IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 345 of 2000 Reserved on: 10.11.2010. Date of decision : 04.01.2011. Besar and another …Appellants. Versus Sher Singh and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Bhupender Gupta, Sr. Advocate with Mr. A.P.S. Jaswal, Advocate. For the respondents: Mr. B.K.Malhotra, Advocate. No. 1 to 8. Deepak Gupta, J. 1. This Regular Second Appeal is directed against the judgement dated 24.5.2000 passed by the learned District Judge, Mandi in Civil Appeal No. 19 of 1995, whereby he set-aside the judgement and decree of the Sub Divisional Collector, Jogindernagar and decreed the suit of the plaintiff. 2. Briefly stated the facts of the case are that Puran Chand predecessor-in-interest of respondents No. 1 to 7 filed a suit against the present appellants and the proforma respondents. According to the plaintiff, the 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 suit land measuring 51-17-90 bighas is situate in Mohal Bah, Tehsil Jogindernagar, District Mandi. In the revenue record ½ share is recorded in the name of the plaintiff and proforma defendants No. 3 and 4 and half share in the name of defendants No. 1 and 2. The contention of the plaintiff was that the suit land is owned and possessed by the plaintiff and proforma defendants No. 3 and 4 to the extent of ½ share and the remaining ½ share of the suit land is owned and possessed by defendants No. 1 and 2. It was also pleaded that there was some dispute regarding the demarcation of joint holdings of the plaintiff and proforma defendants and therefore proforma defendants No. 3 and 4 filed partition proceedings in the Court of the Assistant Collector 1st Grade, Jogindernagar and these proceedings culminated in an order of partition of their respective shares. The defendants No. 1 and 2 aggrieved by the order of partition preferred an appeal to the Sub Divisional Collector, Jogindernagar who vide his order dated 15.5.1990 held that a question of title was involved and directed that before partition is effected the question of title be got settled. The plaintiff claimed that this order is totally erroneous and illegal. The plaintiff contended that the land was joint and no family partition had 3 taken place and therefore prayed that the plaintiff and proforma defendants No. 3 and 4 be declared to be owners in possession of ½ share of the suit land and defendants No. 1 and 2 be declared to be owners of the remaining ½ share. It was also prayed that the order of the Collector be declared null and void. 3. The contesting defendants No.1 and 2 raised various objections including the plea that the suit was not within limitation. A plea was set up that the entries in the revenue record showing the plaintiff and defendants No. 3 and 4 as co-owners are wrong and illegal. It was alleged that the defendants No.1 and 2 were the true owners in possession of the suit land. The plea of the defendants was that Jindu, predecessor-in-interest of the plaintiff and proforma defendants No. 3 and 4 was the real brother of Fagnu predecessor-in-interest of defendants No. 1 and 2. Thus the plaintiff and proforma defendants No. 3 and 4, who are real brothers were first cousins of defendants No. 1 and 2. It was claimed by the defendants that Jindu and Fagnu were occupancy tenants over 103-4-10 bighas of land i.e. the suit land and another piece of land measuring 51-6-11 situated in the same village. During the life time of Fagnu a family partition had taken place between him and Jindu. The land detailed 4 in the plaint measuring 51-17-19 bighas (hereinafter referred to as land “A”) had fallen to the share of Fagnu and the remaining land measuring 51-6-11 bighas (hereinafter referred to as land “B”) had fallen to the share of Jindu. According to the defendants this family partition took place about 45 years back and thereafter the parties were in possession of their respective shares. According to the defendants in the revenue record also the possession was recorded separately but by mistake the word “Hissedar” was entered. It was further averred that the order dated 15.5.1990 passed by the Collector was correct. In the alternative, it was prayed that if the private partition was not proved, in that eventuality, the entire land i.e. “A” and “B” should be partitioned together. According to the defendants, Jindu purchased the ownership rights from some of the land owners. The case of the defendants is that at the most Jindu could step into the shoes of the vendors whereas the occupancy rights of Fagnu were unaffected by the sale made in favour of Jindu. 