IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1932 of 1984 Date of Decision: 1.4.2010 Shmt.Shanti Devi and another. ....... Appellants through Shri C.B.Goel,Advocate. Versus Jage Ram and others. ....... Respondents through Shri Pritam Saini, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. Two of the defendants, namely, Smt.Chameli and Smt. Shanti Devi (called hereinafter as `the appellants') have filed this Regular Second Appeal against the judgments and decrees dated 20.8.1983 and 25.5.1984 passed respectively by the Senior Sub Judge, Sonepat (hereinafter described as `the trial Court') and the District Judge, Sonepat (referred to hereinafter as `the first appellate Court') whereby the suit of the plaintiffs-Mange Ram & Jage Ram was decreed and the appeal of the appellants was dismissed. The plaintiffs had filed a suit for possession by way of pre- emption against the appellants and two others, namely, Revti Lal and Thakur Dass sons of Tikan Ram (hereinafter called as `defendant nos. 3 & 4'). It was pleaded that defendant nos. 3 & 4 were owners in possession of R.S.A.No.1932 of 1984 -2- .... land measuring 15 kanals 2 marlas situated in village Fazilpur (for short, `the suit property'); that they sold the suit property to the appellants for a consideration of Rs.37000/- through a registered sale deed dated 5.4.1978; that prior thereto, the plaintiffs, vide sale deed dated 24.7.1964, had purchased land comprised in khasra no.10/15 which was part of the khewat in which the suit property was situated; that they had also purchased land measuring 4 kanals comprised in killa no.10/13 which again was apart of the khewat in which the suit property existed; that in that manner, they had become co-sharers in the khewat,whereas the appellants were strangers; that being co-sharers, the plaintiffs had a preferential right of pre-emption qua the suit property; that the plaintiffs were also tenants upon the suit property on the date of sale and on that account also, they had a pre-emptory right; that no notice was given to the plaintiffs before the sale in question and that all efforts to persuade the appellants to accept their right of pre-emption proved futile compelling them to file the instant suit. The appellants resisted the suit and pleaded that they were bona fide purchase of the suit property; that the sale was for consideration and that it pertained to specific khasra number which was also the case of the plaintiffs; that in view of this fact, the plaintiffs could not be considered to be co-sharers as the property stood partitioned amongst the previous co- owners. On the basis of the pleadings of the parties, the following issues were framed:- R.S.A.No.1932 of 1984 -3- .... 1. Whether the plaintiffs have a superior right of pre- emption?OPP 2. Whether the sale price of Rs.37,000/- was fixed in good faith and actually paid by the defendant Nos. 1 and 2 vendees to defendant No.3?OPD 3. In case issue No.2 is not proved, what is the market value of the land in suit?OPParties 4. Whether the plaintiffs are entitled to the stamp and registration charges, if so and how much?OPD 5. Whether the defendants-vendees Nos. 1 and 2 have made any improvement on the land in suit,if so, to what value and to what effect?OPD 5(a) Whether there is a private partition as alleged in para No.11 of the additional pleas, if so, its effect?OPD 6. Relief. After appraisal of the evidence on record, the trial Court decreed the suit of the plaintiffs by holding that they had a right to pre-empt the sale and also concluded that there was no private partition between the co-owners. Feeling aggrieved, the appellants had preferred an appeal which was dismissed by the first appellate Court resulting in the filing of the instant appeal. It is pertinent to mention here that during the pendency of the appeal, 10 kanals and 17 marlas of land out of the suit property was R.S.A.No.1932 of 1984 -4- .... acquired by the State of Haryana. C.M.No.2282-C of 1993 was filed by the appellants for permission to withdraw the amount of compensation and this Court, vide order dated 16.8.1993, as per settlement between the parties, permitted the appellants to withdraw the amount subject to their furnishing bank guarantee to the satisfaction of the Court below and they were also directed to deposit the said amount in a nationalised bank. Another application, bearing C.M.No.2596-C of 1993 was moved by the appellants for recalling order dated 16.8.1993 as they were unable to furnish a bank guarantee as directed. Vide order dated 9.9.1993, this Court disposed of that application with a direction to the Land Acquisition Collector, Faridabad to invest the amount of compensation in a scheme fetching maximum interest in a Nationalised Bank, initially for two years and then, renewable till the decision of the appeal. Learned counsel for the plaintiffs, at the outset, contended that since the suit property had been acquired, the appeal has been rendered infructuous, which plea was opposed by the learned counsel for the appellants, who submitted that only a portion of the suit property had been acquired and, therefore, the appeal cannot be said to have been rendered infructuous. Learned counsel for the appellants then argued that a partition had been effected between the co-owners of the khewat and, therefore, the plaintiffs had ceased to be co-sharers in the suit property. He referred to Exhibits D5, D8 and D9 to enhance his argument regarding the factum of R.S.A.No.1932 of 1984 -5- .... partition. He further submitted that some of the co-owners while appearing as DW5, DW6 and DW7 have supported the factum of partition and have stated that they were in possession of their respective shares and that there are bahi entries to that effect. He contended that the private partition is recognised as per the provisions of the Punjab Land Revenue Act,.1887 (for short, `the Act') and, therefore, even if it was not affirmed by the revenue authorities, the same had the binding effect and could not have been negated. He, thus, prayed that the appeal be accepted and the impugned judgments & decrees