R.S.A. No.32 of 1989 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.32 of 1989 (O&M) Date of Decision:29th July, 2010 Sodagar Singh and others .....Appellants Vs. Harnek Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Ashok Singla, Advocate for the appellants. Mr. Sarjit Singh, Senior Advocate with Mr. Jagdev Singh, Advocate for the respondents. **** HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 14.10.1988 passed by the Court of learned Additional District Judge, Faridkot whereby he dismissed the appeal filed by Sodagar Singh and others against the judgment/ decree dated 4.3.1985 rendered by the Court of learned Senior Sub Judge, Faridkot vide which he decreed the suit in favour of the plaintiffs and against the defendants for declaration to the effect that the plaintiffs are the owners of one-third share in the suit land measuring 423 kanals 11 marlas. The facts which led to the filing of the suit are that one Chetu Singh @ Chet Singh son of Roda Singh resident of Machaki Mal Singh, Tehsil Faridkot was owner of one third share in the land measuring 423 R.S.A. No.32 of 1989 (O&M) -2- kanals 11 marlas as delineated in the plaint. He executed a registered Will dated 4.11.1981 in favour of the plaintiffs. On his death, the plaintiffs have stepped into his shoes and have become owners of one-third share in the suit land. Chetu Singh had initiated partition proceedings qua this land against the defendants, who had contested the same. The application was dismissed by the Revenue Officer on 30.7.1982 on the plea that Chetu Singh should get his title declared by the Civil Court. On these allegations, the suit has been filed for declaration to the effect that the plaintiffs are the owners of one-third share in the suit land. In their joint written statement, the defendants No.1 to 4 and 9 have denied that Chetu Singh had got one-third share in the suit land or that he had executed a valid Will in favour of the plaintiffs. As alleged,t he land in dispute had been partitioned in a family settlement and also through an Arbitrator and thus, it is no longer a joint holding. Besides this, it has been averred that the suit is barred by limitation and is bad for non-joinder of necessary parties and the answering defendants have made improvements on the land for which they are entitled to be compensated if the suit is decreed. In identical terms is the written statement filed by defendant No.10. However, the other defendants did not come forward to contest the suit and resultantly, they were proceeded against ex-parte. On the pleadings of the parties, the following issues are framed:- 1. Whether the suit is bad for non-joinder of necessary party and its effect? OPD 1 to 4 and 9. 2. Whether the suit is time barred? OPD 1 to 4 and 9. R.S.A. No.32 of 1989 (O&M) -3- 3. Whether the defendants have effected improvements in the suit land? If so its effect? OPD 4. Whether the plaintiffs are heirs of Chetu Singh on the basis of will dated 4.11.1981 duly executed? OPP 5. Whether the suit land is joint land of the parties? If so what is the share of the plaintiffs? OPP 6. Whether the suit land is partitioned through family partition? OPD 7. Relief. After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit in the terms noticed at the outset. Feeling aggrieved therewith, the defendants went up in appeal, which was dismissed by the Court of learned Additional District Judge, Faridkot. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, the defendants- appellants have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The following substantial questions of law arise for determination by this Court: a) Whether the learned Courts below despite recording the findings of partition in 1955, could have ignored the same only on the technical ground of not reporting such partition to the revenue authorities u/s 123 of The Punjab Land Revenue Act, 1887? R.S.A. No.32 of 1989 (O&M) -4- b) Whether the plaintiffs are estopped from denying the factum of partition when their predecessor in interest Chet Singh himself got the land partitioned by moving application before the consolidation authorities and especially when the plaintiff side accepted specific and separate parcel as clear from repartition proceedings resolution Ex.D1 and also when plaintiff in his cross examination as PW1 has accepted the factum of separate possession and individual developments and alienations by parties in their respective parcel of lands and also when the plaintiff against the findings of learned Trial Court regarding partition of 1955, did not file any cross objection or cross appeal to the first appellate court? Mr. Ashok Singla, Advocate on behalf of the appellants eloquently urged that the partition between the parties was effected before the consolidation authorities themselves as is being evidenced by the certified copy of resolution Ex.D1 whereby separate tracts of all the three brothers, namely, Vir Singh, Jangir Singh and Chetu Singh were carved out. This fact is further corroborated by Ex.D2, the order dated 23.3.1955 passed by the Consolidation Officer, Kotkapura. During the consolidation proceedings, the consolidation authorities themselves were acting as revenue officers and once the partition was effected before the said authorities, nothing more remained to be done by the parties to act upon the partition. It is an admitted fact that the parties are in possession of separate parcels of the land since the consolidation proceedings and their separate R.S.A. No.32 of 1989 (O&M) -5- possessions are also reflected in the khasra