IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos.90, 200 & 201 of 1995 Date of decision : August 3, 2010 RSA No.90/1995 Krishan Chand …Appellant. Versus Nihal Chand (dead) through LRs and others …Respondents. RSA No.200/1995 Devi Chand (dead) through LRs …Appellant. Versus Krishan Chand and others …Respondents. RSA No.201/1995 Devi Chand (dead) through LRs …Appellant. Versus Krishan Chand and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant(s) : Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, in RSA No.90 of 1995. Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, for RSA Nos.200 and 201 of 1995. For the Respondent(s) : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, for RSA No.90 of 1995. Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, in RSA Nos.200 and 201 of 1995. Whether reporters of the local papers may be allowed to see the judgment? …2… Surjit Singh, J (Oral) These three appeals are being disposed of by a common judgment, as all of them arise out of the same judgment, i.e. judgment dated 24th November, 1994 of Additional District Judge, by which appeals filed by both the sides against the judgment and decree dated 26th March, 1990 of the trial Court, have been dismissed and judgment and decree of the trial Court affirmed. 2. Two suits were filed by the parties in the trial Court. One suit was filed by Devi Chand (now dead and represented by LRs, appellant in RSAs No.200 and 201 of 1995), and the other by Krishan Chand (appellant in RSA No.90 of 1995). 3. First, it was Devi Chand who filed the suit, which was registered as Civil Suit No.98-1 of 1987. This suit was for issuance of permanent prohibitory injunction, restraining Krishan Chand (appellant in RSA No.90 of 1995) from interfering in his possession over land measuring 1 bigha 11 biswa, described by Khasra No.1231/50, situate in village Mohal Pallahi, Village Himthala, Tehsil Kumarsain, District Shimla, hereinafter called suit land. It was pleaded that land bearing Khasra No.50 and some other land, comprised in a few other Khasra numbers, was initially joint property of plaintiff Devi Chand, defendant Krishan Chand and several other persons and that in a partition, which took …3… place in the year 1973, under the orders of Revenue Officer, the above described 1 bigha 11 biswa land, forming part of Khasra No.50, fell to the share of the plaintiff (deceased Devi Chand). 4. Suit was contested by Krishan Chand, who took the plea that the entire area of Khasra No.50, measuring 4 bigha 1 biswa had fallen to the share of his grandfather, in a private partition, which took place in the year 1926 and ever since he and other descendents/heirs of his grandfather, including one Kamla, widow of his father’s brother Brij Lal, had been in possession of entire area of Khasra No.50. 5. During the pendency of the aforesaid suit, Krishan Chand also filed a suit. He pleaded that the entire area of Khasra No.50, including Khasra No.1231/50, which was the subject matter of the earlier suit, instituted by Devi Chand, had been in his and his grandfather’s other legal heirs’ possession since 1926, on the basis of a private partition, effected vide writing Ex. P-1 and that Devi Chand, who had been impleaded as a defendant, was trying to interfere in said Khasra No.50, without any right, title or interest. It was also pleaded that partition, which had been carried out at the instance of Kamla in the year 1973, was of no consequence, as a private partition had earlier taken place and also the said partition of 1973 had not been given …4… effect to, in the sense that possession of the land allotted to each individual co-sharer had not been delivered to him/ her. 6. Both the suits were consolidated by the trial Court and common issues were framed, which are as follows: “1. Whether plaintiff Shri Krishan Chand is owner in possession of suit land? …OPP 2. Whether defendant Devi Chand is in possession of the suit property? …OPD 3. Whether plaintiff is entitled to the relief of injunction? …OPP 4. Whether defendant Shri Devi Chand is entitled to the relief of injunction?...OPD 5. Whether Krishan Chand has become owner by adverse possession? …OPP 6. Relief.” 7. Parties went to trial, at the end of which trial Court returned the findings that Krishan Chand and Kamla were joint owners of the suit land, but possession was with Devi Chand. Plea of adverse possession raised by Krishan Chand was held to have not been proved. Both the suits were dismissed. Reason given for dismissing the suit of Devi Chand was that he, being not the owner of the suit land, was not entitled to the relief of injunction and reason given for the dismissal of the suit filed by Krishan Chand was that he being out of possession, question of granting relief of injunction in his favour did not arise. However, …5… declaratory decree was passed in favour of Krishan Chand that he alongwith Kamla Devi was joint owner of the suit land. 8. Both the parties filed appeals. One appeal was filed by Krishan Chand, being aggrieved by the decree declining the relief of injucntion. Two appeals were filed by Devi Chand, one against the decree of dismissal of his suit and the second against the declaratory decree passed in favour of Krishan Chand in latter’s suit. All the three appeals were dismissed by the first Appellate Court. 