4. On the pleadings of the parties following issues were framed:- 1. Whether the plaintiff and defendants No. 3 and 4 are owners in possession of the land in suit to the extent of half share, as alleged? OPP. 5 2. Whether the impugned order of Sub Divisional Collector, Jogindernagar dated 15.5.1990 is wrong, null and void, as alleged? OPP. 3. Whether the land in suit is liable to be partitioned? OPD. 4. Whether the plaintiff has no enforceable cause of action to file the suit? OPD. 5. Whether the suit is barred by limitation? OPD. 6. Whether the suit is not maintainable as alleged in preliminary objection No. 3 & 4 of the written statement? OPD. 7. Whether the land in suit has fallen to the share of the defendant No. 1 and 2 in private partition, as alleged? OPD. 7(a) Whether the land measuring 103-4-10 bighas as detailed in para No.1 of the written statement was in the joint tenancy of late Sh. Fagnu and Jindu? OPD. 7(b) If issue No. 7 is not proved whether defendants No. 1 and 2 are having ½ share in the land measuring 56-6-11 bighas? 8. Relief. 5. The learned trial Court decided issue No.1 partly in favour of the plaintiff and defendants No. 3 and 4 and it was found that they were recorded as owners but were not in possession of the suit land. Issue No.2 was decided against the plaintiff. Issue No.5 against the defendant and issues No. 3, 4, 6, 7, 7(a) and 7(b) in favour of the defendants and therefore, the suit was dismissed. Appeal was filed by the legal heirs of the plaintiff which appeal has been allowed by the learned lower Appellate Court. The learned lower Appellate 6 Court came to the conclusion that since the mutation of ownership sanctioned in favour of Jindu had not been assailed, the defendants could not challenge the sale in his favour. He further went on to hold that since the defendants had not set up a case that they had not surrendered their occupancy rights, without getting the mutation order set-aside, it cannot be said that the subsequent entries in the record of the rights describing Jindu as exclusive owner of the property are null and void. Hence, the present appeal. 6. This appeal was admitted on the following questions of law:- 1) Whether the learned District Judge has misunderstood and misapplied the provisions of Order 8 Rule 6-A of the Code of Civil Procedure for holding that the defence in the Written statement cannot be countenanced, as the application for amendment of the written statement for treating such defence as counter claim was rejected by the trial Court? Are not such findings of the learned District Jude illegal, erroneous and perverse in view of the fact that on the initial written statement the defendants-appellants have affixed court fees for the reliefs claimed on the basis of the pleadings mentioned therein? 2) Whether the learned District Judge has wrongly rejected the plea of the defendants- appellants about private partition having been affected between the predecessors-in-interest of both the parties with respect to the occupancy of land measuring 103-4 Bighas? When the revenue 7 entries evidenced the factum of separate possession of the parties recorded on two different parcels of land falling to the share of each brother out of the joint holdings, was not it sufficient stand to infer the factum of private partition having been affected and acted upon? Are not such findings against the provisions of contained in Punjab Revenue Act and Himachal Pradesh Revenue Act? 5) Whether the learned District Judge has wrongly applied law to come to the conclusion that since the defendant-appellants or their predecessor did not assail the mutation proceedings and merely the exclusive possession of the defendants-appellants will not lead to the conclusion of private partition? 7. I have heard Shri Bhupender Gupta, learned senior counsel for the appellants and Shri B.K.Malhotra, learned counsel for respondents No. 1 to 8. I have also gone through all the documents on record. 8. The main question which arises for decision is whether the plaintiff is entitled to any share in land “A”. The case of the defendants is that both the lands “A & B” were jointly held by the predecessors-in-interest and in mutual partition Jindu took land “B” whereas Fagnu took land “A”. Therefore, the plaintiff and defendants No. 3 and 4 have no right left in land “A” after the partition took place. 