girdawaries. It is further admitted that the parties had been separately improving their lands since consolidation and had also received separate compensation for the land which was acquired for the rivers. Thus, these facts crystalise the conclusion that the partition effected before the consolidation authorities was accepted and acted upon by the parties. To add further to it, the factum regarding partition has also been given recognition by the learned Courts below, the findings of which have not been challenged by the respondents by way of counter appeal or cross objections. A-fortiori, there is admission in categoric terms of PW1 Harnek Singh that a partition was effected when his father was alive. It is thus clearly proved on the record that the partition was effected and the same was acted upon by the parties and the error was committed by the consolidation authorities by keeping their khata joint at the time of preparation of “Missal Haqiyat” and the remedy with the respondents was not to seek a declaration that the land was joint. They were required to have sought correction in the revenue record in accordance with the partition already made. He has sought to place reliance upon Ajmer Singh v. Dharam Singh, 2006(2) Recent Civil Reports (Civil) 541. To controvert these submissions, Mr. Sarjit Singh, Senior Advocate on behalf of the respondents maintained with a good deal of force that as revealed by Ex.D3, the order dated 30.7.1982 rendered by the Assistant Collector Ist Grade (Tehsildar), Faridkot, Chetu Singh had moved an application for partition on 9.9.1974 which was disposed of after hearing the adversaries with the observation that the question of title has arisen and R.S.A. No.32 of 1989 (O&M) -6- the same be got decided from the proper forum and, thereafter, the application be moved for partition and it was in view of this order that the plaintiffs had filed the present suit. He further punctuated that much capital has been sought to be made out of Ex.D1 by the appellants, but a careful delving into the entire record would reveal that on the basis of this very document, no further proceedings as required under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (for short, `the 1948 Act') were initiated. Thus, this document as also Ex.D2, the order passed by the Consolidation Officer on 23.3.1955 remained mere piece of papers. Inasmuch as, no further proceedings as required under this Act were taken on the basis of these documents, so now it does not lie in the mouth of the appellants to contend that vide Ex.D1, the partition was effected and the same be recognised under the provisions of Section 123 of the Punjab Land Revenue Act, 1887. I have given a deep and thoughtful consideration to the rival contentions. Needless to say, the order Ex.D2 has been purportedly passed by the Consolidation Officer, Kotkapura on 23.3.1955. Ex.D1 came into being on 23.10.1955. If Ex.D1 or Ex.D2 had been acted upon by the consolidation authorities during the course of consolidation proceedings, the khata would have certainly been divided and separate khata of the parties with regard to the land in dispute would have been incorporated in the subsequent jamabandies. As the contents of Ex.D2 proceeds, Vir Singh and Chetu Singh had moved an application seeking partition of the joint khata. The application was disposed of vide order Ex.D2 in the terms that for dividing the joint khata of Inder Singh, Harnam Singh, Vir Singh, Chetu R.S.A. No.32 of 1989 (O&M) -7- Singh and Jangir Singh, an entry be made in the Draft Scheme. This order as is borne out from the record appears to have never been implemented. If the entry in this behalf had been made in the Draft Scheme, the same would have positively been proved on the record. In Ex.D1, it has been mentioned that in the General Assembly, Jangir Singh son of Roda Singh raised the objection to the effect that the land which has been given to him is of poor quality vis-a-vis the land given to Vir Singh and Chetu Singh. In this document, the land is shown to have been partitioned off. Learned counsel for the appellants has not drawn attention of the Court towards any evidence in proof of the fact that the partition as shown in this document was given effect to or the same was entered in the draft scheme. Section 16-A of the 1948 Act reads as under: “16-A. Power to make provision in the scheme to partition joint lands and joint occupancy tenancies.- (1) Notwithstanding anything contained in Chapter IX of the Punjab Land Revenue Act, 1887, except section 117, thereof the scheme prepared by the Consolidation Officer may provide for the partition of land between joint-owners of land, or between joint- tenants of a tenancy in which a right of occupancy subsists in accordance with the share of each owner or tenant in the land or tenancy, as the case may be, if- (a) such share is recorded under Chapter IV of that Act as belonging to him, or (b) the right of such owner or tenant to such share has been established by a decree which is still subsisting at the R.S.A. No.32 of 1989 (O&M) -8- time of preparing the scheme, or (c) a written acknowledgment of such right has been executed by all persons interested in the admission or denial thereof. (2) When the scheme is confirmed under section 20, the land so partitioned shall, notwithstanding anything to the contrary contained in any law for the time being in force, be held by each such owner or tenant in full right of ownership or tenancy, as the case, may be, and the rights of other joint- owners or joint- tenants in the land