Civil Misc. No. 1382-C of 2008 and 1 R.S.A. No. 449 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 1382-C of 2008 and R.S.A. No. 449 of 2008 Date of Decision: 01.12.09 Rajinder Singh son of Ch. Mehar Singh son of Natha Singh at present resident of village Akhrota, Tehsil Pathankot, Distt. Gurdaspur. ... Appellant Versus 1. Smt. Parkash Kaur widow of Dewan Singh; 2. Balkar singh son of Dewan Singh; 3. Avtar Singh son of Dewan Singh; all residents of village Shawla, Tehsil and Distt. Gurdaspur. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. R.D. Bawa, Advocate, for the appellant. Mr. Kamaljeet Singh Sidhu, Advocate, for respondent No. 1. Respondents No. 2 and 3, already demised. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 25.11.04, rendered by the Court of Civil Judge (Senior Division), Gurdaspur, vide which, it dismissed the suit of the plaintiff, and, the Civil Misc. No. 1382-C of 2008 and 2 R.S.A. No. 449 of 2008 judgement and decree, dated 15.11.07, rendered by the Court of District Judge, Gurdaspur, vide which, it dismissed the appeal. 2. The facts, in brief, are that, the plaintiff, alongwith Himmat Singh and Malkiat Singh, was the owner in possession of the land, bearing khasra No. 26R/8/2/2/2, measuring 1 kanal 18 marlas, alongwith some other land. It was stated that, on an application, moved by Himmat Singh, for partition of the land, bearing khasra No. 26R/8/2/2/2 and the other land, the same was, ordered to be partitioned, vide order dated 07.08.97. It was further stated that the land, in dispute, was given new khasra No. 26/R/8/5, measuring 1 kanal 8 marlas, falling to the share of the plaintiff. Possession of the land, in dispute, was delivered, to the plaintiff, vide Rapat Roznamcha No. 152, dated 01.01.98, and mutation No. 1894, was also sanctioned, in his favour. It was further stated that, on the day of filing of the suit, the plaintiff, was the exclusive owner of the land, in dispute. It was further stated that after the possession of the land, in dispute, was delivered, to the plaintiff, the defendants, being local residents of village Shawla, illegally and forcibly occupied the same, and constructed their house. It was further stated that, thereafter, the defendants, gradually added number of rooms, to their house, built over the land, in dispute, even though, they had no right or title, to do so. It was further stated that the possession of the defendant, over the land, in dispute, who were related to one another, was unauthorized and illegal, since the day, they trespassed into the same, in the year 1998. The defendants, were many Civil Misc. No. 1382-C of 2008 and 3 R.S.A. No. 449 of 2008 a time, asked to remove the construction and malba, from the land, in dispute, and hand over the vacant possession thereof, but to no avail. Ultimately, a suit for possession, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, was estopped, from filing the suit, by his own act and conduct, as the construction, over the land, in dispute, was raised by them, without any objection, from anybody; that the suit was not maintainable, as status of the parties vis-a-vis, the land, in dispute, was of co-sharers; that the suit was bad for non-joining of necessary parties, as other co-sharers, were not impleaded, as a party to the suit; that the suit was not properly valued, for the purposes of Court fee and jurisdiction, and advalorem Court fee, had not been paid; and that the Civil Court, had no jurisdiction, to entertain and try the suit. It was stated that the suit, was based, on vague allegations and lacked in material particulars, in so far as the appellant, had not disclosed the dimensions and extent of the area, alleged to have been encroached upon by the defendants. It was further stated that the defendants, were co-sharers, in the joint khata, which included the land, in dispute, and khasra No. 26/R/8/2/2/2, measuring 1 kanal 18 marlas. It was admitted that the application for partition of joint land, was moved, in the Court of Revenue Officer, Gurdaspur. It was further stated that the order of partition, passed by the Revenue Officer, was illegal, null and void, and without jurisdiction, in so far as partition proceedings, could not Civil Misc. No. 1382-C of 2008 and 4 R.S.A. No. 449 of 2008 continue, before the Revenue Authorities, as extensive construction and big buildings, including telephone exchange, shops, Schools, residential houses and godowns, etc. were in existence, on the land, in dispute. It was further stated that no consequence could follow from the order of partition, if any, passed by the Revenue Authorities. It was further stated that, the Central Government, had been running the telephone exchange, over the land, in dispute, on lease, since the year 1989. It was further stated that the houses of the defendants, were also, in existence, over the land, in dispute, at the time of moving the application for partition, before the Assistant Collector Grade 1, Gurdaspur. It was further stated that the defendants, being the exclusive owners, were in possession of the land, in dispute. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to possession as prayed for? OPP (ii) Whether the plaintiff is estopped from his act and conduct to file the present suit? OPD (iii) Whether the Civil Court, has no jurisdiction to entertain and try the present suit? OPD (iv) Whether the suit is bad for non-joinder of necessary parties? OPD (v) Relief. Civil Misc. No. 1382-C of 2008 and 5 R.S.A. No. 449 of 2008 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of District Judge, Gurdaspur, vide judgement and decree dated 15.11.07. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 9. An application, under Order 41 Rule 27, read with Section 151 of the Code of Civil Procedure, was also filed, by the appellant, seeking permission, to place, on record, the orders, issuing warrants of possession and copies of mutation Nos. 1884 and 1894, entered on the basis of Rapat Roznamcha, exhibit P1, regarding the land, in question, as additional evidence. It was stated that these documents, could not be inadvertently produced, as per the advice of the Counsel, at the time, the evidence, was led, in the trial Court. It was further stated that these documents, were essential, for the just decision of the case. It was further stated that these documents, formed part of the revenue record, and authenticity thereof, could not be disputed. It was further stated that the additional evidence, was essential, for the just decision of the case. 10. No reply, to the application, under Order 41 Rule 27, read Civil Misc. No. 1382-C of 2008 and 6 R.S.A. No. 449 of 2008 with Section 151 of the Code of Civil Procedure, was filed, but the same, was contested, by the Counsel for the respondents. 11. The Counsel for the appellant, submitted that the respondents, had no right, to challenge the partition proceedings. He further submitted that, even an application, under Order 26 Rule 9, read with Section 151 of the Code of Civil Procedure, was filed, by the appellant, but the same, was dismissed, by the trial Court, without passing any speaking order. He further submitted that the Courts below, were wrong, in coming to the conclusion, that only after the preparation of instrument of partition, that the warrants of possession of the land, in dispute, could be issued, and the possession, could be delivered. He further submitted that the Courts below, were also wrong, in coming to the conclusion, that the possession of the land, was not exchanged, as per the partition effected, in the revenue record. He further submitted that even mutation No.1894, was sanctioned, in the name of the plaintiff/appellant, on the basis of P1, copy of the Rapat Roznamcha No. 152. He further submitted that Naksha Jeem, exhibit P3, and field book, exhibit P4, were prepared, by the revenue authorities. He further submitted that, as per these documents, the plaintiff, was shown, to be in possession of khasra No. 26/8/5, measuring 1 kanal 8 marlas. He further submitted that the Courts below, were wrong, in coming to the conclusion that, in the absence of production and proof of instrument of partition, the partition was incomplete. He further submitted that the report of delivery of Civil Misc. No. 1382-C of 2008 and 7 R.S.A. No. 449 of 2008 possession and mutation, on the basis thereof, clearly proved, the finalization of partition and issuance of the instrument of partition. He further submitted that after the partition, though, the possession, was delivered, to the plaintiff/appellant, yet the defendants/respondents, took forcible possession thereof. He further submitted that the Courts below, recorded perverse findings, in dismissing the suit. 12. On the other hand, the Counsel for respondent No. 1, submitted that the land, in dispute, formed part of joint khata. He further submitted that, since the instrument of partition, was not produced and proved, in the absence whereof, the severance of status of co-sharers, could not be presumed. He further submitted that the application for appointment of Local Commissioner, which was moved, by the plaintiff/appellant, was rightly declined, vide order dated 25.11.04, by the trial Court, but that order, was not challenged in revision. He further submitted that the appointment or non-appointment of the Local Commissioner, did not at all make any difference, as the instrument of partition, had not been proved. He further submitted that the Courts below, were right, in dismissing the suit. 13. First coming to the application, under Order 41 Rule 27, read with Section 151 of the Code of Civil Procedure, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded, hereinafter. In Arjan Singh Vs. Kartak Singla, AIR 1951 (SC), 193, the principle of law, laid down, was to the effect that, Order 41, Rule 27 of the Code of Civil Procedure, is not intended to allow an Civil Misc. No. 1382-C of 2008 and 8 R.S.A. No. 449 of 2008 unsuccessful litigant, to patch up the weak parts of his case, and fill in the lacuna, in the Appellate Court. Under clause I (b) thereof, additional evidence, can be admitted only when the Appellate Court, requires it to enable it to pronounce the judgement or for any other substantial cause. Reception of such evidence should be the necessity of the Court for