Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1258(M/S) of 2004 Kunwer Raj Singh - Petitioner. Versus Smt. Kadambari Devi and others - Respondents. Mr. Sudhir Kumar, Advocate for petitioner. Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. D.C.S. Rawat, Advocate for respondents 1 to 33. Mr. Sushil Vashist, Brief Holder for State/Respondent No.34. (Hon’ble B.S. Verma, J.) By means of this petition the petitioner has sought a writ for quashing the judgment and order dated 17.11.1998(Annexure No.5 to the writ petition) passed by Additional Commissioner (Administration) Garhwal Division and judgment and order dated 25- 8-2004 (Annexure No.6 to the writ petition), passed by Addl. Chief Revenue Commissioner, Uttaranchal, Dehradun. Briefly stated the facts of the case giving rise to the present writ petition are that on Sri Bhootha Ram predecessor of respondent Nos. 1 to 3 filed a suit U/S 209 of U.P. Z.A. and L.R. Act for possession over one Bigha land in Khata No.7 of village Johnpur, Patti Sukhro, Tehsil Kotdwar, District Pauri Garhwal against the predecessors of petitioner and respondents 4 to 33. According to Sri Bhootha Ram he had purchased one Bigha land from respondent No.4 by a registered sale deed dated 22.1.1981, copy of which has been annexed as Annexure No.2 to the writ petition. The predecessor of petitioner resisted the suit by filing written statement, copy of which has been annexed as Annexure No.3 to the writ petition. The learned trial court framed necessary issues and parties adduced their evidence. After hearing the parties the suit was dismissed on 27.5.1993, vide judgment and order annexed as Annexure No.4 to the writ petition. Aggrieved by the judgment and order of the Assistant Collector, Kotdwar, the plaintiff Bhootha Ram preferred an appeal before learned Commission, Garhwal Division, which was registered as Z.A. Appeal No. 51/1992-93, Bhootha Ram 2 Vs. Sher Singh and others. The appeal was transferred to the court of Additional Commissioner (Admn.) Garhwal for disposal, who allowed the appeal by his judgment, dated 17-11-1998 and set aside the judgment and decree passed by the trial court and decreed the suit. Further aggrieved by the judgment and order of learned Additional Commissioner, the petitioner preferred Z.A. Second Appeal No. 14 of 1998-99 which was thereafter transferred to the Additional Chief Revenue Commissioner, Uttaranchal after creation of the State of Uttarakhand under the provision of U.P. Reorganization Act, 2000 and the appeal was re-numbered as S.A. No. 2/2002-2003. The respondents 1 to 4, filed counter affidavit and denied the contents of writ petition. They alleged that the writ petition is not maintainable in view of the verdict of Apex Court in Surya Dev Rai case, reported in 2003 (6) SCC, page 675. Moreover the petitioner cannot be said to be aggrieved by the order dated 25-7-2004 inasmuch as the Additional Chief Revenue Commissioner directed the lower court to get the site inspection done of the land in dispute and to also get the demarcation done. Only thereafter the court has directed to give the possession of the land to the heirs of the purchaser i.e. respondents 1, 2 and 3. Bhootha Ram predeceased of respondents 1 to 3 purchased the land from Sher Singh vide registered sale deed dated 22.1.1981, situate in village Jaunpur in Khautani Khata No.7 measuring one Bigha for a consideration of Rs. 20,000/- and aforementioned sale deed was registered in the office of Sub-Registrar Lansdown. It is further alleged in the counter affidavit that on 18.11.1983, Bhootha Ram, predecessor of respondents 1 to 3, filed a suit for eviction in the Court of Assistant Collector, First Class Kotdwar, wherein he took a specific plea that the property in question was partitioned in the year 1964 and on that basis, Sher Singh sold his part of partitioned land to Bhootha Ram and the sale deed itself did not mention any co-ownership. Again in 1384 Fasli, when the land in dispute was sold, the name of petitioner was nowhere in the Khautani and hence he has no right to object as his name his name was entered in Khautani much later. At the time of sale, the name of Sher Singh and Balbir Singh appeared in Khata No. 7, 1384 Fasli as well as in Khasra plot Nos. 8/6 and 10/6, total area 0.71 acre, as a transferable 3 Bhumidhar and the name of plaintiff (predecessaor of respondents 1 to 3) and three others were mutated, which was never objected to by anyone for a long period. Moreover, even the Tehsildar in his report told that in the property in dispute, the plaintiff had possession and control. It is further alleged in the counter affidavit that the measurements of land purchased are clear in the sale-deed and under the provisions of Order-7, Rule-3 C.P.C. suit is maintainable as the boundaries of land are clearly demarcated. The petitioner has given full description of land in dispute and is there is not question of any doubt. Moreover, there are reports of Patwari and Amin with regard to the property in dispute. The Khautani produced by the respondents was much older than the Khautani produced by petitioner and hence older Khautani must be made the basis of adjudication and in the old Khautani there is no mention of the petitioner as co-owner of land in dispute hence he has no right to object. It is also alleged that as per the verdict of Hon’ble Apex Court in Surya Dev Rai case 2003 (6) SCC 675, petition is liable to be dismissed as the same is not maintainable. I have heard learned counsel for parties and perused the record. Learned counsel for the petitioner has submtited that the predecessor of respondents 1 to 3 had purchased the land from respondent No.4 out of his share in the joint land and the land has not been partitioned. No such document of partition was ever filed before the trial court. The land is still recorded as joint land in revenue record. The predecessor of respondents 1 to 3 at the most could have claimed himself to be the co-owner in Khata No. 7 and can claim only symbolic possession and can not claim in exclusive possession of any portion of joint land. The suit for possession could not be maintained by co-owner against other co-owner. The only suit for partition can be maintained. Therefore the suit filed U/S 209 of Z.A. and L.R. Act is not maintainable at all. It is further contended by learned counsel for petitioner that a co-owner can transfer interest in his