shall be deemed to be extinguished.” This Section lays down that the scheme of consolidation prepared under this Act may provide for the partition of the land between joint owners of the land or between joint tenants of a tenancy in which a right of occupancy subsists, in accordance with the share of each owner or occupancy tenant in the land or tenancy as the case may be. After the consolidation scheme has been confirmed under Section 20 of the Act, the land so partitioned shall, in spite of any contrary provisions in any other law for the time being in force, be held by such owner or tenant in full right of ownership, as the case may be, and the rights of other joint owners or joint tenants in the land shall be deemed to be extinguished. In the instant one, the record is quite barren to show that on the basis of Ex.D1, consolidation proceedings have been confirmed under Section 20 of the Act. However, Section 16A of the Act does not override anything contained in Section 11 of the Punjab Land Revenue Act, 1887. Before the partition of a joint khata R.S.A. No.32 of 1989 (O&M) -9- can be ordered under Section 16A ibid, various joint owners must agree with it. Under Section 19 of the Act, after the scheme of consolidation is allowed for publication, the Consolidation Officer shall publish in the manner prescribed in the Estate or Estates concerned. Adverting to the present one, neither Ex.D1 was reflected in the draft scheme of consolidation proceedings nor the notification was issued. Thus, it cannot be said that the consolidation proceedings in relation to the partition as mentioned in Ex.D1 were pending in the village as no further step had been taken. That being so, the provisions of Section 32 of the 1948 Act cannot be attracted to this case. Mr. Ashok Singla, Advocate on behalf of the appellants had been emphatic in the course of arguments that Ex.D1 in fact was prepared by the Advisory Committee constituted under the Act and hence, the effect must be given to the partition as in terms of this document. This contention does not find favour with me. As provided in the Act, after the Assistant Consolidation Officer has completed the repartition proceedings under Section 21(1) of the Act, with the aid and advice of the Advisory Committee of the estate or estates concerned in accordance with the scheme of consolidation, confirmed under Section 20, he shall prepare the following repartition papers as per Rule 7 of the Rules made under the 1948 Act: “(i) A map of the village showing all existing field numbers, recognised roads, and irrigation channels, and areas assigned for public purposes such as burial grounds, disposal of animal, carcasses, ponds or grazing areas, etc. with new field numbers superimposed upon it in red lines R.S.A. No.32 of 1989 (O&M) -10- or other markings. (ii) Another similar village map exhibiting position emerging as a result of repartition. (iii) A statement showing the names of the owners of holdings with particular of field numbers, shares, class of land, tenure, area, assessment and encumbrance, if any, after getting the record of rights upto date. (iv) A statement showing the names of owners with particulars of all different rights possessed by each individual. (v) A statement showing the compensation payable by or to an owner in order to adjust difference in the valuation of land exchange under section 15 of the Act or due to the existence of wells, trees, etc. under sub-section (4) of section 17. (vi) A statement showing the names of occupants or holders to whom the new consolidated holdings are allotted with particulars of field numbers, shares, class of land, tenure, area, assessment and encumbrances, if any. (vii) Such other papers as may be considered expedient by the Settlement Officer (Consolidation) in this behalf.” Here in this case, if the above-mentioned papers had been prepared, these in all probabilities, would have been produced. Under the Act, it is the duty of the consolidation authorities to decide in the first instance whether a question of title arose or not on the objections filed by R.S.A. No.32 of 1989 (O&M) -11- any of the parties against the scheme which provides for partition of joint khata. If they had come to a conclusion that such a question arose, they should have stayed off their hands regarding the partition, leaving the parties to get a decision on the question of title from a Civil Court. In the present one, as noticed supra, no proceedings as required under the Act having been conducted in pursuance of Ex.D1, it has to be held that the partition shown therein remained ineffective. It can be aptly described that the partition remained inchoate. It is beyond comprehension as to why the defendants- appellants blissfully slept over the matter and did not agitate their right on the basis of Ex.D1 for such a long period. They have produced this document dated 22.3.1955 only in the present suit filed by the plaintiffs. Law is for the vigilants and not for the negligents. Why they slumbered over this document for a sufficient time is an enigma or mystery. It gives an inkling that they did not want to pursue the matter any further. It is a matter of common knowledge that the consolidation proceedings were over by the year 1962. Till such time, the relief, if any, on the basis of Ex.D1 had been available to the defendants, the same would have been given by the consolidation authorities. Of course, the powers of Revenue Officers did vest in the consolidation officers at the relevant time, but now the things are over. It is for this reason that