R.S.A. No. 2875 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2875 of 1987 Date of decision: 03.02.2010 Ram Rikh ....Appellant Versus Kalu Ram and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. C.B. Goel, Advocate, for the appellant. Mr. Rao D.S. Nirban, Advocate, for the respondents. VINOD K. SHARMA, J.(ORAL) This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 4.4.1987, passed by the learned Courts below, vide which the suit for declaration and partition of joint property, stands decreed. The plaintiff/respondents filed a suit for declaration, pleading therein, that they were co-sharers in the land in dispute measuring 95 kanals 14 marlas with the defendant. The land in dispute is situated within the revenue estate of village Nainsukhpura, Tehsil Rewari, fully described in para No.1 of the plaint. Declaration was also sought against the order passed by the learned Assistant Collector Ist Grade, Rewari dated 1.4.1977, to be null and void and inoperative. The learned Collector had dismissed the application of the plaintiff/respondents for partition as the question of title was said to be involved. The parties were directed to seek declaration regarding title R.S.A. No. 2875 of 1987 -2- from the Civil Court. It was also pleaded case of the plaintiff/respondents, that portion of the land was acquired by the Irrigation Department and the compensation for acquisition was paid to both the parties in equal shares. The plaintiffs prayed for partition on the ground, that they did not want to continue jointly with the defendant. The suit was contested by the defendant/appellant, by pleading, that a private partition had already taken place between the parties and after the partition, the defendant had constructed a wall and installed pump-set by getting electric connection, in the land which fell to his share. It is also the plea of the defendant/appellant, that he had converted his share of land from bhud to chahi, which is well within the knowledge of the plaintiffs. The plaintiff/respondents were, therefore, estopped from filing the suit by their own act and conduct. The ground was taken that the order passed by the learned Collector was correct and binding. The parties were in possession of their specific portion of land, which fell to their share after the private partition. The suit was said to be bad for non-joinder of necessary parties. That defendant/appellant had become owner of the land by way of adverse possession. The suit was said to be barred by limitation and plea of estoppel was also raised. It was also pleaded, that the suit was not properly valued for the purposes of court fee and jurisdiction, therefore, not maintainable. The ground of improvement made in the land was also raised. On the pleadings of the parties, the learned trial Court framed R.S.A. No. 2875 of 1987 -3- the following issues: - “1. Whether order of Assistant Collector Ist Grade, Rewari, dated 1.4.1977 is null and void and not binding on plaintiffs? OPP 2. Whether plaintiffs are owners in possession in the extent of ½ share of the land in dispute? OP. 3. Whether suit is bad for non-joinder of necessary parties? OPD 4. Whether defendant has become owner of the land in dispute by way of adverse possession as alleged? OPD 5. Whether suit is not within time? OPD 6. Whether plaintiffs are estopped by their own act and conduct from filing the present suit? OPD 7. Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPD 8. Whether suit is not maintainable in the present form? OPD 9. Whether defendant has made any improvements over the land in dispute as alleged, if so to what effect? OPD 10. Relief.” Issues No.1 and 2 were taken up together. The learned trial Court took note of the fact, that the suit was earlier decreed vide judgment and decree dated 21.2.1979. The defendant/appellant had filed appeal. During the pendency of the appeal, the plaintiff/respondents withdrew the suit, with liberty to file a fresh one on the same cause of action, on the assertion that the suit filed by the plaintiff/respondents was to be dismissed on technical grounds. The plea raised was accepted. R.S.A. No. 2875 of 1987 -4- The present suit was filed, after withdrawal of earlier suit. In support of the plea that the land was joint, the plaintiff/respondents placed reliance on the copy of jamabandi for the year 1972-73, which showed that the land was owned by the father of the parties and one Ram Rikh. Both the sons of Assa Ram were recorded as co-owners in respect of the land described in para No.1 of the plaint. The learned Court, therefore, came to the conclusion that the property in dispute was shown to be the joint property of the plaintiffs and defendant. The contention of the appellant before the learned trial Court that the entries in jamabandi were not correct, as the parties were cultivating the land separately, was not accepted. Keeping in view the fact that in the jamabandi, khata No.46 was shown to be joint, which was described as gair mumkin garha and gair mumkin chah, it was shown in the joint possession of the parties. In view of the revenue record and the oral evidence on record, the learned trial Court decided issues No.1 and 2 in favour of the plaintiffs and against the defendant. In order to decide these issues, the learned trial Court also took note of the fact, that some land out of the land in dispute was acquired by the Government and compensation for the acquisition was shared by the parties equally. The compensation was awarded after the date, claimed to be the date of private partition. Issues No. 3 and 8 were also decided in favour of the plaintiffs and against the defendant. Issue No.4 was decided against the defendant/appellant. The suit was held to be within limitation, as it was filed within three years of rejection of the application for partition by the learned R.S.A. No. 2875 of 1987 -5- Collector. Issues No.6 and 9 were also decided in favour of the plaintiffs, whereas issue No.7 was not pressed. In view of the findings recorded, the suit of the plaintiff/respondents was decreed. In appeal, the findings recorded by the learned trial Court were affirmed. The learned lower appellate Court recorded the following finding to come to the conclusion, that there was no private partition between the parties, which reads as under: - “6. Looking to the facts of the present case, the defendant alleged private partition of the property but did not state as to when that private partition had taken place except that he asserted that it had taken place more than 12 years ago which does not establish the date on which the private partition had actually taken place. Much against the pleading of the defendant, the property had only partly been shown in separate possession of Lala and Ram Rikh whereas a part thereof in khatoni NO. 46 as also in khatoni No. 48 had been in joint possession of both the brothers vide Ex.P1 which negates the contention of private partition. 