R.S.A. No.1643 of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1643 of 2004 Date of Decision:18.12.2008 Darbara Singh and others .....Appellants Vs. Tara Chand and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Amit Jain, Advocate for the appellants. Mr. V.B. Aggarwal, Advocate for respondents No.1 and 2. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 8.1.2004 passed by the Court of learned Additional District Judge, Kurukshetra whereby he dismissed the appeal preferred against the judgment/ decree dated 23.12.1999 vide which the Court of learned Civil Judge (Junior Division), Kurukshetra had dismissed the suit. The facts which form the backdrop of the suit are that Rattan Singh, Tara Chand and Dhan Singh defendants and their brothers, Inderaj and Chattar Singh sons of Heera alias Hari Singh were joint owners in possession in equal shares of the land measuring 182 kanals 19 marlas as delineated in the plaint. The constant dispute in relation to the sharing of the usufruct of the land, disturbed peace in the family and eventually, a R.S.A. No.1643 of 2004 -2- family settlement took place between the plaintiffs who are sons of Rattan Singh- defendant No.1, the co-defendants and Inderaj, Chattar Singh in the presence of relatives of the parties after harvesting Rabi crop in June, 1972. The land measuring 40 kanals comprised in Rectangle No.12, Khasra No.17 (8 kanal 0 marla), 18 (8 kanal 0 marla), 22 (8 kanal 0 marla), 23 (8 kanal 0 marla), 24 (8 kanal 0 marla) along with 1/5th share in the land comprised in Khasra No.154 (0 kanal 11 marla) situated within the revenue limits of Village Fattupur, Tehsil Thanesar, District Kurukshetra fell to the share of the plaintiffs in the family settlement and its possession was delivered to them at the spot and thus they are the exclusive owners in possession of the said land. The defendants agreed to get the revenue entries corrected in their names, but taking an undue advantage of the wrong entries in the jamabandi regarding the aforesaid land, the defendants started asserting their ownership by backing out from the family settlement, they gave a rise to the cause of action to the plaintiffs. On these allegations, the suit has been filed for declaration to the effect that the plaintiffs are the owners in possession in equal shares of the land measuring 40 kanals and in joint possession as owners to the extent of 1/5th share in khasra No.154 with consequential relief of permanent injunction restraining the defendants from interfering in the peaceful and lawful possession of the plaintiffs over the suit land. In answer to this claim, Rattan Singh, defendant father of the plaintiffs filed his written statement admitting the claim of the plaintiffs in entirety. Defendant No.2- Tara Chand and defendant No.3- Dhan Singh in their joint written statement inter-alia pleaded that they along with their brothers Indraj and Chattar Singh are owners in equal shares of the land and R.S.A. No.1643 of 2004 -3- are in exclusive possession. The plaintiffs are in possession of a portion of the land as licensees. The alleged family settlement has been denied. Traversing other facts in the plaint, it has been prayed that the suit may be dismissed with the costs. The following issues were framed by the learned trial Court:- 1. Whether the plaintiffs are owners in possession of the suit land as detailed in Para No.1 of the plaint, if so to what effect? OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD 4. Whether the plaintiffs have no locus-standi to file and maintain the present suit? OPD 5. Whether the defendants are entitled to special costs under Section 35-A C.P.C.? OPD 6. Relief. After hearing the learned counsel for the parties, besides examining the evidence on record, the learned trial Court dismissed the suit as noted supra. Feeling aggrieved therewith, the plaintiffs went up in appeal which was dismissed by the First Appellate Court. Being undaunted and dissatisfied therewith, they have preferred this regular second appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. The substantial question of law which arises for consideration R.S.A. No.1643 of 2004 -4- is “Whether in the facts and circumstances of the instant case, the plaintiffs/ appellants who have been proved to be in the actual physical possession of the suit land, as per family settlement since June, 1972, can be denied the declaration and the consequential relief of permanent injunction as