RSA No. 3403 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3403 of 1986 Date of decision: September 23, 2011 Surjit Singh and another ...Appellants Versus Batna Ram and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. ML Sarin, Senior Advocate with Ms. Divya Sodhi, Advocate, for the appellants. Mr. Vikas Behl, Advocate, for the respondents. GURDEV SINGH, J. This second appeal has been preferred by the unsuccessful plaintiffs/appellants against the judgment and decree dated 23.8.1986 passed by the Additional District Judge, Jalandhar, vide which he dismissed the first appeal preferred by them against the judgment and decree dated 23.10.1984 passed by Sub Judge Ist Class, Nawanshahar, dismissing their suit for declaration regarding the land in dispute situated in villages Karyam and Mehandpur, fully detailed in the heading of the plaint. Originally the suit was filed by Mehar Singh, who died after the passing of the decree by the trial court and the first appeal was preferred by his legal representatives Surjit Singh and Jarnail Singh, being his sons. He filed suit for declaration to the effect that being a co-sharer in the land in dispute, which is joint holding, is entitled to seek partition thereof through RSA No. 3403 of 1986 2 revenue courts and to get separate possession of his share. He pleaded in the plaint that he is a co-sharer in the land in dispute and is not being allowed to derive full benefit of the share from this land by the defendants. He filed an application for partition of the joint land in which defendant No.1 raised a question of title by pleading that the same had already been partitioned and cannot be further partitioned. It was wrongly held by the Assistant Collector Ist Grade, Nawanshar, that the question of title was involved and, as such, the revenue authorities cannot partition this land and that he should first get the matter decided from the civil court. That order of the revenue authorities is against the law. There had never been any such family partition of this joint land. The order of the revenue authority has caste a cloud on his right and, therefore, he filed suit for aforesaid declaration, after the defendants refused to admit his claim. The suit was contested by the defendants. Batna Ram-defendant No.1 in his written statement denied the contentions of the plaintiff and, inter-alia, pleaded that the parties partitioned the land in dispute in the year 1960 with the help of their uncle and close relations. In that partition, the land situated in village Mehandpur was given to the plaintiff, whereas the land situated in village Karyam was given to him. That partition was given effect to in the revenue record. Since the date of that private partition, the parties are coming in possession of their respective land which had fallen to their respective shares. At the time of partition, there was a double storey building in village Mehandpur and the land situated in that village was more valuable as it was yielding two crops a year. In addition to that there was a house for tethering the cattle. It was in those circumstances that the land, which was less in area, situated in village Mehandpur was given to the RSA No. 3403 of 1986 3 plaintiff, whereas the land which was more in area and was situated in village Karyam was given to him. There was a garden belonging to the previous owner in that land who had got all the trees cut and the land was uneven and barren. He with great efforts brought that land under cultivation, even though there was no water in the well existing in that land and he had to install a tubewell. He constructed residential and non residential houses in village Karyam by spending Rs. 1 lakh. All these improvements were made by him, after the partition of the land, as exclusive owner. After the partition, the plaintiff was not a co-sharer in the land in dispute and his application for partition was rightly rejected by the revenue authorities. He has no locus-standi to file the suit regarding the land situated in village Karyam. In case the suit of the plaintiff is decreed, then he is entitled to reimbursement regarding the expenses incurred by him for making the above said improvements. Defendants No. 2, 4, 5 and 6 filed joint written statement in which they denied the contentions of the plaintiff and supported the stand of defendant No.1 that the partition was effected about 20 years back and they are coming in possession of separate parcels of land since then. They also supported the order of the revenue authorities being legal and genuine. They pleaded that the plaintiff has no cause of action to file the suit and the civil court has no jurisdiction to decide the same and that the same is not maintainable in the present form. In the replication to the written statement of defendant No.1, the plaintiff denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleading of the parties, the following issues were framed RSA No. 3403 of 1986 4 by the trial court:- 1. Whether the plaintiff and defendant No.1 are co-sharers in the land in dispute? OPP 2. Whether there was any family partition between the plaintiff and defendant No.1. If so to what effect ? OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. If issue No.1 is proved, whether the plaintiff has no locus standi to file the suit? OPD 6. Whether the plaintiff is liable to be ejected as per preliminary objections No. 1 and 3 of the written statement? OPD 7. Whether the suit has been filed against a dead person. If so, to what effect? OPD 7-A Whether this court has the jurisdiction to try the present suit? OPP 8. Relief.” To succeed in the