IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1762 of 1984 Date of Decision: 16.8.2010 Balwant Singh. ....... Appellant through Ms.Alka Sarin, Advocate. Versus Smt. Shunno Devi and others. ....... Respondents through Shri G.S.Punia, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal by the plaintiff is directed against judgments and decrees dated 13.12.1982 and 7.3.1984 passed respectively by the Sub Judge Ist Class, Pathankot (hereinafter described as `the trial Court') and the District Judge, Gurdaspur (referred to hereinafter as `the first appellate Court') whereby his suit and appeal have been dismissed. A suit for declaration was filed by the plaintiff alleging that the land in dispute was originally part of shamlat land and subsequent to its partition between the co-sharers, it fell to the share of Smt. Pranti Devi alias Amarti Devi widow of Shri Nathu Ram, who had sold land the same to him along with land measuring 92 kanals and 7 marlas by virtue of sale deed R.S.A.No.1762 of 1984 -2- .... dated 14.7.1972 as the said document contained a stipulation that proportionate share in the shamlat land would also be part of the sold land. Smt. Pranti Devi died on 19.2.1973 and her inheritance was mutated in the names of defendants-respondents nos. 1 to 6 by the revenue authorities vide mutation no.689 dated 20.10.1978. The suit land was also mutated in their favour which had come to the share of Smt. Pranti Devi in the wake of the partition. The plaintiff challenged the said mutation as well as the sale deed dated 26.3.1979 purportedly executed by Smt. Shunno Devi -respondent no.1 in respect of a part of the land in dispute in favour of defendant-respondent no.7 on the ground that the same were not binding upon him. Two separate written statements were filed - one by respondent nos. 1, 2 & 7 and the other by respondent nos. 3 to 6. They contested the averments made by the plaintiff. It was pleaded that although the suit land was, at one point of time, shamlat land, but the same had come to the share of Smt. Pranti Devi on the basis of partition between the co-sharers and when land measuring 92 kanals 7 marlas was sold by her, she never intended to sell it to him. It was further pleaded that the mutation of inheritance qua the properties of Smt. Pranti Devi was correctly sanctioned in favour of respondent nos. 1 to 6 and that the sale of a part of the suit land in favour of respondent no.7 was legal. The trial Court, on the basis of the pleadings of the parties, framed the following issues:- 1. Whether the plaintiff purchased land from Smt.Pranti R.S.A.No.1762 of 1984 -3- .... measuring 92 kanals 7 marlas along with share in the shamlat land as per the sale deed dated 14.7.1972 as alleged?OPP 2. Whether there was shamlat land at the relevant time and such land has been partitioned and out of which 75 kanals 3 marlas had fallen to the share of Pranti?OPP 3. If issue no.1 is proved, whether the words “Mai Hissa Shamlat” in the sale deed have been inserted through fraud and without knowledge of Pranti?OPD 4. Whether the plaintiff has a cause of action to file this suit?OPP 5. Whether defendant no.7 is bona fide purchaser for consideration from defendant no.1. If so, its effect on the suit?OPD(7) 6. Whether the plaintiff is entitled to the declaration prayed for?OPP 7. Relief. After appraisal of the evidence adduced by the parties, the trial Court determined that the suit was mis-conceived and, therefore, dismissed the same. The appeal filed by the plaintiff was also dismissed by the first Appellate Court giving rise to the instant appeal. Learned counsel for the plaintiff-appellant contended that the sale deed executed by Smt.Pranti Devi in favour of the plaintiff has been R.S.A.No.1762 of 1984 -4- .... held to be valid by both the Courts below which finding has not been assailed by the respondents. He, thus, submitted that in the absence of any challenge to the said finding, the sale deed has to be accepted in its totality and since there is a recital in it that the sold land also includes the shamlat land, the subsequent mutation of the land in dispute in favour of the respondents after the death of Smt.Pranti Devi was unlawful and not binding on his rights and he ought to have been declared to be rightful owner thereof. He also sought to negate the effect of partition by contending that according to Section 121 of the Punjab Land Revenue Act,1887 (for short, `the Act'), such partition could not be recognised in the eyes of law as it was never complete and merely because possession had been delivered to Smt.Pranti Devi, the status of the land in dispute could not be said to be that of a partitioned land. To support this contention, he placed reliance on judgments of this Court in Pritam Singh Versus Jaskaur Singh, 1992(2) P.L.R. 742 and Jagtar Singh Versus Jhabbar Singh and others, 2007(4) P.L.R. 539. On the other hand, learned counsel for the respondents contended that the partition stood completed in the year 1969 and the possession of the suit land had been handed over to Smt.Pranti Devi which is reflected in Exhibit D4, the report of Tehsildar, which indicates the completion of partition proceedings and subsequent handing over of possession to the respective parties. He then referred to sale deed dated 14.7.1972 in favour of the plaintiff which has not been disputed and contended that it pertains to only 92 kanals 7 marlas and no other land R.S.A.No.1762 of 1984 -5- .... could be said to have been included as a part of the sold land. It was next contended that Smt.Pranti Devi died in the year 1973 and during her life time, no attempt was made by the plaintiff to retrieve the possession of the suit land which he claims and more-so, the partition stood effected in the year 1969 and also the possession of the suit land was delivered to her. Learned counsel for the respondents submitted that the factum of partition of shamlat land has not been disputed by the plaintiff, who has pleaded so in paragraph 3 of the plaint and that reference made to shamlat land in sale deed dated 14.7.1972 could possibly relate to some other shamlat land which is reflected in Exhibit D3. He, thus, urged that the suit land which came to be mutated in favour of respondent nos. 1 to 6 on the basis of natural succession could not be disturbed in view of the claim of the plaintiff. I have considered the rival contentions and have perused the impugned judgments and also the record of the case. Before proceeding further, Sections 121 and 123 of the Act, which are relevant for this judgment, are extracted below:- “121. Instrument of partition.