RSA No. 3663 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH RSA No. 3663 of 2009 Date of decision:22.11.2011 Vir Vikramaditya and another ... Appellants versus Suraj Mal and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.V.K.Jindal, Advocate, for the appellants. Mr.P.R.Yadav, Advocate, for the respondents. ... JORA SINGH, J. Vir Vikramaditya and Jagdish Singh sons of Amar Singh filed this RSA to challenge the concurrent findings of the Courts below. Main suit for possession by way of partition of khasra No.36//7 (1-8) situated within the revenue estate of Village Kurar Ibrahimpur, District Sonepat, was instituted by the appellants on the allegation that the above said khasra number is gair mumkin land. Appellants are the owners to the extent of 10/21. Smt. Krishna, sister of the appellants, is the owner to the extent of 1/14 share. Initially, disputed plot was under cultivation but respondents No.1 to 4 purchased some land owned by Krishan Kumar, Roshni, Bimla and Santosh, i.e., LRs of Amar Singh, as per registered sale deed dated 20.5.1985. Respondents No.1 to 4 are in possession of the disputed number. After sale deed, construction was raised and at present, disputed number is gair mumkin. RSA No. 3663 of 2009 2 Contesting respondents No.1 to 4 contested the suit inter alia on the ground that the appellants and respondent No.5 are the sons and daughter of Amar Singh and they have inherited their shares in khasra Nos.36//7 (1-8) and 52/3 (2-4) along with other co-sharers. Krishan Kumar, Roshni, Bimla, Santosh and Joginder Sing, LRs of Amar Singh, had executed an agreement to sell dated 16.2.1985 to alienate 1 kanal 8 marla for residential purposes out of the land measuring 3 kanal 12 marlas. Possession of khasra No.36//7 was delivered. Later on, Krishan Kumar, Roshni, Bimla and Santosh sold land measuring 1 kanal 8 marlas vide registered sale deed dated 20.5.1985 to respondents No.1 to 3. Actual possession of khasra No.36//7 was delivered. Respondents No.1 to 3 are in actual possession of khasra No.36//7 (1-8) and they had constructed their residential houses in the year 1985 by spending huge amount. Respondent No.4 purchased land out of the share of respondent No.3 on 16.3.1995. Khasra No. 52/3 (2-4) was not shown in the jamabandi attached with the plaint to mislead the Court. Construction was raised with the consent of the appellants, respondent No.5 Joginder Singh and karta of HUF. Appellants and respondent No.5 attained majority about 15 years back. Main suit for possession by way of partition was dismissed by the trial Court and judgment and decree of the trial Court dated 25.8.2006 was upheld by the first Appellate Court. Learned counsel for the appellants argued that the appellants along with other LRs of Amar Singh were the owners of khasra Nos.36//7 (1-8). Appellants are the owners to the extent of 10/21. Smt. Krishna, sister of the appellants, is the owner to the extent of 1/14 share. Krishan Kumar son, Roshni widow, Bimla and Santosh daughters LRs of Amar RSA No. 3663 of 2009 3 Singh have executed sale deed (Ex.D3) and the vendees have taken possession of khasra No.36//7 (1-8) and construction was raised. Disputed number is gair mumkin. Partition is to be by the Civil Court and not by the revenue authorities. Agricultural land is to be partitioned by the revenue authorities but both the Courts below held that on account of partial partition for not joining killa No.53/3/1, suit for partition of khasra No.36//7 (1-8) is not possible but approach of the Courts below is not correct one and following questions of law arise for consideration:- “1. Whether the plaintiffs are entitled to possession of their share by partition of the suit property? OPP 2. Whether the plaintiffs have no cause of action to file the present suit? OPD 3. Whether the plaintiffs have no locus standi to file the present suit? OPD 4. Whether the suit is barred by limitation? OPD 5. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD 6. Relief.” Learned counsel for the appellants cited the authorities:- “1. 1983 PLJ 56, Arjan Singh vs. Hem Raj; 2. 1983 PLR 613, Suba Singh vs. Mohinder Singh; 3. 1987 SLJ 561, Khushal Singh and others vs. Gurdip Singh and others; 4. 1989 PLJ 7, Rattan Vs. Ram Saroop, and 5. 2006(2) CCC 99, Jai Narain vs. Smt. Sona Devi.” RSA No. 3663 of 2009 4 Learned counsel for the contesting respondents argued that no doubt, agricultural land is to be partitioned by the revenue authorities and gair mumkin land is to be partitioned by the Civil Courts but son, widow and daughters of Amar Singh have executed sale deed (Ex.D3) dated 20.5.1985 on the basis of agreement to sell (Ex.D2) dated 16.2.1985. Actual possession of khasra No. No.36//7 (1-8) was delivered to the vendees, i.e., contesting respondents. According to agreement to sell, both khasra Nos.36//7 (1-8) and 52/3 (2-4) were under cultivation but suit is qua khasra Nos.36//7 (1-8) only. Khasra No. 52/3 was not included intentionally by the appellants. One of the appellants, namely, Vir Vikramaditya while appearing in the Court then admitted that at the time of sale, he was about 15/16 years old. Main suit was after 19 years from sale. He has also admitted that the respondents have raised construction and the disputed number is near the pond. Between pond and disputed number, there is a road. Now the disputed number has come within the new abadi of the village. At the time of sale, both the numbers were under cultivation. Vir Vikramaditya also admitted that they are in