelo & Ors. 2001 (2) Shim.L.C. 238, while dealing with the question of jurisdiction of the Civil Court to entertain a suit filed by the plaintiff, assailing the order, of partitioning the land, passed by the competent authority, has specifically held that partition, whether by way of family settlement or family arrangement or by Revenue Officer by giving effect to the family partition or settlement by metes and bounds, should be such which may conclusively establish the respective shares of the parties so as to stop further dispute in between them. Mere arrangement in regard to cultivation of land cannot be termed as partition though such 14 arrangement at the time of final partition by Revenue Officer should be given due consideration in order to maintain possession of the parties intact. 21. Significantly while passing the order in question, Revenue Authority has kept this principle in mind and suit land pertaining to only two khasra numbers has been ordered to be handed over to Gulat Ram as his share in the estate of his father. Significantly possession of the parties qua other joint land has not been disturbed. This in fact is in consonance with the statements of the parties and more particularly that of Mangat Ram, made before the Revenue authorities to the effect that they were ready to distribute the land for settlement of equities amongst the share holders. 22. While considering the provisions of Section 123 of the Punjab Land Revenue Act, which are paramateria with Section 135 of the Act, Punjab and Haryana High Court in Chander Bhan vs. Hari Ram & Ors. 1996 (1) Shim. Law Journal, 696 has held that requirement of reporting the factum of private partition to the revenue authorities is must. 15 23. In Janku & Ors. vs. Nagnoo & Ors., AIR 1986 Himachal Pradesh 10, in almost similar circumstances where on the basis of respective possession of the parties land revenue was not assessed separately in the revenue record (jamabandi), Court repelled the contentions of the parties that the land stood partitioned by way of private partition. 24. In the instant case also, as is evident from the revenue record Ext.P6 to Ext.P-19, it cannot be contended that the land between the parties stood partitioned by metes and bounds or assessed to separate land revenue. Thus it cannot be contended that the Court below erred in misreading or misinterpreting the oral and documentary evidence on record while holding that no private family partition ever took place between the parties. 25. There is no dispute that in the partition proceedings initiated by Gulat Ram under the Act, order for mode of partition was passed by the authorities on 23.5.1993 which was affirmed by the competent authority on 29.10.1993. Admittedly, for assailing the same plaintiff has not resorted to the statutory 16 mechanism provided for under the Act. Limitation for assailing the same, as provided for under Article 100 of Limitation Act, 1963, is one year. Thus keeping in view the ratio of law laid down by the Apex Court in Tundal (dead) by LRs and others vs. Munshi & Ors., 2006 (12) SCC 245, suit of the plaintiff, in any event was barred by the prescribed period of limitation. I am conscious that no issue on the question of limitation was framed, but however keeping in view the ratio of law laid down by the Apex Court in M. K. Ranganathan & anr. vs. Govt. of Madras & Ors., AIR 1955 SC 604, this legal issue is being considered. 26. Perusal of statement of Mangat Ram recorded in the instant case would show that even at the time of private partition no demarcation of the land had taken place. He has also admitted that even after the death of his predecessor-in-interest, on the joint holdings apple trees were planted between the years 1956 and 1960. 27. Alleged admission of family partition, as is sought to be urged on the strength of Ext.P-2 is misconceived in law. There is 17 sufficient explanation on record with regard to the said statement and as is evident from the testimony of Mangat Ram, parties had agreed for further division of land for adjusting equities between the parties. A co-sharer in possession of separate parcel of land, under some arrangement, would not depict partition by metes and bounds. Gulat Ram continued to be reflected as co-owner. 28. Reliance on the decision rendered by the Punjab & Haryana High Court in Arjan Singh vs. The Financial Commissioner, 2001 (1) Civil Court Cases 645 is misconceived in law. Court below has sufficiently dealt with the same in para-3 of the impugned judgment. I see no reason to interfere with the findings. 29. Mr. Verma has further contended that jurisdiction of the Civil Court was barred keeping in view the fact that question of title was not in dispute in the instant case. In view of the aforesaid discussion, I am not going into the question at all. Nothing has been shown from the record that the competent authority had passed the orders partitioning the property in violation of principles of natural justice or 18 that there was non adherence of any of the procedural provisions. No procedural lapse has been committed by the authorities while passing the order. 30. I may add that Mr. Ajay Kumar, learned counsel for the appellant has referred to and relied upon the decisions of the Apex Court in State of Rajasthan vs. Harphool Singh (dead) through his LRs, (2000) 5 SCC 652 and Ramesh Gobindram vs. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897. Mr. Verma has also relied upon the ratio of law laid down in Leetho (supra). Only relevant decisions have been dealt with. Substantial question of law is answered accordingly. 31. For the aforesaid reasons, present appeal without any merit is dismissed. (Sanjay Karol) Judge 23rd December, 2010 (rana)