Regular Second Appeal No.1014 of 1991. -1- In the High Court of Punjab and Haryana at Chandigarh. Regular Second Appeal No.1014 of 1991. Date of decision:11-3-2008 Milkha Singh (since deceased) through his legal representatives. ...Appellant. Versus Makhan Singh and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. M.L. Sarin, Senior Advocate with Mr. Vivek Sood, Advocate for the appellant. Mr. Deepak Thapar Advocate for the respondents. ... K. C. Puri, J. Judgment. The plaintiff, feeling dis-satisfied with the judgment and decree dated 7.3.1991 passed by Mr. D. S. Chhina, the then Additional District Judge, Gurdaspur, has preferred the instant Regular Second Appeal in this Court. By the impugned judgment and decree, the learned Additional District Judge, Gurdaspur has reversed the findings of learned trial Court on issue No.1 and dismissed the suit of the Regular Second Appeal No.1014 of 1991. -2- plaintiff. Briefly stated the facts of the case are that the plaintiff filed a suit for possession of the land in dispute on the averments that he was the exclusive owner of the suit land after partition of joint khata with other co-sharers. Mutation No.1054 was sanctioned on the basis of partition dated 24.2.1981. Previously, Jai Singh, father of defendant No.1 and defendant No.1 were in illegal and unauthorised possession of the suit land. After the death of Jai Singh, all the defendants were in illegal and unauthorised possession. He requested the defendants to admit his claim but to no effect. The defendants contested the suit of the plaintiff and filed written statement in which it was pleaded that it was wrong that the plaintiff became exclusive owner of the suit land after partition of joint khata. In fact, the plaintiff and other co-sharers, with the intervention of respectables of the village, made a compromise and partitioned their joint holding vide writing dated 31.5.1981 and according to the said writing, the suit land fell to the share of the defendants. The revision filed by the defendants in the Court of Commissioner, Jalandhar Division was withdrawn on the basis of said writing. The defendants were in continuous possession of the suit land for the last 30 years and they have improved it by dint of their hard labour after spending considerable amount. The defendants also pleaded that the Civil Court had no jurisdiction to try the suit as the plaintiff alleged allotment of Regular Second Appeal No.1014 of 1991. -3- suit land in partition proceedings decided by Assistant Collector Ist Grade, Gurdaspur on 24.2.1981 and only the said Court had jurisdiction to execute the said order. On the pleadings of the parties, the learned trial Court framed the following issues:- 1.Whether the plaintiff is exclusive owner of the suit land and he is entitled to a decree for possession of the same?OPP. 2.Relief. The learned trial Court decided issue No.1 in favour of the plaintiff and as a consequence thereof, decreed the suit of the plaintiff with costs vide judgment and decree dated 6.1.1990. Feeling aggrieved, the defendants filed an appeal which was accepted by Mr. D.S.Chhina, Additional District Judge, Gurdaspur vide impugned and decree dated 7.3.1991. Feeling dis-satisfied the plaintiff has filed this Regular Second Appeal in this Court. I have heard arguments of counsel for the parties and have gone through the record of the case. The learned counsel for the appellant has framed the following substantial questions of law:- 1. Whether the Lower Appellate Court was justified in accepting the compromise, Exhibit D1, in the face of the Regular Second Appeal No.1014 of 1991. -4- Civil Court decree, Exhibit P-4? 2. Whether a private compromise, which is not part of any court proceedings, could be relied upon to dismiss the suit of the plaintiff-appellant? 3. Whether the compromise, Exhibit D-1, which is at best a private partition, could be accepted, it not having been brought to the notice of the revenue authorities? 