be set aside. On the other hand, learned counsel for the plaintiffs has disputed the above fact and contended that there was no partition as the same could only be effected by the orders of the revenue authorities and in view of this, such a private partition cannot be recognised. Besides, it was contended that Revti Lal had himself filed a suit earlier to challenge the alienation made by other co-owners of this khewat and in that suit, he had pleaded that the property was joint. According to him, this suit was filed in the year 1972 and Exhibit D8 which is being relied upon by the appellants, pertained to the year 1966 and in such an eventuality, this plea of partition could not be accepted. He further contended that the testimony of DW7- Dev Raj, who is a retired Patwari, shows that he is a family member of the appellants, whereas Exhibit D9 also shows that it pertained to the year 1962 and as mentioned above, subsequent thereto, Revti Lal had pleaded that there was no partition. He, thus, contended that the rights of the plaintiffs to pre-empt the sale in question stood crystalised, which was R.S.A.No.1932 of 1984 -6- .... rightly upheld by the Courts below. In support of his contentions, learned counsel for the plaintiffs placed reliance on Arjan Singh and others Versus Hem Raj and Ors., 1983 (1) All India Land Laws Reporter 440 (P&H); Shyam Sunder and another Versus Ram Kumar and another, 2001(3) R.C.R. (Civil) 754 (S.C.); Jagtar Singh Versus Jhabbar Singh, 2007(4) Law Herald (P&H) 3058; and Milkha Singh (since deceased) through his legal representatives Versus Makhan Singh and others, 2008(3) R.C.R. (Civil) 478 (P&H). I have thoughtfully considered the rival contentions and have gone through the whole record. The statements of DW5-Shyam Dass, DW6-Revti Lal and DW7-Dev Raj shows that all the co-sharers were in settled possession of their respective shares in the suit property, implying thereby that by their conduct, they had effected partition and merely because the same was not revenue authorities, it cannot beheld to be ineffective. Section 123 of the Act reads as under:- “123. Affirmation of partition privately affected. -(1) In any case in which partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. (2) On receiving the application, the Revenue Officer shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under Sections 119, 120, 121 and 122, or any of those sections, R.S.A.No.1932 of 1984 -7- .... as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.” A reading of the aforequoted provisions of law shows that the affirmation of a partition privately affected can be done by the revenue officials. As a direct consequence of the aforementioned provisions, it is implicit therein that a private partition is recognised by law. The reason why such affirmation is required by the revenue authorities is that the relevant entries may be made in the mutations and other revenue record so as to enable the State to recover the revenue as per its entitlement. The Supreme Court in Sanklchan Jaychandbhai Patel and others Versus Vithalbhai Jaychandbhai Patel and others, 1997(1) R.C.R. (Civil) 565 (S.C.), had held that the mutation entries are only to enable the State to collect revenue from the person in possession and enjoyment of the property and the right, title and interest as to the property shall be established de hors the entries. There are also documents, Exhibits D8 and D9 which record the factum of partition enter se between the co-owners. It is also to be noticed that the co-owners, while appearing in the witness box, have admitted this partition inter se between them. Thus, the co-owners who had effected partition, had respected the same and also respected their possession on the specific khasra numbers. The plaintiffs, who are pre-emptors, are alien to this arrangement and, therefore, they cannot question the factum of partition having been effected or not, more-so R.S.A.No.1932 of 1984 -8- .... when the parties to the partition support such a fact by their testimony and by their conduct. Therefore, the following questions of law arise for consideration of this Court:- (i)Whether in the wake of the partition effected between the co-owners before the sale, would the sale by one of the co- owner of a specific khasra number still give rise to the right of a pre-emptor on the ground that he is a co-sharer or not?' (ii) Whether the private partition is recognised by law or not? (iii) Whether in the absence of any affirmation by revenue authorities, the partition effected between the parties can be said to be a nullity? On the basis of the above discussion, it is held that a private partition, which is based on the conduct of the parties, is certainly recognised by law and merely because it has not been affirmed by the revenue authorities does not imply that partition had not been effected, although the affirmation thereof by the revenue officials is to record mutation and other revenue entries so as to enable the State to collect revenue from the person or persons who is/ are in possession and enjoyment of the property so partitioned. To fortify my view, the judgment of this Court in Ajmer Singh Versus Dharam Singh, 2006(2) R.C.R. (Civil) 541 (P&H) can also be relied upon. It is further held that when on the date of sale, a private partition had already been effected, the pre-emptor stood removed from the status of a co-sharer and had no pre-emptory right. The R.S.A.No.1932 of 1984 -9- .... questions of law stand answered accordingly. That apart, it is also necessary to mention that a major portion of the suit property, i.e. 10 kanals and 17 marlas, has already been acquired and only about five marlas is left. The pre-emption amount has also been got retrieved by the plaintiffs and no purpose would be served by upsetting the cart at this stage and hence,for this reason as well, I am of the opinion that substantial justice would be ensured by accepting the prayer of the appellants. Consequently, the instant appeal is accepted and the impugned judgments and decrees are set aside. April 1,2010 ( Mahesh Grover ) “SCM” Judge