7. That apart, there is oral evidence of the plaintiff Kalu Ram PW1, Hardwari PW3 who have asserted that the property was joint of the parties and that they had half share each. PW2 Jagdish Singh deposed that out of the joint property of the parties, 26 kanals 1 marla of land was acquired, it was stated to be joint of Lala Ram and Ram Rikh in equal shares and compensation was awarded to them on 27.8.1976 in equal shares. That negated the contention of the defendant regarding private partition of the property because if the partition R.S.A. No. 2875 of 1987 -6- had taken place sometime in the year 1970 as per assertion of the defendant in his written statement, the compensation would have been awarded to them in accordance with the extent to which the land of the respective owners had been acquired or at least the parties would have put forward a contention to that effect before the Land Acquisition Officer. Ram Rikh defendant himself appeared to assert that the property had actually been partitioned equally between the brothers and that a site plan Ex. D1 had been prepared by the draftsman about it. The other witnesses examined in this connection are Ram Chander, the Ex- sarpanch of the village Gram Panchayat, and DW4 Manphul Singh who have all stated that the defendant Ram Rikh had obtained a connection of tubewell. DW3 Lallu Ram stated that the defendant had got the well made pucca about 20 years ago. If his statement was to be accepted, it would place the partition between the parties around 1963-64 which is contrary to the assertion of the defendant in his pleadings. In other words, the oral evidence as also the documentary evidence on the record led by the defendant did not establish in unambiguous terms the contention of the defendant regarding private partition or as alleged by him more so when it has been contradicted by the oral evidence of the plaintiff and his witnesses as also by the circumstances showing that the two brothers i.e., the predecessor-in-interest of the plaintiffs and the defendant had been treating the property as joint. Therefore, I am of the opinion that no fault could be found with the findings of the learned Subordinate Judge. Mr. C.B. Goel, learned counsel, appearing on behalf of the appellant contended that this appeal raises the following substantial R.S.A. No. 2875 of 1987 -7- question of law: - “1. Whether the suit of the plaintiffs for partition could be decreed by treating them to be co-owners merely because entry qua the private partition were not incorporated in the revenue record? In support of the substantial question of law, the learned counsel for the appellant referred to the pleadings as well as the statement of Lala Ram recorded in the previous suit, and placed on record as Ex. DW/1, wherein there was an admission by Lala Ram, that the parties to the suit were in possession of separate chunks of land, which were being cultivated by them by growing different crops. The learned counsel for the appellant also referred to the site plan which was admitted by the plaintiff/respondent. In the site plan the parties were shown in separate possession of the land. It was, therefore, contended that the judgment and decree passed by the learned Courts below cannot be sustained, as mere non-recording of the private partition in the revenue record could not lead to conclusion, that there was no private partition. In support of this contention, the learned counsel for the appellant placed reliance on the judgment of this Court in Ajmer Singh Vs. Dharam Singh, 2006(2) PLR 25, wherein this Court was pleased to lay down as under: - “16. Hon'ble Supreme Court in Sankalchan Jaychandbhai Patel and others v. Vithalbhai Jaychandbhai Patel and others, (1996)6 Supreme Court Cases 433, has held that mutation entries are only to enable the State to collect revenue from the person in possession and enjoyment of the property and the right, R.S.A. No. 2875 of 1987 -8- title and interest as to the property shall be established de hors the entries. The entries are one of the modes of proof of enjoyment of the property, mutation entries do not create any title or interest therein. Late, in Durga Das v. Collector and others, (1996)5 Supreme Court Cases 618, Hon'ble Supreme Court held that title to the property should be on the basis of the title they acquired to the property and no by mutation entries. In Baleshwar Tewari (dead) by LRs and others v. Sheo Jatan Tiwary and others, (1997)5 Supreme Court Cases 112, Supreme Court observed to the following effect:- “....Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with the entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs as his dominion and generally obeys, with moral fibre the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills”. 17. In view of the above binding precedents, it is apparent that the revenue record by itself neither create or extinguish title. Since co-owner by mutual consent have entered into separate portions of land and are in the enjoyment of their respect portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of R.S.A. No. 2875 of 1987 -9- the revenue officer in section 123 of the Act is that of “affirmation” of partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of 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” On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It may be noticed, that the learned Courts below have not non-suited the appellant, for want of entries of the private partition in revenue record, but on the ground that the appellant had failed to prove that there was any private partition. This conclusion was arrived at by the learned Courts below, firstly for the reason, that the appellant/defendant was unable to tell the date when the private partition had taken place, this coupled with the fact that private partition was not recorded in the revenue record, and also the fact, that compensation for acquisition of land was shared equally between the parties by treating them to be co-sharers. The acquisition was after the alleged private partition. It is well settled law, that there can be no partial partition. Once the evidence led showed that there was jointness of the parties qua certain properties. The learned Courts below rightly held that the appellant had failed to prove private partition. The judgment relied upon by the learned counsel for the R.S.A. No. 2875 of 1987 -10- appellant, therefore, cannot advance the case of the appellant that there was a private partition between the parties and the suit was, therefore, not competent. No other point is urged. In view of what has been stated above, the substantial question of law raised, does not arise for consideration, in view of the concurrent finding of fact recorded by the learned Courts below holding that there was no private partition and that the parties were joint. The plaintiff/respondents were rightly held entitled to decree prayed for. Even otherwise also the substantial question of law deserves to be answered against the appellant. It is needless to record that the learned Courts below while passing final decree, would take into consideration the well settled principle of partition. This regular second appeal is thus dismissed but with no order as to costs. (Vinod K. Sharma) Judge February 03, 2010 R.S.