IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 344 of 1999. Date of decision: 23.12.2010. Jaishi Ram(since deceased) through LRs Ranveer Singh & Ors. ….. Appellants. Vs. Gulat Ram (since deceased) through his LRs Jagdeep Kumar & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Ajay Kumar, Advocate. For respondents Nos. : Mr. G. D. Verma, Sr. Advocate 1(a) to 1(e) with Mr. B. C. Verma, Advocate Sanjay Karol, J.(Oral. S/Sh. Gulat Ram, Jaishi Ram, Mangat Ram and Rai Singh are sons of Sh. Prithu. Gulat Ram filed a suit for issuance of permanent prohibitory injunction restraining Jaishi Ram (defendant No.1) & Mangat Ram (defendant No.2) from interfering with his possession over the suit land bearing Khasra Nos. 363/1 & 363/2 situate in Chak Raika. Legal heirs of 4th brother Rai Singh were also arrayed as party defendants to the suit. Whether the reporters of the local papers may be allowed to see the Judgment? 2 2. Jaishi Ram and Mangat Ram resisted the suit on the ground that suit land stood partitioned between the parties and Khasra No. 363/1 stood allotted to the share of Jaishi Ram in the year 1961. Subsequently in the year 1972, Khasra No. 360/1 stood partitioned and allotted to Mangat Ram. Parties also acted upon the private partition. Proceedings of partition initiated by Gulat Ram under the provisions of Himachal Pradesh Land Revenue Act, 1954 (hereinafter referred to as the ‘Act’, in which order passed by the Revenue Officer (Kanungo), who prepared the mode of partition, did not confer any right on Gulat Ram with respect to the suit land. Consequently neither was the plaintiff in possession nor was he owner of the suit land. 3. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiff is in possession of the suit land, as alleged? …OPP 2. Whether the defendants are in possession of their respective share of the suit land on the basis of private partitions, as alleged? …OPD 3. Relief. 4. Plaintiff’s Civil Suit No. 119/1 of 1993 titled as Gulat Ram vs Jaishi Ram etc. stood dismissed by the trial Court in terms of judgment 3 and decree dated 20.12.1997. Trial Court held that in view of prior private partition, suit land fell to the share of the contesting defendants who were in possession thereof. In Civil Appeal No.21-S/13 of 1998 filed by Gulat Ram, learned District Judge, Shimla in terms of judgment and decree dated 1.7.1999 decreed the suit and set-aside the judgment and decree passed by Sub Judge Ist Class. 5. Instant appeal was admitted on the following substantial questions of law: 1. Whether the First Appellate Court could suo moto exhibit a document, on the file of trial Court, during the course of writing judgement without affording an opportunity to the opposite party to rebut such evidence? 2. What is the effect in case the First Appellate Court relies upon such a document (Ex.CX) as mentioned above? 6. Whether the First Appellate Court has discarded and ignored the relevant and material evidence and has also grossly misread the documentary evidence leading to palpably erroneous findings? 7. What is the legal effect on the judgement of the learned District Judge below if it has failed to formulate proper points for determination? 4 6. Ext. CX is copy of the order dated 3.5.1993 passed in case No. 1/91 titled as Gulat Ram vs. Jaishi Ram & Ors. before Assistant Collector Ist Grade (Settlement), Jubbal. Order dated 3.5.1993 stands confirmed and approved by superior authority on 29.10.1993. Perusal of this order reveals that notice in the partition proceedings initiated by Gulat Ram under the Act stood issued to all the parties. After taking into account the extent of the area and khasra numbers in possession of the respective parties, suit land stood allotted to Gulat Ram. Collector took into account statement of the parties, on which much reliance is placed by Mr. Ajay Kumar, learned counsel for the appellant. It is a matter of record that family arrangement, urged to be a private family partition by Mangat Ram and Jaishi Ram are Ext.DW-1/A and Ext.DW-1/B. Execution of this document is not in dispute. This document alone cannot be termed as a deed of partition. Properties were not partitioned by metes and bounds. Prior to its execution land also was not demarcated. At best it is a private arrangement for managing the agricultural land. From the revenue record (Ext.PW-1/A), it is 5 apparent that even though names of Mangat Ram and Jaishi Ram are reflected in the column of possession, but however land is still reflected to be jointly owned by all the parties. Undisputedly parties have not reported the factum of partition with the Revenue authorities. No action for complying with the provisions of Sections 35 & 135 of the Act was ever taken. Column showing Mangat Ram and Jaishi Ram to be in possession of the suit land, subsequently stood corrected. Order dated 29.10.1993 (Ext. CX) was passed by Asstt. Collector Ist Grade and possession of suit land handed over to Gulat Ram in terms of warrant of possession (Ext.PW-4/A) which was executed on 11.8.1995. As per report of Field Kanungo (Ext.PW-4/B) and notice (Ext.PW-4/C), possession stood handed over, in accordance with law, after issuance of notice to Mangat Ram and Jaishi Ram. Family partition is actually a private arrangement worked out by the parties for cultivation of their land. This has been held so in the connected appeal filed by Mangat Ram. 7. Before the trial Court appellant himself relied upon Ext. CX. In fact this very document 6 was subject-matter in Civil suit filed by Gulat Ram. Therefore, it would not lie in the mouth of the appellant to contend that it was not open for the Court below to have taken the document on record and exhibited the same. In fact document was already on record. Both parties were relying upon the same. Consequently it cannot be held that Court below erred in exhibiting the document and considering the same while deciding the issues between the parties. 8. From the statements of Mangat Ram, Jaishi Ram as also Mehar Singh, it is also quite apparent that no partition, as required in law, ever took place between the parties. Court below consequently rightly held that plaintiff’s possession on the suit land ought to be protected particularly when the same was handed over to him pursuant to and under the directions issued by a duly competent authority under the Act. 9. Perusal of the alleged date of partition (Ext.DW-1/B) executed in 1961 and (Ext.DW-1/A) executed in 1972-74 shows that these are unregistered documents. Partitioned land was not separately assessed to land revenue. No order 7 approving/affirming the said partition was passed by the authorities. Keeping in view the decision rendered by a Co-ordinate Bench of this Court in K.P.Singh alias Karanvir vs. Sewak Ram & Ors. Latest HLJ 2009 (HP) 694, Ext.DW-1/A & Ext.DW-1/B can also not be looked into for want of registration. 10. Thus it cannot be held that lower Appellate Court discarded and ignored relevant and material piece of evidence or grossly misread the documentary evidence leading to palpably erroneous findings. 11. For the aforesaid reasons, present appeal without any merit is dismissed. (Sanjay Karol) Judge 23rd December, 2010 (rana)