4. Whether the plaintiff-appellant, not being party to the order, Exhibit D-2, could still be held bound by it? 5. Whether the judgment and decree of the Lower Appellate Court are perverse and liable to be reversed? Mr. M.L.Sarin, Senior Advocate, has submitted that the trial Court has passed well reasoned judgment. The said judgment has been set aside by the Appellate Court solely on the ground that parties have entered into a compromise, Exhibit D-1. It is submitted that the compromise, Exhibit D-1, has not been reflected in the revenue record. A compromise, which is not reflected in the revenue record, cannot be said to be valid, in view of authority reported as Kundan Singh and others Versus Sohail Singh and another,1983 Punjab Law Reporter 634. It is submitted that according to Sections 111 and 121 of the Punjab Land Revenue Act, 1887, in case a private partition is not reflected, the same cannot be accepted. The rights in respect of property of the value of more than Rs.100/- have been transferred by the Regular Second Appeal No.1014 of 1991. -5- compromise, Exhibit D-1 and the same being un-registered, is inadmissible in evidence. To fortify this argument, the learned counsel for the appellant has relied upon authority reported as Chander Shekhar and others Versus Des Raj and others, 1990(1) Revenue Law Reporter 549. Learned counsel for the appellant has further submitted that the first Appellate Court has relied upon authority reported as Kodoth Ambu Nair Versus Echikan Cherakara Kalu Nair, AIR 1933 PC 167 and on the strength of the same, the first Appellate Court has given a finding that the plaintiff cannot blow hot or cold nor to approbate and reprobate as in the previous civil suit No.59 of 1982 against Rattan Singh and others, he alleged that the suit property is joint and now he cannot take the plea of partition. In this context, it is submitted that it is not the plaintiff who was blowing hot and cold in the same breath but the defendants were blowing hot and cold in the same breath. In civil suit No.59 of 1982, the plaintiff/appellant has taken a stand that the suit land has not been partitioned and the same is joint and the plaintiff is still owner of 1/4th share. The defendants have taken the plea in that suit that property has been partitioned by the Tehsildar and the parties are in separate possession. It is submitted that the suit was filed in the year 1982 i.e much after the alleged compromise dated 31.5.1981, Exhibit D-1. The defendants have not pleaded that compromise in that suit. Finding has been given vide judgment and decree in that suit on Regular Second Appeal No.1014 of 1991. -6- 17.5.1984 by Shri D.S.Chhina, the then Sub Judge Ist Class, Gurdaspur that the suit property has been partitioned by the Assistant Collector Ist Grade vide order dated 24.2.1981 and the parties are in their respective possession. That suit was filed after the alleged compromise. The defendants have not pleaded or proved the said compromise in that suit. Once the Civil Court has returned a definite finding between the parties that the property has been partitioned by Assistant Collector Ist Grade vide order dated 24.2.1981, the defendants are now estopped from taking the plea that land has been partitioned vide compromise, Exhibit D-1. It is further submitted that the same officer i.e. Mr. D. S. Chhina on his promotion as Additional District Judge has accepted the appeal of the defendants holding that the compromise, Exhibit D-1 has taken place between the parties. The said officer has not taken into account the fact that compromise, Exhibit D-1, is much prior in time to the decree dated 17.5.1984. Even the suit was filed after the alleged compromise, Exhibit D-1 i.e. on 3.3.1982. The defendants were at liberty to take the stand that private partition has taken place on 31.5.1981. In reply to the above noted submissions, the learned counsel for the defendants/respondents has supported the judgment of the first Appellate Court and has submitted that compromise, Exhibit D-1, dated 31.5.1981 has been admitted by the plaintiff. So, he cannot wriggle out from that compromise, Exhibit D-1. It is submitted that in Regular Second Appeal No.1014 of 1991. -7- the previous suit, the plaintiff has taken a stand that the land is still joint but his suit was dismissed holding that since the land has been partitioned by the order of Assistant Collector Ist Grade, as such the suit is not maintainable, in view of Section 158 of the Land Revenue Act. The order of Assistant Collector Ist Grade regarding partition is dated 24.2.1981. The previous suit had been instituted on 3.3.1982 and decided on 17.5.1984. It is further submitted that the defendants have withdrawn the revision petition in view of compromise dated 31.5.1981 and as such estoppel is created against the plaintiff from challenging the said compromise. It is submitted that Mr. D.S.Chhina