9. Learned District Judge, while dismissing the appeal of Krishan Chand, did not take into account the fact that plaint had been amended by Krishan Chand and relief of possession had also been claimed, in the alternative. 10. Now, one appeal has been file by Krishan Chand, challenging the dismissal of his appeal by the learned Additional District Judge and the other two appeals have been filed by Devi Chand, challenging the decree of learned Additional District Judge, dismissing his two appeals. 11. Krishan Chand’s appeal was admitted on the following substantial questions of law: “1. Whether the learned lower Appellate Court was justified in dismissing the suit of the plaintiff/appellant after having coming to the conclusion that the defendants/ respondents had no title to the property in question? …6… 2. Whether the judgment and decree passed by the learned lower Appellate Court is vitiated on account of not deciding the additional issue framed before it on 12.7.1993 and considering the effect of the amendment of the plaint including the relief of possession?” 12. Appeals filed by Devi Chand were admitted on different substantial questions of law, which are as follows: “1. Whether exhibit P-1 was in-admissible in evidence for want of stamp duty and registration and therefore, the same could not be received in evidence. 2. Whether the presumption of truth is attached to the entries in the revenue record as placed by the appellant, Devi Chand, has not been rebutted by respondent Krishan Chand. 3. Whether partition proceedings as held by Learned Assistant Collector Ist Grade Theog as set up by the appellant are legal and valid. 4. Whether the courts below acted illegally by failure to consider and appreciate oral and documentary evidence as produced by the Appellant. 5. Whether documents Exhibit D-1 to D-6 as placed on record by appellant have been excluded by the courts below from consideration. If so, its effects? 6. Whether since the appellant has been found in possession of the suit land, therefore, he is having title over the same on the basis of partition proceedings.” 13. I have heard the learned counsel for the parties and gone through the record. 14. From the evidence and the pleadings of the parties, it emerges that the parties had a common ancestor …7… by the name of Parsu. He had three sons, named Hari Ram, Manu Ram and Turia Ram. Hari Ram had two sons, named Brij Lal and Dil Sukh. Krishan Chand (appellant in RSA No.90 of 1995) is the son of Dil Sukh. Brij Lal died, leaving him surviving a widow by the name of Kamla. Second son Manu had two sons, named Nihal Chand and Devi Chand (appellant in RSA Nos.200 and 201 of 1995) and a daughter, named Jiwa Dassi. 15. Krishan Chand’s case is that a partition had taken place in the year 1926 among Hari Ram, Manu Ram and Turia Ram and in that partition the entire area of Khasra No.50 had fallen to Hari Ram’s share. According to him, a writing of that partition was also prepared, which is Ex. P-1. No doubt, writing Ex.P-1 does suggest that there had been some arrangement among the three brothers, Hari Ram, Manu Ram and Turia Ram, and as per that arrangement, entire area of Khasra No.50 had been given to Hari Ram, but in the revenue papers, even after the execution of Ex. P-1, all the above named three brothers and after their death their successors, continued to be recorded as joint owners, though in separate possession of different areas, and Hari Ram’s successors, i.e. Brij Lal and Dil Sukh, were recorded in possession of Khasra No.50. 16. It was Brij Lal’s widow Kamla, who, in the year 1962, filed an application for partition of the joint Khata. In …8… the application, she sought partition of the entire joint Khata of their common ancestor Parsu, specifically mentioning the details of the entire Khata, the total area of which measured 16 bigha 11 biswa. The area included Khasra No.50, which Krishan Chand (appellant in RSA No.90 of 1995) claims to have fallen to his grandfather Hari Ram’s share, in the alleged private partition. 17. Now, when the daughter-in-law of Hari Ram herself sought partition of the entire area of the joint Khata, Krishan Chand’s claim of private partition gets clouded. Not only this, Dil Sukh, the father of Krishan Chand, who was alive during the partition proceedings, appeared and made statement, copy Ex. D-5, in which he did not take the plea of alleged private partition, leave alone claiming that he and Kamla were entitled to the entire area of Khasra No.50. He, in fact, sided with appellant Devi Chand and both of them engaged the same Advocate as their counsel. 