share along with any joint land and cannot transfer specific portion of the joint land. The sale deed in favour of the predecessor of respondents 1 to 3 of the specific 4 portion is not legal and they cannot claim any right of interest in any specific portion of the land. Further, the possession was sought by the plaintiff of land which is not identifiable on spot, therefore, the orders of the Additional Commissioner and Additional Chief Revenue Commissioner are perverse orders, against the material on record and the same have been passed without appreciating the evenice on record and legal proposition and the same are liable to be set aside. Learned counsel for the petitioner also submitted that On the other hand the learned counsel appearing on behalf of the respondents has submitted that partition pertaining to the land in dispute had been done and the predecessor of respondents 1 to 3 had purchased the land from respondent No.4 out of his share, the boundaries of the land in dispute has been given in the sale deed and is identifiable at spot, hence the impugned orders passed by appellate courts, directing to hand over possession of land in dispute to the parties after appointing commission, is justified. He further submitted that once a property has been identified by boundaries, even if there is any discrepancy, normally, the boundaries should prevail. In support of his contention learned counsel has cited before me the case of Subhaga and others Vs. Shobha and others, reported in (2006) 5 Supreme Court Cases 466. I have perused the sale deed as well as copy of plaint. By prusal of sale deed it reveals that Sri Sher Singh had sold one Bigha land of his share of Khata No.7, boundaries of which have been mentioned in the sale-deed, but there is no mention of plot number of which the land sold, belongs. The sale-deed has no mention that the sold land is of plot No. 8/6 of 10/6 or plot No. 10/4 as claimed by the petitioner. The first appellate court has recorded a finding that in Khata No.7, two plot No. 8/6 and 10/6, exist, area of which is 0.71 acre, names of Sher Singh (seller) and Balbir Singh sons of Arnence Besali are recorded as Bhumidhar with transferable right and earlier also some land of this Khata had been transferred to three other persons and if this land is a joint property then why the co-owners did not raise objection against earlier transfer made to three persons. Name of petitioner did not find place in this Khautani hence he is not co-owner of this land. It was also held by first appellate court that 5 the boundaries given by Sher Singh in the sale deed belongs to Khasra No.8/6. The specific objection raised by petitioner was that the disputed land belongs to Khasra No. 10/4. Any how, the respondent Sher Singh did not adduce any evidence before the Assistant Collector as well as before the appellate courts that in fact there has been a family partition between the parties and the disputed land belongs to plot No. 8/6, as has been held by first appellate court. The Second Appellate Court remanded the case to the Assistant Collector with a direction to make spot inspection himself or to appoint commission and after spot inspection the disputed land be identified and demarcation be made and possession be delivered to the purchaser. It has also been observed in the order passed by Second Appellate Court that according to appellant Kunwer Raj Singh the land belongs to plot No. 10/4 and the plaintiff claims that the land belongs to plot No. 8/6 and disbelieved the report of Lekhpal and Amin on the ground that the reports are not clear. The Second Appellate Court himself has made observation that there is a dispute belonging to land of plot No. 10/4 or 8/6, therefore, it is not a case of demarcation but before passing a decree of eviction from the land in suit, the land has to be identified whether the land as mentioned in the sale deed showed by its boundary falls within plot No. 8/6 or plot No. 10/4. The order passed by the Second Appellate Court is against its own finding and the same is liable to be set aside. I have also gone through the case of Subhaga and others Vs. Shobha and others( supra) cited by learned counsel for the respondents and I find that the same does not apply to the facts of the case in hand, as the controversy in the case in hand relates to identification of land in dispute as well as partition in respect the land amongst the co-owners. It is also pertinent to mention here that the case of respondents 1 to 3 is that the joint property had been partitioned between the parties by family partition and for the first time papers relating to partition had been filed in writ petition. As these documents were not filed before the trial court as well as appellate courts, and in writ jurisdiction the same cannot be scrutinized, in view of the observation made by Hon’ble Apex Court in Surya Dev 6 Rai case reported in 2003 (6) SCC, page 675, therefore, these papers relating to partition filed with supplementary as Annexure No.1 be returned back to respondent No.1 for filing the same before the Assistant Collector, after keeping on file photo copy of these documents. The writ petition is allowed. The impugned orders passed by First Appellate Court and Addl. Chief Revenue Commissioner are set aside. The matter is remanded back to the Assistant Collector concerned for deciding the matter afresh after giving opportunity to both the parties to adduce evidence on the issue of identification of land in dispute and regarding partition of the land. The respondent/ plaintiff is also directed to make amendment in the plaint in order to add the number of disputed land of which the boundary has been mentioned in the sale deed, since Khata number changes when new Khautani is prepared and plot number changes only in the settlement or consolidation proceedings. If such an application is moved before the Assistant Collector, the same shall be allowed and opportunity be also given to the petitioner for filing additional W.S. as well as for adducing evidence. The Assistant Collector concerned shall pass fresh order on the point of identification of disputed land after considering the evidence to be adduced by parties, as well as the papers on the point of family partition, to be filed before him and decide the suit on merit afresh without being influenced by the earlier orders. Dated: 03-05-2011 (B.S. Verma, J. ) ISB