has passed the decrees and now judgment dated 7.3.1991 as Additional District Judge. I have carefully considered the said submissions and have gone through the record of the case. The whole controversy revolves around the compromise, Exhibit D-1. It is not disputed that parties have joint land and the present defendants filed an application for partition of joint land and ultimately partition order dated 24.2.1981 was passed. It is also not disputed that 50 Kanals 18 Marlas of land was allotted to plaintiff Milkha Singh in that partition and that land also includes the suit land. The plaintiff has filed suit for possession in respect of suit land which has been allotted to him through the said order. It is also not disputed that the plaintiff previously filed civil suit No.59 of 1982 and alleged Regular Second Appeal No.1014 of 1991. -8- that he is still owner of 1/4th share of land measuring 650 Kanals 16 Marlas and has challenged the order of Assistant Collector even on 24.2.1981. The defendants of the present suit are the defendants in that suit and they have taken objection that suit land has been partitioned by Assistant Collector Ist Class vide order dated 24.2.1981 and the parties have taken possession in accordance with that partition. From the perusal of the said judgment, it is revealed that the present defendants have not pleaded the factum of private partition on 31.5.1981. Mr. D.S.Chhina, the then Sub Judge Ist Class, Gurdaspur, after perusal of evidence on the file came to the conclusion that partition has taken place and the same has been implemented and the parties have been put in possession in accordance with the said partition. That finding in respect of issue No.3 is reproduced as under:- “A specific objection was raised by defendants Nos.1 to 4 that possession has been delivered to the parties through the Revenue Officer and that a suit for mere declaration was not maintainable. Rattan Singh, DW-1 has deposed to the same effect. The plaintiff also admitted in cross- examination that the Revenue Officer got the possession delivered to the co-owners in accordance with their shares (as per the partition order). Evidently, the order of partition, copy Exhibit P-3, has been implemented at the spot. A suit for merely declaration is,therefore, not maintainable. This Regular Second Appeal No.1014 of 1991. -9- issue is decided against the plaintiff.” The land involved in that suit was the same as involved in the present case. It is admitted, during the course of arguments, that the said judgment has become final and has not been set aside by any competent Court. It is not out of place to mention here that suit was filed on 3.3.1982. The compromise relied upon by the defendants is dated 31.5.1981. That compromise has not been pleaded in said suit No.59 although written statement was filed after 3-3-1982. Definite finding has been returned by the then Sub Judge between the parties that suit land is not joint and the same has been partitioned as per order dated 24.2.1981. So, the defendants are now estopped from taking the plea of private partition. The private partition has not been reflected in the revenue record. So, in view of authority reported in Kundan Singh's case (supra), the said partition cannot be accepted. In authority in Chander Shekhar's case (supra), it has been held that unless private partition is reflected in the revenue record, the same cannot be looked into. It has been further laid down that since the private partition does not reflect the past transaction, as such the same is compulsorily registrable. So, the cumulative effect of above discussion is that the first Appellate Court has fallen into grave error by holding Exhibit D-1 as legal and valid document. So far as the fact that the defendants have withdrawn the revision petition is concerned, that fact does not create any estoppel against the plaintiff. Regular Second Appeal No.1014 of 1991. -10- In view of the above discussion, the substantial questions of law, framed above, stand answered accordingly. Consequently, the appeal is accepted. The judgment and decree of the first Appellate Court stand set aside and that of Sub Judge Ist Class, Gurdaspur dated 6.1.1990 stand restored and the plaintiff is held entitled to the possession of the suit land. Decree sheet be prepared. Files of the Courts below be returned after due compliance. Sd/- March 11 ,2008. ( K. C. Puri ) Jaggi Judge