8 9. The first question to be decided is whether any partition took place between Jindu and Fagnu. As far as the oral evidence is concerned, PW-1 Puran Chand plaintiff has denied that any family partition took place and according to him land “A” is still jointly owned by all of them though he admits that families are living separately for the last about 25 years. He denied the suggestion put to him that the defendants are in joint possession of land “B”. According to him land “B” was purchased by his father from the original land owners and therefore, became the exclusive land of Jindu. On the other hand Besar appeared as DW-1. According to him, the entire land “A & B” was jointly held by Fagnu and Jindu as tenants under the original owners. There was a partition between Fagnu and Jindu and in this family partition land “A” fell to the share of Fagnu and land “B” fell to the share of Jindu. According to him he and his brother, the contesting defendants, were in possession of land “A” and the plaintiffs were not in possession of the same nor they had any right, title or interest over the same. He admits that he had heard about the family partition by his elders but had no personal knowledge about the same. 10. DW-2 supported the case of the defendants but admits that no partition took place in his presence and 9 he had only heard that such partition had taken place. That brings us to the documentary evidence. Copy of mutation No. 59 wherein it is recorded that vide order No. 94 the tenants have been granted the proprietary rights in terms of Section 4 of the H.P. Tenancy and Land Reforms Act, 1972. Vide this mutation the land in question has been entered in the name of Jindu ½ share and defendants Setu and Besar ½ share. This mutation relates to land “A” and clearly shows that Jindu was entered as owner of ½ share vide mutation dated 13.5.1975. In fact, the challan whereby compensation has been paid to the owners to the extent of Rs.681.50 has also been deposited in the name of Jindu and others. In Ext.P-1, jamabandi for the year 1986-87, the land is shown in the ownership of both the plaintiff and the defendants though in the column of possession the defendants No. 1 and 2 are shown in possession as co-owners. Ext.P-2 is the order of the Sub Divisional Collector referred to above. 11. Even in the documents relied upon by defendants No. 1 and 2, i.e. Misal Haqiat for the year 1960-61 Ext.DA, Jamabandi for the year 1966-67 Ext.DB, Jamabandi for the year 1971-72 Ext.DC, Jamabandi for the year 1976-77 Ext.DD, Jamabandi for the year 1981- 82 Ext.DE and Jamabandi for the year 1986-87 Ext.DF, 10 Jindu is shown to be co-owner of property “A”. There is no explanation as to why the family partition was not given effect to if in fact the same had been entered into between the parties. The defendants want to derive benefit from the fact that areas “A and B” are almost equal in area and they are putting forth a case that whereas one brother got area “A” the other brother got area “B”. This argument, however, overlooks the fact that Jindu had purchased a substantial portion of the land in area “B” from the original owners. Thereafter, he was shown to be exclusive owner of land “B”. As far as land “B” is concerned, the Jamabandi for the year 1976-77 the documents Ext.PX-1 and Ext.PX clearly indicates that mutation of ownership was attested only in favour of Jindu. It is more than obvious that Jindu paid the sale consideration to the owners and purchased their shares. Once he had purchased their shares and his brother Fagnu did not object to the purchase and accepted the transfer of land “B” exclusive in the name of Jindu, the heirs of Fagnu cannot urge that this land was also jointly owned by their father. The learned lower Appellate Court was right in holding that since the mutation of ownership sanctioned in favour of Jindu had not been assailed by the defendants even in the present suit the contesting 11 defendants could not be heard to argue that the mutation is illegal or of no consequence. We cannot loose sight of the fact that Fagnu and Jindu were real brothers and Fagnu in his life time never claimed that he had not relinquished or surrender his tenancy rights in favour of his brother. When one brother had purchased the property it would not be unreasonable to expect that Fagnu had given up his occupancy right in favour of his brother. 12. It would not be out of place to mention that the mutation in question was attested a long time back and the defendants never took any action within the period of limitation. They, therefore, cannot be permitted to challenge the mutation of inheritance, whereby Jindu was declared owner of the property, at this belated stage. 13. In view of the above discussion, I find that defendants No. 1 and 2 have miserably failed to prove that any family partition took place and they have not challenged the ownership rights of Jindu within time and cannot now urge that land “B” is also joint land of the parties. Therefore, the entire case revolves around appreciation of evidence and I am of the considered opinion that none of the questions framed arise in the case and no question of law arises and the appeal has 12 to be decided on facts. There is no merit in the appeal, which is accordingly dismissed. 4th January, 2011 ( Deepak Gupta ) ™ Judge.