possession of khasra No. 36//7 (1-8) and qua this number, his brother has filed civil suit and he is cultivating about 14 killas but no jamabandi and khasra girdawari on the file to show that there is no construction on any other khasra number which is under the possession of the appellants. As per sale deed, actual possession of disputed number was handed over to the contesting respondents by the son, two daughters and widow of Amar Singh. At the time of sale, appellants were minors but after attaining majority, they remained silent and continued to see construction raised by the contesting respondents. Vir Vikramaditya also admitted that he cannot tell whether the property was RSA No. 3663 of 2009 5 purchased for construction purposes or for agricultural purposes. Disputed number is near the main road and now has come within the new abadi of the village. Appellants are also owning residential houses but no reference of that residential house. 14 killas are also under cultivation of the appellants but not a word by the appellants that there is no construction in any khasra number. Agricultural land was sold and after sale, construction was raised. Both the Courts rightly observed that suit is for partial partition because all the khasra numbers are not included. As per jamabandi (Ex.P1/B), Amar Singh son of Bholu Singh is also one of the co-sharers but he was not impleaded as one of the respondents. Sale of disputed number was on 20.5.1985 and after sale, construction was raised. Now the disputed number has come within the new abadi of the village, i.e., on the main road. To extract payment from the contesting respondents, main suit for partition of only khasra No.36//7 (1-8) was instituted with the connivance of other LRs of Amar Singh, who have executed sale deed (Ex.D3) dated 20.5.1985. Learned counsel for the respondents cited following authorities:- “1. 1994 HRR 434, Kenchegowda (deceased) by Legal Representatives vs. Siddegowda alias Motegowda; and 2. 2009(1) RCR (Civil) 600, S.Satnam Singh and others vs. Surender Kaur and another.” Admittedly, as per jamabandi (Ex.P1/B), appellants are owners to the extent of 10/21 share. Krishna, sister of the appellants, is owner to the extent of 1/14 share. Amar Singh son of Molu and Suraj Mal son of Sohan Lal to the extent of 19/168 share, Daya Nand to the extent of 57/336 share, Balbir Singh to the extent of 927/10416 share and Joginder Singh son RSA No. 3663 of 2009 6 of Krishan is the owner to the extent of 840/10416 share in khasra Nos.36//7 and 52//31 (1-14). Ex.D2 is the copy of agreement to sell dated 16.2.1985 and this agreement was by Krishan Kumar, son, Roshni, widow, Bimla and Santosh, daughters and Joginder Singh to alienate 1 kanal 8 marlas out of land measuring 3 kanals 2 marlas. Ex.D2 shows that both khasra numbers, i.e., 36//7 (1-8) and 52//3/1 (1-14) are chahi, i.e., under cultivation but as per sale deed (Ex.D3), land measuring 1 kanala 8 marla was sold out of land measuring 3 kanal 2 marla bearing khasra Nos.36//7 (1-8) and 52//3/1 (1- 14) . Vir Vikramaditya, one of the appellants, appeared in Court, then stated that he along with his brother Jagdish Singh is owner to the extent of 10/21 share. Respondents No.1 to 4 have purchased property form Krishan Kumar, Roshni, Bimla and Santosh as per sale deed (Ex.D3) and they have raised construction but they have occupied more land than the purchased one as per sale deed (Ex.D3). Entire khasra No.36//7 (1-8) is in possession of respondents No.1 to 4. In cross-examination, admitted that at the time of sale, he was 15/16 years' old. They had no source of income except agriculture. He cannot cite any purpose for the sale of disputed property. He cannot tell about the area of khasra No.36//7(1-8) and whether they have share in khasra No.52//3/1. Disputed property is near the pond and there is road in between pond and disputed property. He is cultivating 14 killas of land. So, from the evidence on file, one thing is clear that appellants are co-sharers in the disputed number. Khasra Nos.36//7(1-8) and 52//3 were under clutivation and only after sale vide sale deed (Ex.D3), construction was raised in khasra No.36//7(1-8). At the time of sale, RSA No. 3663 of 2009 7 appellants were minors. Vir Vikramaditya was 15/16 years' old. Appellants attained majority but after about 19 years, main suit for partition of khasra No.36//7(1-8) was instituted. Second khasra No.52//3/1(1-14) was not included because that khasra number was not gair mumkin but one thing is clear that the appellants along with their mother and other family members were residing separately. That means, they have separate residential houses but no reference of those residential houses in the plaint including khasra No.52//3/1(1-14). Appellants are also cultivating land measuring 14 killas but no jamabandi of 14 killas of land showing this fact that there is no construction in any khasra number. Vir Vikramaditya when appeared in Court, then did not state a word that except the disputed number, there is no construction in any khasra number under cultivation. Not a word was stated that the appellants or other LRs of Amar Singh are not owning or occupying any residential houses. So, filing of suit after about 19 years of attaining of majority shows that suit was instituted by the appellants with the connivance of other LRs of Amar Singh to extract payment from the contesting respondents who raised construction over khasra No.36//7(1-8). In Khushal Singh and others' case (supra), it