suit, the plaintiff examined his attorney Pushkar Singh as PW-1, Mehanga Singh (PW-2) and Darshan Singh (PW- 3), besides tendering in evidence certified copies of the jamabandi etc. On the other hand, the defendants examined Ram Kishan, Patwari (DW-1), Ram Rachhpal, Patwari (DW-2), Siri Ram (DW-3), Piara Singh (DW-4), Hari Singh (DW-5), B.D. Joshi (DW-6), Jagdish Chander (DW-7), Ved Parkash Main (DW-8), Nasib Chand (DW-9), Rattan Singh (DW-10), Gian Singh RSA No. 3403 of 1986 5 (DW-11) and Hans Raj (DW-12). Gurmel Singh, attorney of Batna Ram— defendant No.1, stepped into the witness box as DW-13. After going through that evidence and hearing the learned counsel for both sides, the trial court decided issues No. 1 and 2 against the plaintiff and the other issues in his favour and resultantly dismissed his suit. As already said above, the first appeal preferred against the judgment and decree was dismissed by the first appellate court. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that substantial question of law arises in the present appeal, which requires adjudication. A perusal of the judgment of the first appellate court shows that no reasons have been given in support of the findings recorded by that court and, as such, it cannot be said to be a judgment in the eyes of law. That itself is a ground for allowing this appeal, setting aside the judgment and decree of the first appellate court and for remanding the appeal to that court for deciding the same afresh. He further submitted that no private partition effected between them can be approved by the civil court unless and until the same has been given effect to in the revenue record. In the absence of any such entry in the revenue record regarding private partition, the civil court cannot take any cognizance thereof and no amount of oral evidence produced to that effect can be looked into. The learned trial court as well as the first appellate court committed an illegality while recording the finding of partition on the basis of the oral evidence. There is no such entry of private partition in the revenue documents pertaining to the suit land. He further submitted that the plaintiff filed an application for private partition before the revenue authority in which defendant No.1 took up the RSA No. 3403 of 1986 6 defence that the application was bad for partial partition as the land of both the villages was not included. When the plaintiff again resorted to the remedy for partition of joint land before the revenue authorities, after including the lands of both the villages, defendant No.1 took up a new plea that the joint land already stands partitioned. In view of the stand taken by him in the previous application, he was estopped from taking up the plea of private partition in the second application. From the evidence produced by the plaintiff, it stands proved that this joint land was never partitioned and the plaintiff is still a co-sharer therein. A cloud has been caste on his right to get the same partitioned and, as such, he filed the suit for declaration to the effect that he being a co-sharer is entitled to get this land partitioned through revenue agency. He tried to support his arguments by means of the following rulings. (1) Suba Singh versus Mohinder Singh and others 1983 P.L.J. 429; (2) Balraj Taneja and another v. Sunil Madan and another AIR 1999 Supreme Court 3381; (3) Karnataka State Road Transport Corporation versus Smt. Asmathunnisa and others 2001 (1) PLR 234, On the other hand, it has been submitted by the learned counsel for the defendants that the ruling cited by the counsel for the plaintiff (Suba Singh versus Mohinder Singh) is no more an authority on the subject, in view of the fact that the same stands over ruled impliedly by a judgment of this Court rendered in Ajmer Singh Versus Dharam Singh 2006 (2) RCR (Civil) 541. By placing reliance on the judgments of Hon'ble the Supreme Court, it was held that non-affirmation of the private partition in the revenue RSA No. 3403 of 1986 7 record will not render such partition as nugatory. Therefore, the lower courts were very much within their jurisdiction to decide the factum of private partition on the basis of the oral partition and in view of the finding recorded by the revenue authorities, in the application filed by the plaintiff himself for partition of this land, in which defendant No.1 took up specific stand that the joint land already stands partitioned by means of private partition. Such a finding recorded by a court of limited jurisdiction operates as res-judicata and the same cannot be re-adjudicated upon by the civil court. That argument was supported by him by relying on a single bench judgment of this court rendered in Smt. Dhiro versus Sadhu Singh 2007 (1) R.C.R. (Civil) 821. In view of these submissions and the grounds of appeal, the following substantial questions of law arise in the present appeal:- i. Whether the judgment of the first appellate court is no judgment in the eyes of law and is a ground for setting aside the same and for remanding the appeal for deciding the same afresh? ii. Whether the private partition effected between the parties become nugatory, merely on the ground that the same has not been given effect to in the revenue record? Iii. Whether the finding recorded by the revenue authorities regarding the partition of the land operates as res- judicata? Question No.1 In Karnataka State Road Transport's case (supra), the following order was passed by the High Court, while dismissing the appeal:- RSA No. 3403 of 1986 8 “Heard. No grounds. Rejected.” It was held by the Hon'ble Supreme Court that the appeal was not disposed of in accordance with law. That finding was recorded, in view of the contention raised by the counsel that the High Court in the first appeal had not considered all the relevant points and has not come to a reasoned conclusion for agreeing with the trial court. In Balraj Taneja's case (supra), the Hon'ble Supreme Court laid down the law regarding the essentials of a judgment. It was held as under:- "40A. Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4 (2) which says that a judgment : "shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision." It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.” In the present case, it may be said that the first appellate court has not given sound reasons, while upholding the finding recorded by the trial court. A perusal of that judgment shows that the court not only noticed all the facts, the questions involved and the evidence produced by the RSA No. 3403 of 1986 9 parties, but also the reasons, which were recorded by the trial court for deciding those questions in favour of the plaintiff. The reasons recorded in support of the finding may not be sound and elaborate but it is a fact that the reasoning was recorded for agreeing with the trial court. It cannot be said that it is no judgment in the eyes of law. Therefore, this question is decided against the plaintiff. Question No.2 Much reliance has been placed by the learned counsel for the plaintiff on Suba Singh's case (supra). It was held therein that the partition of agricultural land is governed by Section 111 onwards of the Punjab Land Revenue Act. Even if the agricultural land is stated to be partitioned outside the court that partition becomes valid only if the same is brought to the notice of the revenue authorities and sanction is obtained and only thereafter the khatas (joint holdings) are divided. Otherwise, the person recorded as owner in the same khata continues to be joint owner. The correctness of the law laid down in this judgment was doubted in Ajmer Singh's case (supra), after taking notice of various judgments of Hon'ble the Supreme Court on the said subject. It was held therein that the judgment in Suba Singh's case runs counter to the decision of the Hon'ble Supreme Court (in Sankalchan Jaychandbhai Patel and others v. Vithalbhai Jaychandbhai Patel and others, 1997 (1) RCR (Civil) 565: (1996) 6 Supreme Court Cases 433; Durga Das v. Collector and others, 1997 (2) RCR (Civil) 84: (1996) 5 Supreme Court Cases 618; and Baleshwar Tewari (dead) by LRs and others v. Sheo Jatan Tiwary and others, (1997) 5 Supreme Court Cases 112) and that those judgments have not noticed the fact that private partition is nothing but mutation of separate portion of the land which has fallen to RSA No. 3403 of 1986 10 the share of the respective parties. It was also held that the jurisdiction of the revenue authorities in respect of private partition is only of affirmation of partition and that too is directory. It is open to the parties to prove the private partition de hors the affirmation of the partition by the revenue authorities in terms of Section 123 of the Act. Therefore, it is open to the parties to lead evidence independent of order of affirmation under Section 123 of the Act to prove that there was a private partition. The non affirmation to private partition in the revenue record will not render such partition as nugatory. Therefore, the courts below did not commit any illegality while coming to the conclusion that the land in dispute had already been partitioned, though that partition had not been given effect to in the revenue record. This question is decided accordingly. Question No.3. The plaintiff proved on record certified copy of order dated 28.3.1972 Ex. P.2. A perusal of the same shows that he filed an application before the Assistant Collector Ist Grade for partition of the land situated in village Karyam on the ground that the same was jointly owned by the parties and was liable for partition. The defendant took up the plea that the other joint property situated in village Mahandpur has not been included and, as such, the application was bad for partial partition. The application of the plaintiff was dismissed on that ground. He preferred an appeal against that order, which was dismissed by the SDO (Civil), Jalandhar, vide order dated 15.11.1972, certified copy of which has been proved on record as Ex. P.3. The plaintiff proved on record certified copy of order dated RSA No. 3403 of 1986 11 23.7.1980 Ex. P.4, which was passed in the appeal preferred by him against the order passed by the Assistant Collector Ist Grade on 18.8.1979, dismissing his application for partition of the present land in dispute situated in both the villages. The revenue authorities came to the conclusion that the land already stands partitioned between the parties. It is very much clear from the evidence produced by the parties that no revision has been preferred against the said order and the same has become final. After this order became final, the same will operate as res-judicata in the proceedings before the civil court as was held by this Court in Smt. Dhiro's case (supra). Therefore, the finding recorded by the revenue authorities that the land in dispute already stand partitioned between the parties operates as re-judicata and the same cannot be re-adjudicated. The question is accordingly decided against the plaintiff and in favour of the defendants. In view of my discussion on the above questions, I conclude that there is no merit in this appeal and the same is hereby dismissed. September 23, 2011 (GURDEV SINGH ) prem JUDGE