vide order dated 30.7.1982 Ex.D3, the learned Assistant Collector Ist Grade (Tehsildar) Faridkot has asked the parties to move for partition of the land after getting the title over it decided from the competent Court. If we go by the letter and spirit of this order, there was dispute of title between the parties and it is because of this reason that such direction has been given by the Revenue R.S.A. No.32 of 1989 (O&M) -12- Officer. As alleged in the written statement, there was a family settlement through arbitration. But to the utter dismay of the defendants- appellants, Ex.D1 would reveal that no arbitrator was appointed. A careful perusal of it would reveal that its original was signed by the consolidation authorities. Thus, in my estimation, it cannot be said that the partition was proposed or done by the arbitrator. There is no gainsaying the fact that in the revenue record, the khata is still joint. The defendants- appellants have sought to rely upon Ex.D1 as well as Ex.D2, the documents prepared by consolidation authorities, but there is no plea in the written statement that the partition of the land in dispute has been effected by the consolidation authorities. As per averments in the written statement, the family settlement was made by appointing an arbitrator, who has also not been examined. In the evidence, the defendants- appellants have produced the afore-mentioned documents prepared by the consolidation authorities during consolidation proceedings, whereas in the written statement, they have come up with the plea that the partition has been effected by way of family settlement. Thus, in my considered opinion, there is variance between the pleadings and proof which is barred by the provisions as enshrined in Order 6 Rule 2 of the Code of Civil Procedure. There being no plea in the written statement that Ex.D1 and Ex.D2 which have been sought to be relied upon adequately and sufficiently by the defendants- appellants were prepared by the consolidation authorities, so, these cannot be looked into evidence. In Ajmer Singh's case (supra), it has been held that “failure to seek affirmation of private partition, if otherwise proved on record cannot be R.S.A. No.32 of 1989 (O&M) -13- negated only for reason of non-affirmation from revenue authorities. Since on the basis of evidence, it has been found that partition has already effected, therefore, plaintiff was not a co-sharer on the date of sale of land and thus, not entitled to decree of pre-emption.” Section 123 of the Punjab Land Revenue Act, 1887 reads as under: “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 partly thereto may apply 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.” Coming to the family partition as alleged in the written statement, if the co-sharers had agreed thereto, the affirmation thereof under Section 123 ibid could have been sought. In the case at hand, the plaintiffs- respondents have denied the alleged family partition. Furthermore, the same does not seem to have ever been reported to the Revenue authorities by the defendants seeking affirmation under the afore-referred Section. Sequelly, no mileage can be drawn from the rule laid down in Ajmer Singh's case (supra). R.S.A. No.32 of 1989 (O&M) -14- For the preceding reasons, the learned Courts below were perfectly right in ignoring the alleged partition effected in 1955 and accordingly, the first substantial question of law is answered against the appellants- defendants. Doubtless that Harnek Singh, plaintiff as PW1 has testified in his cross-examination that “It is correct that before and after consolidation, our land had been separated. Volunteered, our khata is still joint. xxxx It is correct that our father was alive at that time, when the land was partitioned. We came to know from Numberdars. xxxx It is correct that Sudagar Singh and others have been cultivating their own land since consolidation.” On the basis of this oral evidence, it has been sought to be argued by Mr. Ashok Singla, Advocate that the parties are in possession of their respective shares and the partition of the land as mentioned in Ex.D1 has also been admitted. This contention merits rejection. It is a matter of common knowledge that in the villages, for the convenience of cultivation, the co-sharers divide the land and unless such partition is reported to the revenue authorities for affirmance under Section 123 ibid, the khata continues to be joint and the same cannot be deemed to have been separated. Be that as Harnek Singh PW's evidence may, but the fact remains that Ex.D1 was neither acted upon in the manner as provided by the Act, nor the alleged private partition or family settlement was ever reported to the revenue officers under the said Section. Consequently, special jamabandi (missal haqiyat) could not be prepared. To conclude finally, as per the revenue record, the khata being still joint, no interference is warranted in the findings returned by both the Courts below and sequelly, the same are affirmed. So, the second R.S.A. No.32 of 1989 (O&M) -15- substantial question of law is also answered against the defendants- appellants. In consequence of the preceding discussion, this appeal fails and is dismissed. Of course, having regard to the peculiar facts and circumstances of the case, the parties are directed to bear their own costs. Since the main appeal has been decided, as such, all pending civil miscellaneous applications, if any, also stand disposed of. July 29, 2010 ( HARBANS LAL ) renu JUDGE Note: Whether this case is to be referred to the Reporter? Yes/No