was observed by the Court that when houses are constructed over the agricultural land, it ceased to be agricultural land and does not fall in the definition of `land' as per Punjab Land Revenue Act. Gair mumkin land is to be partitioned by the Civil Court and not by the revenue authorities. In Rattan's case (supra), it was held by the Court as under:- “Partition of agricultural land- Plaintiff filing civil suit for partition of ghair mumkin bara and ghair mumkin ghaeir- Other agricultural land which was also joint not included in the suit- RSA No. 3663 of 2009 8 Suit cannot be dismissed on account of partial partition- Partition of agricultural land could be done by Revenue Courts.” In Arjan Singh' case, Suba Singh's case, and Jai Narain's case (supra), the Court observed that where no report made to Patwari and no proceedings taken under the Punjab Land Revenue Act for finalisation of partition, then partition cannot be recognised. All the co-sharers continue to be joint owners. As discussed earlier, appellants are the sons of Amar Singh son of Meehu. Jamabandi (Ex.P1/B) for the year 1999-2000 shows that Amar Singh son of Bholu and Suraj Mal are the owners to the extent of 19/168 shares. Suraj Mal is one of the respondents but Amar Singh son of Bholu is not impleaded as one of the respondents. When Amar Singh son of Bholu is also one of the co-sharers in the disputed number, then no explanation why he has not been impleaded as one of the respondents. Learned counsel for the appellants failed to convince as to how disputed number can be partitioned in the presence of some of the co-sharers when all co-sharers are not parties to the suit. In Kenchegowda's case (supra), Hon'ble Supreme Court observed as under:- “Some family properties were not included in the suit for partition- Nor all the co-sharers were impleaded- Partial partition of family property, in such circumstances, is not warranted by law.” Allegation of the appellants in para No.3 of the plaint is that initially disputed land was under cultivation but respondents No.1 to 4 after RSA No. 3663 of 2009 9 purchasing shares of Krishan Kumar, Roshni, Bimla and Santosh as per sale deed (Ex.D3) dated 20.5.1985, have raised construction. While appearing in Court, Vir Vikramaditya admitted that now the disputed number has come within the new abadi of village. There is a pond and between pond and disputed number, there is a pucca road. At the time of sale, he was student and his mother used to spend on his education. He cannot tell whether disputed number was purchased for construction or for cultivation. They are in possession of khasra No.36//7(1-8) and his brother has filed suit qua this property. They are cultivating 14 killas. That means, appellants have residential house also in the village but no reference of residential house over any khasra number. Appellants should have produced revenue record to show that in khasra No.52//3 and other 14 killas under cultivation, there is no construction on any portion of above said 14 killas. Only one khasra number, i.e., 36//7 was chosen. As discussed earlier, agricultural land is to be partitioned by the revenue authorities and gair mumkin abadi is to be partitioned by the Civil Court. As per jamabandi, khasra No.52//3 is under cultivation but no proof as to whether there is any construction in any khasra number under possession of appellants. Secondly, no explanation regarding residential house of the appellants and their mother. Brother of the appellants along with their two sisters and mother sold land measuring 1 kanal 8 marlas in the year 1985. After sale, construction was raised by the contesting respondents. At the time of sale, appellants were minors but after attaining majority, they remained silent for about 19 years. After construction was raised, when the property came within the new abadi of the village and is adjacent to pucca road, then the appellants seems to have filed the present suit with the RSA No. 3663 of 2009 10 connivance of their sisters, brother and mother who sold 1 kanal 8 marlas of land vide sale deed (Ex.D3). In Satnam Singh and others' case (supra), Hon'ble Supreme Court in para No.16 of the judgment held as under:- “16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the Court would not be entitled to pass a decree even in relation thereto.” Khasra Nos.36//7 (1-8) and 52/3 (2-4) were under cultivation. As per sale deed (Ex.D3) dated 20.5.1985, land measuring 1 kanal 8 marlas was purchased. Possession of khasra No.36//7 was delivered, then construction was raised by the respondents. Agricultural land is to be partitioned by the revenue authorities, whereas gair mumkin property is to be partitioned by the Civil Court, but suit is qua only one khasra number, i.e., khasra No. 36//7. No evidence on the file from the side of the appellants that why residential houses in possession of the appellants or other LRs of Amar Singh were not included for partition of immovable property. One of the co-sharers was also not impleaded. So, both the RSA No. 3663 of 2009 11 Courts below rightly opined that suit for partial partition is not maintainable. Evidence on the file was not misread and findings of the Courts below are not perverse. No substantial question of law is involved. Suit was got filed by other LRs of Amar Singh simply to extract payment from the vendees as per registered sale deed (Ex.D3) dated 20.5.1985. For the reasons recorded above, appeal without merit is dismissed. 22.11.2011 ( JORA SINGH ) pk JUDGE