proper adjudication of the dispute, between the parties. In K. Venkataramiah Vs. Seetharama Reddy, AIR, 1963 (SC), 1526, the principle of law, laid down, was to the effect, that there may well be cases, in which, even though the Court finds that it is able to pronounce judgement, on the state of record, as it is, and so it cannot strictly say that it requires additional evidence, to enable it to pronounce the judgement, but it still considers that, in the interest of justice, something which remains obscure, should be filled up, so that it can pronounce its judgement in a more satisfactory manner. Such a case, will be one for allowing additional evidence for any other substantial cause under Rule 27(1) (b) of the Code of Civil Procedure. All the documents, sought to be produced by way of additional evidence were in the knowledge of the appellant. Why these documents were not produced and proved, at the relevant time, is not known. Had due diligence been exercised, the same would have been produced and proved. After more than 10 years of the commencement of this litigation, if this application is allowed, that would amount to permitting the appellant to fill up the lacuna. In this view of the matter, the application, being devoid merit, must fail and the same is Civil Misc. No. 1382-C of 2008 and 9 R.S.A. No. 449 of 2008 dismissed. 14. Now coming to the appeal, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Undisputedly, the land, in dispute, is a part of the joint khata of the parties, to the lis. The only question, that falls for determination is, as to whether, the partition of the joint khata, was effected. Since the appellant, claimed that, the land, in dispute, had been partitioned, so the onus lay heavily upon him, to prove, this factum. The instrument of partition, could be said to be the most important document, which could prove, as to whether, the partition, had, in fact, been effected and completed or not. The instrument of partition, did not see the light of the day. In Pritam Civil Misc. No. 1382-C of 2008 and 10 R.S.A. No. 449 of 2008 Singh Vs. Jaskaur Singh, 1992, PLJ, 435, a Division Bench of this Court, in para No. 8 of the report, held as under:- “The term “completion of partition proceedings” appearing in Section 121 of the Act says that when partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect be recorded therein. The plain reading of Section 121 provides that instrument of partition is to be prepared after the partition had been completed which means that once the distribution of revenue, rent, etc. had been determined under Section 120 of the said Act partition is complete. The joint status of the parties comes to end once partition order has been passed. Partition is not effective in the absence of instrument of partition. No severance of status of co-sharers takes place in the absence of instrument of partition and delivery of possession of the allotted portion of joint land to parties. The term “completion of partition proceedings as mentioned in Section 121 of the Act came up for interpretation in Hadayat Khan and other Vs. Shahamand and others, AIR, 1924, Lahore, 155, wherein it was held thus: “It means simply that all disputes raised before the Revenue Officer, had been decided by him but up to that date the joint estates remained joint. The parties had not been even inducted into the several shares which it was proposed to allot to them under the scheme of any partition and apparently no formal order of that kind was ever passed. After appeal to the settlement Officer and applications for revision to the Financial Commissioner had been Civil Misc. No. 1382-C of 2008 and 11 R.S.A. No. 449 of 2008 rejected. The Revenue Officer gave order for the drawing up of the deed of partition and the deed of partition was accordingly drawn upon the 1st December, 1905 and in obedience to the provisions of Section 121 of the Land Revenue Act it was provided in that deed that the partition should take effect from Kharif 1905. It is of course quite possible that a partition should be made and possession of the several lots be given and taken and that no formal instrument of partition be prepared in which case no doubt the giving and taking of possession by the several sharers of their several lots would be held to be the date on which the joint holding ceased to be joint and became severally. The present, however, is not such a case. There was no doubt proceedings taken with a view to effect partition long before Kharif 1905 but those proceedings culminated and found their ultimate result and expression in the instrument of partition and that instrument provided that the land should remain joint upto Kharif 1905 and become severality “only in that harvest. From this it follows that even if the sharers took possession of the plots allotted to them before Kharif 1905 their possession upto that date was merely the possession of co-sharers in separate possession of portions of the joint estate.” 15. The aforesaid Division Bench, placed reliance, on Hadayat Khan and other Vs. Shahamand and others, AIR, 1924, Lahore, 155, for the proposition of law, laid down, by it. In Lal Chand (Dead) through LRs Vs. Ganga Ram (Dead) through LRs, 2005 (2), RCR (Civil), 52 , the principle of law, laid down, was to the effect, that it is Civil Misc. No. 1382-C of 2008 and 12 R.S.A. No. 449 of 2008 not only the order of partition, which is necessary to be passed, but also, the instrument of partition, is required, to be prepared. In Ved Parkash Vs. Balram Dass alias Balram Singh, 1994(1), Recent Revenue Reports, 431 (P&H) , it was also held, that a co-sharer, cannot get possession of a specific portion of joint property, by filing a suit for possession only, without getting the land partitioned, in accordance with law. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. Since the instrument of partition, was neither produced, nor proved, it could be said, that no partition of the joint khata, was effected and completed and there was, thus, no severance of joint status of the parties, in respect of the land, in dispute. The findings of the Courts below, in this regard, are correct and stand affirmed. 16. The next question, that arises for consideration is, as to whether, on the basis of report P1, in the Rapat Roznamcha, the possession, was delivered, to the plaintiff, in respect of the land, in dispute, or not. Satnam Singh, PW2, brought the Rapat Roznamcha, dated 01.01.96, copy whereof, is P1, to prove, that the possession of the land, in dispute, was delivered, to the plaintiff. During the course of his cross-examination, it was admitted by him, that Rapat Roznamcha, copy whereof, is P1, had not been attested by Tehsildar or any other superior officer. He further stated that he was not in possession of the case of partition, as also the warrants of possession, issued by the Court of Assistant Collector, Grade I, Gurdaspur, regarding the land, in Civil Misc. No. 1382-C of 2008 and 13 R.S.A. No. 449 of 2008 dispute, and the report made, on the warrants of possession by Halqa Girdawar. He further stated that the entire land regarding which, the delivery of possession, was made, was cultivable and no area was 'Gair Mumkin'. He further stated that, when the possession, was delivered, no telephone exchange building, was in existence, on the land, in dispute, though, residential houses, were in existence, over the land, comprising killa No. 8/4, adjoining the suit land. Bakhshish Singh, PW3, also made a statement, proving P1. He also stated that, no telephone exchange building, existed on the land, at the time of delivery of possession. He also denied the existence of shops, over the land, in dispute. Though he admitted, that on the date of his deposition, the telephone exchange and shops, were in existence, over the land, in dispute. Karnail Singh, PW4, in clear-cut terms, deposed that, telephone exchange, and residential houses, as also School, have been in existence, over the land, in dispute, since 1994-95. This witness, thus, completely effaced the value of the evidence of Satnam Singh, Patwari, PW2, and Bakhshish Singh, PW3. According to the statement of Karnail Singh, PW4, the telephone exchange, School, and residential houses, were in existence, over the land, in dispute, at the time of alleged delivery of possession. However, P1, copy of the Rapat Roznamcha, does not reveal the existence of the building of telephone exchange, residential houses, shops etc. Bawa Singh, PW6, stated that, he was not in possession of any order, vide which, he was directed, to deliver possession of the land, in dispute, in favour of the plaintiff. He Civil Misc. No. 1382-C of 2008 and 14 R.S.A. No. 449 of 2008 could not tell, as to how much land, was cultivable, how much land, was 'Gair Mumkin', and how much of it was abadi. On the other hand, Mehar Chand, Section Supervisor, BSNL Office, Pathankot, DW1, stated that, vide lease deed D1, building of the telephone exchange, was taken, on lease, by the Central Government, for running telephone exchange. He also proved site plan of the building D2. The date of lease, is 19.04.91. It means that, lease was created, in favour of the Central Government, for running telephone exchange, much prior to the alleged delivery of possession, on 01.01.98. When the evidence of the aforesaid witnesses, is read, only one and one conclusion, that can be arrived at, is that, P1 copy of the Rapat Roznamcha, was a fabricated document, and no delivery of possession, was ever made, in favour of the plaintiff. The Courts below, were, thus, right in holding, that the claim of the plaintiff, that he was delivered the possession of the land, in dispute, but, was, later on dispossessed, was completely false. The findings of the Courts below, in this regard, being correct, are affirmed. 17. The concurrent findings of fact, recorded by the Courts below, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The submission of the Counsel for the appellant, being without merits, must fail, and the same stands rejected. 18. No question of law, much less substantial, has arisen, in this appeal, for the determination of this Court. Civil Misc. No. 1382-C of 2008 and 15 R.S.A. No. 449 of 2008 19. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs. 01.12.2009 (SHAM SUNDER) Amodh JUDGE