18. Order of partition is Ex. D-4. The same is dated 22nd June, 1970. Mutation of partition was also attested, copy of which is Ex.P-4. As per this mutation order, area of Khasra No.50, which measured 4 bigha 1 biswa, was partly allotted to Dil Sukh, the father of Krishan Chand, to the extent of 16 biswa; partly to Kamla Devi, widow of Brij Lal, to the extent of 1 bigha 14 biswa; and partly to Devi Chand, to the extent of 1 bigha 11 biswa. It is this 1 bigha 11 …9… biswa area, which was mutated in favour of Devi Chand, with respect to which the parties are at issue. According to Krishan Chand, this area remained with him, even after the alleged partition order and the attestation of mutation, while Devi Chand claims that its possession had been delivered to him and he is now in possession. 19. Ever since the attestation of mutation, copy Ex.P-4, it is Devi Chand, who is being recorded in possession of the suit land, measuring 1 bigha 11 biswa, in the revenue papers. Reference in this behalf may be made to Jamabandi for the year 1982-83, copy Ex. D-1. Oral evidence also suggests that the possession is with Devi Chand. Two Courts below have also given concurrent finding that the possession is with Devi Chand. Krishan Chand’s plea that he had been divested of possession, only after the institution of the suit, is belied by the oral evidence, which suggests that he has been out of possession since 1973, in which year mutation Ex. P-4 was attested. Krishan Chand, while in the witness-box, stated that defendant had not allowed him to enter the suit land since March, 1977. When Devi Chand was in the witness- box as DW-1, it was suggested to him, in the cross- examination by Krishan Chand, that the possession of the suit land remained with the plaintiff (Krishan Chand) upto the year 1973, which suggestion clearly shows that Krishan …10… Chand lost the possession in the year 1973, when mutation Ex. P-4 was attested. 20. It has been argued, on behalf of Krishan Chand (appellant in RSA No.90 of 1995) that this Court has held that unless possession is delivered to a party to the partition proceedings, in execution of instrument of partition, it cannot be said that such a party had been put in possession of the land allotted to it. Citations are: Gopi Chand and another versus Sonam Dass and others, 1998(1) SLC 488, and Khem Dutt and others versus Palkia and another, ILR (Himachal Series) (1982) 643. 21. Neither of the two precedents relied upon comes to the rescue of appellant Krishan Chand. In Gopi Chand’s case (supra), a party, after getting the joint holding partitioned, filed a suit for possession of the land that had fallen to its share. It was in that context that it was held that the remedy available to the concerned party was to have obtained the possession, by seeking execution of instrument of partition, within three years time, prescribed in Section 134 of the Himachal Pradesh Land Revenue Act. In the second case of Khem Dutt and others, possession had been delivered to the parties, before the preparation of instrument of partition, as in the present case, and it was held that delivery of possession, before partition, does not extinguish the status of the parties as co-sharers. …11… 22. In the case on hand, it is the case of both the parties that they are not co-sharers. Both of them are saying that their status as joint owners has come to an end. Each side claims to be exclusive owner of the suit land. Therefore, this precedent is also of no avail to appellant Krishan Chand. 23. In view of the above discussion, it is held that there was no private partition, as claimed by Krishan Chand (appellant in RSA No.90 of 1995). The alleged private partition of 1926 was no better than a family arrangement. Partition took place through the agency of Revenue Officer, only when Kamla Devi, one of the legal heirs of Hari Ram, filed an application for partition of the entire area of joint Khata, together with Khasra No.50, which, according to Krishan Chand, had fallen to the share of Hari Ram, in the alleged private partition, and in that partition suit land was allotted to Devi Chand and other co-sharers of his father and now it (the suit land) is in possession of Devi Chand and other legal heirs of Manu Ram. Substantial questions of law, on which the appeals were admitted, are answered accordingly. 24. As a result of the above discussion and answers to the substantial questions of law, appeals filed by Devi Chand are accepted. Consequently, judgments and decrees of the trial Court and the first Appellate Court, dismissing …12… his suit, are set aside and his suit is decreed, and he is declared to be owner in possession of the suit land and Krishan Chand (appellant in RSA No.90 of 1995) is restrained from interfering in his (Devi Chand’s) possession over the suit land. Declaratory decree passed by the trial Court that Krishan Chand and Kamla Devi are joint owners of the entire area of Khasra No.50, including the suit land, is set aside and the suit filed by Krishan Chand is dismissed. All the three appeals stand disposed of. August 3, 2010(sd) ( Surjit Singh ), J