- When a 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 to be recorded therein. 123. Affirmation of partition privately effected.-- (1) In any case in which a partition has been made without the intervention of a Revenue-officer, and party thereto may apply R.S.A.No.1762 of 1984 -6- .... to a Revenue-officer for an order affirming the partition. (2) On receiving the application, the Revenue-officer shall inquire into the case and, if he finds that the partition has, in fact, been made, he may make an order affirming it and proceed under sections 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.” In the present case, it stands proved on the basis of evidence on record that the shamlat land was partitioned between the co-sharers in the year 1969 and the suit land fell to the share of Smt. Pranti Devi and the possession of the respective shares of the co-sharers was delivered to them which is evident from Exhibit D4. The validity of this document has been determined by the Courts below. It implies that Smt.Pranti Devi was in possession of the suit land after partition of the shamlat land. The sale deed in favour of the plaintiff was executed in the year 1972 whereby land measuring 92 kanals 7 marlas was sold to him by Smt.Pranti Devi. No doubt, there is a stipulation in this sale deed that rights in the shamlat land will also be included in that sale. Had Smt. Pranti Devi the intention to alienate the suit land, then she would have certainly mentioned in detail about it for the simple reason that this is a big chunk of land measuring 75 kanals 3 marlas. Moreover, the plaintiff did not assert his right, if any, in the suit land during the life time of Smt.Pranti Devi, even though she remained alive up to February 19,1973. It is not expected of a person, who R.S.A.No.1762 of 1984 -7- .... has been deprived of holdings of more than 75 kanals, to remain silent, more-so when the partition of shamlat land had been effected in the year 1969 and Smt.Pranti Devi was concededly in possession of her share. The plea of the plaintiff that according to Section 121 of the Act, the alleged partition of the shamlat land could not be said to be complete in the absence of an instrument of partition also sounds hollow for more than one reasons, the first being the plaintiff himself admitted that the partition of shamlat land had been effected and the second is that Exhibit D4 reflects that possession of the partitioned land had been given to Smt. Pranti Devi. Under the provisions of the Act, the effect of a private partition cannot be nullified if the same has been made and acted upon. The provisions of the Act are merely to ensure that the persons who are beneficiaries are in separate possession on the basis of the partition effected between them, but, under no circumstance, the effect of such partition cannot be nullified, more-so when the parties are in possession of their respective shares. No doubt, the learned Single Judges in the judgments relied upon by the learned counsel for the appellant have observed that 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 recorded therein and that the partition is not effective in absence thereof, but, in my view, if the parties have acted upon the partition and are in possession of their respective shares which has been recognised by the revenue officials, then such partition cannot be discarded and has to R.S.A.No.1762 of 1984 -8- .... be given recognition. In Ajmer Singh Versus Dharam Singh, 2006(2) R.C.R. (Civil) 54 (P&H), it was observed by this Court as under:- “18. In view of the above binding precedents, it is apparent that the revenue record by itself neither create or (sic.nor) extinguish title. Since co-owners by mutual consent have entered into separate portions of land and are in the enjoyment of their respective portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre- partition status. The role of the revenue officer in section 123 of the Act is that of “affirmation of partition”. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of Section 123 of the Act is restricted to the effect to point out that, in fact, partition has been made. Therefore, non-affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act.” (emphasis supplied) As mentioned above, in the present case, there is evidence on record to show that the partition of shamlat land was effected between the co-sharers in the year 1969 and they were in possession of their respective shares which possession was even authenticated by the revenue officials while recording entries in their record. Thus, the provisions of Section 123 R.S.A.No.1762 of 1984 -9- .... of the Act will come into play and the private partition will be deemed to have been affirmed. Besides, Exhibit D3 shows that some shamlat land still remained to be partitioned and it is in all probabilities that this was the land which was mentioned in the sale deed dated 14.7.1972 and not the suit land. On the basis of the above discussion, I do not find any infirmity or illegality in the impugned judgments. Accordingly, the instant appeal is dismissed being devoid of any merit. August 16,2010 ( Mahesh Grover ) “SCM” Judge