Case: Chhote Khan, Deceased, Represented By His Son, Harmat &amp; Others Vs. Mal Khan &amp; Others

2. Dalmir, Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals. Alif Khan was the son of Amir Khan. The present dispute is between the descendants of five branches of the family. The suit was brought by the descendants of Dalmir against the descendants of Dilmor, Chhinga Alif Khan and Sharif Khan. To this suit were also impleaded as defendants some of the descendants of Dalmir. The plaintiffs claimed a declaration that they along with defendants 17 to 19 are full owners in possession of 819 Bighas 19 Biswas land situate in village Manota Tehsil Ferozepore Jhirka in the Gurgaon District that defendants 1 to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 Bighas 19 Biswas possessed by them without payment of land revenue. The aforesaid defendants, it was alleged, were bound by the terms embodied in the agreement dated September 11, 1861, in the Wazib -ul- arz of that Settlement and repeated in subsequent Settlements which debarred them from any right to claim partition.Defendants 1 to 16, who are the contesting defendants, pleaded in defence that the plaintiffs along with the pro forma defendants 17 to 19 were recorded in Revenue papers as owner of 1/5th share in the land in dispute, while the contesting defendants were recorded as owners of the remaining 4/5 share and as such they were entitled to claim partition. The defendants denied that any agreement or condition in he Wazib -ul- arz restricting their right to partitions was binding after the expiry of the term of the Settlement and contended that it could not operate as a bar to their claim to partition. The Assistant Collector trying the suit as a Civil Court under Section 117 of the Punjab Land Revenue Act (Act XVII of 1887) decreed the claim. He held that the contesting defendants were entitled only to get produce of 140 Bighas and 19 Biswas of land in their possession without payment of land revenue and had no interest in the remaining land.This decree was reversed on appeal, the High Court holding that the defendants are entitled to 4/5th share as proprietors, that the original agreement repeated in subsequent settlements was binding on the parties so long as the Settlements were in force, that it cease to have any effect after the expiry of the Settlement of 1938-39 was not binding as they were not agreed to by the contesting defendants. The learned Judges held that the judgment (D,4) dated June 15, 1893 of the Chief Court of Punjab inter-parties, which held that the prohibition of partition contain in the Wazib -ul- arz did not survive the expiry of the period of the Settlement, was binding upon them. They took the view that the contesting defendants being proprietors the right of partition was inherent in their right of ownership.

Reasoning: 3. We have heard Dr. Tek Chand, learned counsel for the appellants, in support of the appeal at length but we are of opinion that there is no force in the appeal.This document shows that although the name of Dalmir is mentioned as being the sole grantee by virtue of the services rendered by him to the Nawab, his two brothers also were in joint possession with him. Not only this but Amir Khan and Sharif Khan, who are both collaterals, also had joint possession of the village. They are all described as proprietors and their names are recorded as joint owners. The authenticity of this document is beyond question. It cuts at the root of the theory of Dalmir being the sole owner. It is true that Dalmir was mentioned as the sole owner in D. 4 but the grant was treated by Dalmir himself as being the joint property of his two brothers and the two collaterals whether or not it was originally intended for the benefit of the family as understood in its widest sense.It appears that during the currency of this Settlement two suits for partition were filed in the Revenue Court but the partition was not allowed (P. 5).16. Coming to the Settlement of 1903-08 we find a Statement in clause 3 of the Wajib-ul-arz (D. 13) that the descendants of Dalmir alone could get the land partitioned in five equal shares but the descendants of the other four co-shares, who were cultivating and without payment of revenue, owing to non-rendition of account in respect of profit and loss of their respective shares, could not have the land partitioned.17. Lastly we come to the Jamabandi of 1937-38 (P. 1). This shows that all the five branches were entered as being in possession of equalare of opinion that this judgment which is inter-parties finally set at rest the controversy between them by declaring that the parties were joint owners holding equal shares and constitutes res judicata. The judgment is also in conformity with the true effect of the documentary evidence on the record. No doubt the name of Dalmir was entered in some documents as the sole owner but that entry by itself is not conclusive and must be read in conjunction with the other entries in the Settlement record. Dalmir may have been the original grantee but his own conduct shows that he did not regard himself as absolute owner to the exclusion of his own brothers. Indeed according to the entry he even treated his collaterals on an equal footing. His description as sole owner in the circumstances carries no value.Whatever may have been the position at the time of the original grant, the subsequent conduct of the parties unmistakably shows that all the five branches were treated as owners in equal shares. Dalmir as the lamberdar was made responsible for the payment of the entire land revenue. He was entitled to profits and was responsible for loss. The others were given less land and were exempted from payment of rent or revenue on account of relationship. This arrangement appears to have been fairly general in those days as appears from the report of Mr. (later Lord) Lawrence, Settlement Officer, referred to above. The arrangement was that a few owners shared the profit and loss of the land revenue assessment while the others were exempted. The Government was primarily interested in the payment of the revenue and they apparently found it more convenient to hold the head or the most influential members of the family as responsible for payment of the entire revenue leaving it to him to make such arrangement among his co-shares as he thought fit. In later Settlements the owners accepting responsibility for the payment of the land revenue did not find it profitable and the system gradually disappeared. Lord Lawrence remarks that at the third Settlement the number of villages which still continued the system was reduced to three and one of these was Manota in Ferozepore Tehsil (Page 179). This accounts for Dalmir being called the sole owner and being made responsible for payment of Governmentare satisfied that the materials on the record taken as a whole justify the view which has been taken by the High Court that the contesting defendants are joint owners and not mere cultivators who are not entitled to claim partition of the property. The judgment of the Chief Court also recognized the proprietary right of the defendants but qualified it by the declaration that so long as the Settlement was in force, they were not entitled to partition by reason of their agreement recorded in the Settlement papers. The Settlements of 1877 and1908-09 have ceased to operate and the entry in the current Settlement of 1933-1939 having been made under the orders of the Collector has no value when the contesting defendants did not agree to its being incorporated. The previous agreement was not one for perpetuity but for a limited period only and there is no reason in law why the prohibition against partition should be now enforced against the contesting defendants.We agree with the High Court in holding that partition is a right incident to the ownership of property and once the defendants are held as co-owners, their right to partition cannot beplea was raised in the plaint but evidently it was not pressed for no issue was framed, nor any finding recorded by the trial Court. This point is not taken even in the grounds of appeal to this Court. The plea has no substance and was rightly rejected by the High Court on the ground that possession was under an arrangement between the co-shares and no question of adverse possession could arise under the circumstances.