Chander Sekhar etc. vs Des Raj etc.

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the first appellate Court, Jind, who on appeal affirmed that of the trial Judge at the instance of the unsuccessful Plaintiffs.

The appeal initially came up for hearing before P.C. Jain J. (as he then was) who dismissed the same on September 14, 1982. The Appellants went up in appeal before the apex Court and it was urged that some of the points which were agitated before the High Court were not dealt with by the learned Judge. The Appellants were permitted to file the review petition, which was filed on October 10, 1988 and by an order dated November 24, 1988, the review petition was allowed by a Division Bench of this Court and the appeal has been listed for hearing before me.

The parties have been referred to in the body of the judgment as they were described in the plaint.

The Plaintiffs came to the Court for a declaration to the effect that they were the exclusive owners of the agricultural land measuring 61 kanals 10 marlas comprised in Khasra Nos. 1372 and 1373 situate in the revenue estate of Narwana and the alienations made through sale-deeds dated August 2, 1966, August 10, 1966, August 12, 1966 by Defendants 1 to 3 in favour of Soda gar by Defendant No. 5; in favour of Sodagar; by Puran Defendant, in favour of Defendants 6 and 7, and Surjit Kaur widow of Sodagar in favour of Defendants 17 and 18, respectively, were void and illegal qua right of the Plaintiffs. As a consequential relief, injunction was sought restraining the Defendants from interfering in the possession of the Plaintiffs.

Bansi Lal was the common ancestor of the parties. He had two sons, namely Brahma Nand and Rama Nand. Complete genealogy of the parties as set out in the plaint is as under:

Defendants 10, 10-A to 10F, 11, 12, 13, 14, 15, 16 and 26 to 28 were from the branch of Brahma Nand while Defendant No. 1 to 4 and 8 and 9 were from the branch of Rama Nand. These two brothers Kama Nand and Brahama Nand owned 5(Sic)0 Bighae of land which was partitioned by a family partition on Phagun Sudhi 3 Smat 1980 BK. A writing was executed and was signed by Brahma Nand, Nihalu son of Rama Nand, Parsanni, widow of Gangaman son of Rama Nand. In accordance with this partition/family settlement, the parties remained in possession of their respective shares. They improved the land. The land measuring 37 bighas Kham comprised in Khasra Nos. 1078 and 1083 in the revenue estate of Narwana situate behind the tehsil and police station, Narwana known as Tibbi came to the share of Plaintiffs 1 and 2 and they have been in possession thereof ever since partition in 1980 Bk. During consolidation, Field Nos. 1372, 1373 were carved out and allotted to the Plaintiffs in lieu of Field Nos. 1078 and 1083. The land was initially barani and was not cultivated. The sales effected by the co sharers were invalid because they had no right to sell it.

Joint written statement was filed by Des Raj, Ram Kumar, Krishan Kumar and Parsanni. The correctness of the pedigree table as given in the plaint was not disputed. However, it was denied that the disputed land was ever partitioned between the co-sharers.

From the pleadings of the parties, following issues were framed:

Whether the Plaintiffs are exclusive owners of the land in suit due to family partition? OPP

Whether the plaint does not contain unauthorise amendments and if so to what effect? OPP

Whether the sales in dispute are null and void? OPP

Whether the Plaintiffs are entitled for the injunction prayed for? OPP

Whether the plaint is properly valued for the purposes of court fee and jurisdiction? OPP

Relief

Under issue No. 1, it was found that the Plaintiffs were not the exclusive owners of the land in suit, issues Nos. 3 and 4 were found against the Plaintiffs by the trial Judge, in the first appeal, the findings recorded under issues Nos. 1, 3 and 4 were assailed. The learned lower appellate Court on appraisal of the evidence held that the document Exhibit P. 5 was not a family settlement hut was a partition deed. It was not a memorandum of a past transaction, but partition in present was effected under this document, and thus was inadmissible in evidence for want of registration although it could be used to show the nature of possession of the parties It was further held that the revenue record did not show that the Plaintiffs were in exclusive possession of the land. The findings arrived at by the learned trail Judge under issues 1, 3 and 4 were affirmed. Resultantly the appeal was dismissed. The unsuccessful Plaintiffs have come up in second appeal.

The learned Counsel for the Appellants submitted that Exhibit P. 5 was a family arrangement bilding on the parties and they could not be permitted to resile from the arrangement after having taken advantage under it. The submission of the learned Counsel has to be examined in the light of the evidence brought on record. Assuming that the writing exhibit P 5 is a family arrangement and not a partition and the possession of the parties is reflected in the revenue records according to this document, it does not advance the case of the Plaintiffs. In the record of rights Exhibits P. 11, P. 21, P. 22, P. 23 and P. 24 both the brothers, namely, Brahma Nand and Rama Nand or their heirs are recorded as owners although in the column of cultivation only Brahma Nand is recorded as in cultivating possession but as a co sharer. Had the partition been effected as alleged then these two field numbers, which are in dispute, would have been shown in the exclusive ownership of Brahma Nand or his progeny Possession of a co-sharer will be deemed to be for and on behalf of other co-sharers. Possession of one co-sharer will not amount to ouster or denunciation of the title of the other co-sharers. The entries in the record of rights do not vouchsafe the assertion of the learned Counsel. The family arrangement was never given effect to in the record of tights. Agricultural land can be partitioned either by registered document which is given effect to the revenue records on getting mutation entered and khata separate, or by getting it implemented by moving the revenue authorities for recognising the family settlement and to give effect to the same in accordance with the provisions of Sections 11 to 121 of the Punjab Land Revenue Act (for short "the Act") Section 123 of the Act provides that where a family partition 1 as been made, any of the parties to the partition can move the revenue officer for affirming the partition. The revenue officer, on a motion so made to him by any of the parties, shall proceed under Sections 119 to 122 of the Act. It the private partition is accepted by a revenue authority, only thereafter the khatas are separated and instead of showing as joint owners, they are shown as exclusive owners in different Khatas with different khasra numbers, in the present case, the revenue record only indicates that one brother is in possession of some khasra number as a co-sharer. From this, an inference of partition cannot be deduced. It may be a hard case for the Plaintiffs that they have been in possession of the land in dispute for long, but it cannot make them exclusive owners of the land in dispute. They will continue to be joint owners till the land is partitioned in accordance with the provisions of the Punjab Land Revenue Act as stated supra.

The learned first Appellate Court referred to the document (Ex. P. 5) and correctly came to the conclusion that it did not recite a past transaction but the partition was effected in present under this document. He further found that Parsanni widow of Gangaman, was entitled to 1/4th share in the property. She was not given any share or any specific share of any land under this document. Her attestation will not amount to surrendering of her right in the property. Since no share was given to her under this document, it can not be acted upon as a family arrangement and it could only be treated as partition. I agree with the conclusions arrived at by the learned Judge. I have gone through the document (Ex. P. 5) It does not evidence any past transaction. It evidences partition which was effected on the day on which the deed was executed and this required compulsory registration and it cannot be looked into for want of stamp and registration. It could only be looked into to determine the nature of the possession of the parties, which as stated above, was only as a cosharer and not as an exclusive owner.

For the reasons recorded above, this appeal is dismissed. However, I leave the parties to bear their own costs.