prayed in the suit.” Mr. Amit Jain, Advocate appearing on behalf of the appellant stressing his every nerve canvassed at the bar that as is borne out from the evidence on record, the appellants are in continuous possession of the suit land since the date of family settlement, which has been accepted by the sons of Inderaj and Chattar Singh who have also appeared as witnesses in this case. So much so, the contesting respondents could not deny the family settlement in evidence. It stands established on the record that the parties in family settlement separated their shares and since 1972, they are in possession of their respective shares as owners. The learned Courts below have gravely erred in ignoring that the word “family” cannot be understood in a narrow sense and the family arrangement is not generally disturbed by the Courts. The oral as well as documentary evidence has been misconstrued. To buttress these stances, he has sought to place abundant reliance upon the observations rendered in re: Jai Pal v. Bharta and another, 2007(1) Haryana Rent Reporter 542 and Ajmer Singh v. Dharam Singh 2006(2) Punjab Law Reporter 25. Mr. V.B. Aggarwal, Advocate representing the respondents countered these arguments by urging with full force that the alleged family settlement was never acted upon, nor reported to the revenue authorities and that being so, it cannot be recognised. To cap it all, all the co-sharers being not party to the family settlement, the alleged one is a partial partition. He R.S.A. No.1643 of 2004 -5- has relied upon the observations rendered in re: Krishan Kumar Sharma v. Ashok Kumar Sharma and anohter, 1997 (Supplementary) Civil Court Cases 633 (P&H); Sher Singh v. Mahabir Singh, 2002(3) Recent Civil Reports 32; Milkha Singh (since deceased) through his legal representatives v. Makhan Singh and others, 2008(3) Simla Law Journal (P&H) 1788; Dalip Singh v. F.C. Cooperation, Punjab and others, 2007(1) Punjab Law Journal 414; Banarasi Dass v. Kaur Sain, 1992(2) RRR 233 and Suba Singh v. Mohinder Singh, 1983 Punjab Law Reporter 613. I have given a deep and thoughtful consideration to the rival contentions. On bogging down into Ex.P.8, the copy of the jamabandi for the year 1987-88, Chhajju, Mansa, Rasala, Smt. Nanho, Dhannu alias Narain Singh, Mahinder Singh etc., Mangat Ram, Chamel Singh and others, Inderaj, Tara Singh, Dhan Singh sons of Hira son of Sahu, Smt. Sanheri, Mamo, Balwan Singh, Malkhan Singh, Jaipal, Shamsher Singh, Ram Chander sons of Chattar Singh son of Hira, Sadhu, Raja Ram etc., Ranbir Singh etc., Mahinder Singh son of Smt. Chawali, Bhuro, Hari Singh, Smt. Nihalu, Karta son of Chet Ram, Madho, Ramdhari, Chatra sons of Nanak, Babu Ram, Phul Singh, Chhailu Ram, Sona Devi, Moti, Munshi etc., Vijay Singh, Partapa, Smt. Jaggo, Naathu, Jaimal Singh, Sher Singh, Jhandu Chhitru and others are the joint owners in the land measuring 2344 kanal 18 marlas comprising chahi land 2015 kanal 8 marlas and Nehri 329 kanal 10 marlas. It is not the case of the plaintiffs- appellants that the other co- sharers have transferred or relinquished their right in favour of the plaintiffs. Indeed, the plaintiffs are seeking declaration against their paternal uncle R.S.A. No.1643 of 2004 -6- Dhan Singh and Tara Singh, who are co-owners in the total land. As would be apparent from the plaint, all the co-sharers have not been impleaded as a party. In re: Krishan Kumar Sharma (supra), it has been ruled that “All the heads of the branches, females who have a share, are entitled to represent at the time of partition or in other words, are necessary parties in a suit.” Further in re: Sher Singh (supra), the plaintiff had challenged to decrees wherein his father had conferred proprietary rights on other brothers on the basis of family settlement. The plaintiff though he was a member of the family was not impleaded as a party. It was held that the proceedings in suit are bad in law and the decrees are invalid qua the right of plaintiff, who was not even made a party therein. In the present case, the record is quite barren to show that the widow of Hira alias Hari Singh- deceased was also a party to the family settlement, which allegedly took place in the month of June, 1972. In the absence of joining the necessary parties to the partition proceedings, the partition of property cannot be given affect to in its true perspective. All the members entitled to a share must be represented either expressly or impliedly in partition proceedings, may be in a private partition or partition through Court. Kamla Devi, the mother of the plaintiffs has a right to hold share separately. Mere fact that the parties are in separate possession of the land would not imply that the land had been duly partitioned amongst them. In Ex.P.8, Inderaj co-sharer has been shown in exclusive possession of the land measuring 37 kanals 18 marlas, whereas Sultan Singh, Darbara Singh and Lehri Singh, the plaintiffs have been shown in exclusive possession of the land measuring 40 kanal 0 marla. Chattar Singh co-sharer has been shown in the exclusive possession of the land measuring 34 kanal 11 marlas. Tara Singh, co-sharer has been depicted R.S.A. No.1643 of 2004 -7- in exclusive possession of the land measuring 69 kanal 19 marlas and so on. But it is not to be lost sight of the fact that the plaintiffs have been recorded as tenants at will in the aforesaid land measuring 40 kanal 0 marla. Being in such a capacity, they could not enter into family settlement. To crown it all, as per Ex.P.8, the above-mentioned land is still joint and all the members of the family were not party to the alleged family settlement. That being so, in the eyes of law, it cannot be described to be a family settlement. It is not the case of the plaintiffs that they are in adverse possession of the suit land to the exclusion of the other co-sharers enumerated above and have perfected their title qua the land in dispute. As such, the law does not warrant to declare the plaintiffs to be the exclusive owners of the said land measuring 40 kanal. The defendants Dhan Singh and Tara Chand have come up with a specific plea that the plaintiffs and their father Rattan Singh have no concern with the suit property. The plaintiffs are in possession of a portion of the land as licensee under the contesting defendants. Ex.P.2, the copy of jamabandi for the year 1967-68 tends to show that Inderaj Singh, Rattan Singh, Chattar Singh, Tara Singh and Dhan Singh sons of Hira Singh are the co-sharers in possession in equal shares of the land measuring 182 kanal 19 marlas and they are joint owners to the extent of 855/23846, shares in the total land measuring 2399 kanal 8 marlas. The land measuring 182 kanal 19 marlas shown in their joint possession forms part of the joint land measuring 2399 kanals 8 marlas. They are in joint possession being co-sharers. The plea of the plaintiffs is also being not supported by Ex.P.1, P.3, P.4 and P.7, the copies of jamabandies prepared from time to time. There is no evidence on record to reveal that all the co-sharers had participated in the alleged private partition. R.S.A. No.1643 of 2004 -8- The family settlement was not reduced into writing. In re: Ajmer Singh (supra), it has been held that “it is apparent that the revenue record by itself neither create or extinguish title. Since co-owners by mutual consent have entered into separate portions of land and are in the enjoyment of their respective portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of the revenue officer in section 123 of the Act is that of “affirmation” by partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of the Section 123 of the Act is restricted to the effect to point out that, in fact, partition has been made. Therefore, non affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act. 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 private partition de hors the affirmation of partition by the learned authorities in terms of Section 123 of the Act.” An identical view has been taken in Jai Pal's case (supra). Be that as it may, but the fact remains that herein the alleged family settlement is bad for non-joinder of necessary co-sharers. The alleged one being partial partition is bad in law. Sequelly, it cannot be given recognition either as family settlement or private partition. So, no mileage can be driven from the observations made in re: Ajmer Singh (supra) or Jaipal (supra). In view of the above discussion, it is held that the alleged family settlement being imperfect and bad in law cannot be made to be the R.S.A. No.1643 of 2004 -9- basis for the grant of declaration as well as the relief of perpetual injunction sought for. Thus, the substantial question of law stands answered accordingly. As a sequel of the above discussion, this appeal being bereft of any merit is dismissed with no order as to costs. December 18, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes.