Darbara Singh vs Gurdial Singh

R.K. Nehru, J.—This Regular Second Appeal is directed against the judgment and decree dated December 1, 1992 passed by the learned Addl. District Judge, Sirsa affirming on appeal those of the trial Judge.

Facts :

Respondents, namely, Gurdial Singh and Nachhatar Singh sons of Kartar Singh (hereinafter referred to as the plaintiffs) sought for possession by pre emption of the suit land being cosharers, alleging that Sucha Singh son of Jiwan Singh vendor sold land measuring 8 Kanals being 160/4393 share of the total land measuring 219 Kanals 13 Marlas comprised in Khewat/Khatoni Nos. 181/298 in favour of Dalbara Singh and Sardar Singh vendeeapellatns (hereinafter the vendees) vide sale deed dated December 19, 1988 for a sum of Rs. 15,000/ whereas in the sale deed the sale consideration has been shown as Rs. 20,000/. The plaintiffs were the cosharers in the Khewat Nos 181/298 and as such had a preferential right to purchase the suit land. Since the same was not made, they had to enforce their superior right of preemption through the suit. The claim of the plaintiffs was denied by the vendees.

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

(1) Whether the plaintiffs have a superior right to preempt the sail in question? OPP.

(2) Whether the sale consideration was bona finely fixed and actually paid as per the recitals in the sale deed ? OPD.

(3) If issue No. 2 is not proved, then what was the market value of the suit land at the time of sale ? OPP Parties.

(4) Whether the plaintiffs have no locus standi to file the suit ? OPD.

(5) Whether the plaintiffs have no cause of action to bring this suit ? OPD.

(6) Whether the suit in the present form is not maintainable ? OPD.

(7) Whether this court has got no jurisdiction to try this suit ? OPD.

(8) Whether the defendants have incurred stamps and registration charges and other expenses? If so, how much ? OPD.

(9) Relief.

Under issue No. 1 it was held that the plaintiffs had a superior right to preempt the sale. Under issue No. 2 it was held that the transaction of sale took place for a consideration of Rs. 20,000/ as per recital in the sale deed. Issue No. 3 became redundant in view of finding under issue No. 2 Issues No. 4, 5, 6 and 7 were decided against the vendees and in favour of the plaintiffs. Under issue No. 8, it was hold that the vendees are entitled to Rs. 2,500/ as stamp charge and Rs. 26525 as registration charges from the vendors. On the ultimate analysis the suit was decreed.

Aggrieved against the judgment and decree of the trial Judge, the vendees challenged the same in first appeal. In the first appeal, the vendees assailed the findings of the trial Judge under issue No. 1 where in its was held that the plaintiffs had a superior right of preemption. The first Appellate Court on close analysis of the evidence and pleadings of the parties came to the conclusion that the plaintiffs had succeeded in establishing that they had a superior right to preemption. In coming to its conclusion, the first Appellate Court not only referred to the pleadings of the parties but also to the documentary evidence produced on record. It placed reliance on copy of mutation No. 3849 (Ex. P1) sanctioned on February 10, 1989. The mutation reveals that the plaintiffs purchased 140/10369 share out of joint land measuring 219 Kanals 13 Marlas comprised in Khewat No. 181 Khatoni Nos. 292 to 298 from Nazar Singh cosharer vide sale deed dated November 17, 1988. This mutation was incorporated in the record of right (Jamabandi) for the year 198788 (Ex P3). The first Appellate Court affirmed the finding of the trial Court under issue No. 1 holding that the plaintiffs had superior right of preemotion on the date of sale and suit and dismissed the appeal.

Aggrieved against the judgment and decree of the first Appellant Court, the vendees have come up in this Regular Second Appeal.

Learned counsel for the vendees submitted that the plaintiffs did not have a superior right of preemption on the date of sale and suit. To but tress it, he has moved an application under Order 41 Rule 27 C.P.C. for placing on record a copy of the sale deed and mutation No. 3335, that the plaintiffs were not cosharers in the suit property.

The vendees purchased 8 Kanals of land being 160/4393 share out of 219 Kanals 13 Marlas comprised in Khewat/Khatoni Nos. 181/298 vide sale deed (Ex. D1) dated December 19, 1988. The plaintiffs purchased 140/10369 share vide sale deed dated November 17, 1988 as is evidenced by mutation (Ex. P1) out of joint land measuring 219 Kanals 13 Marls comprised in Khewat No. 181 Khatoni Nos. 292 to 298. The suit land is admittedly a part of Khewat/Khatoni Nos. 181/298. The plaintiffs had purchased this land from one of the cosharers Nazar Singh prior to the sale in favour of the vendees. On the date of sale deed December 19, 1988, the plaintiffs were cosharers in the suit land and as such they had a preferential right to preempt the impugned sale. The vendees did not take any plea in the written statement that there was a private partition between cosharers in the joint land. If any of the cosharers in the joint land had sold specific killa number saying that he had got that land in a private partition, the admission made in the sale deed by him would not bind other cosharers. It will be selfserving statement by that cosharers. The alleged private partition has to be reflected in the revenue record. The partition can be effected in accordance with the provisions of Chapter IV of the Punjab Land Revenue Act, 1887. Section 123 of the Act deals with partition which has taken place without the intervention of a Revenue Officer and any party there to can apply to a Revenue Officer for an order affirming the partition. On receiving the application, the Revenue Officer shall inquire into the case and if he finds that the partition has in fact been made, he will make an order affirming it and proceed under Sections 119 to 122 or any of those sections, as circumstances may require. In the instant case, the alleged partition was not got implemented under Section 123 or any other provision dealing with the partition. Thus the plea of family partition cannot be taken note of. A reference can usefully be made to Pritam Singh v. Jaskaur Singh, 1992 PLJ 435 : 1993(1) RRR 390 (P&H) (DB) where it was held thus :

"9. The right to partition flows from the action of individual ownership of property. This right is one of the ordinary legal incidents of joint ownership. It is merely an arrangement whereby coowners having an undivided interest in one or many properties take by arrangement specific property in lieu of their shares in all. Section III of the Act provides that any of the joint owners or a person having a decree for partition or any written acknowledgement of the right is competent to apply for partition. On receiving the application the Revenue Assistant will summon all the interested parties share holders and legal heirs of the deceased share holder according to the procedure prescribed by Section 20 of the Act. After the summoning is complete any of the cosharer or cosharers who have been joined as respondent may file an application for separating his share in the joint holding. A co sharer can also file objections as mentioned in Section 112 of the Act. If the objection is regarding the question of title, the Revenue officer is at liberty to decide such question himself or direct the parties to get it decided from the Civil Court and stop the partition proceedings until such question of title is decided. If the Revenue Officer comes to the conclusion that there is no question of title involved, he will ask the Patwari to prepare a map of the land to be partitioned and share of the persons asking partition, popularly known as "Naksha Alf". This "Naksha Alf" contains the details of the possession of the cosharer asking for partition, excess or less area cultivated by that cosharer. On receipt of "Naksha Alf", the Revenue Officer shall ask the parties to file objections to it. After disposing of those objections he will frame the mode of partition. Any of the parties to the partition proceedings can challenge the made of partition decided by the Revenue Officer in appeal under Section 118(2). If the mode of partition is not challenged, it becomes finality. The Revenue Officer shall ask the Patwari to get the shares separated of the joint owners. According to the mode of partition, the patwari prepares the map, which is popularly called "Naksha Be". Any party aggrieved against "Naksha Be" can challenge it in appeal on the ground that it was not prepared according to the mode of partition. When "Naksha Be" becomes final or is agreed to by the parties, it is deemed to be sanctioned. The order of sanction is popularly known as "Naksha Jeem". The order is communicated to the Patwari, Kanungo and the parties. After the expiry of period of limitation, instrument of partition is drawn on the stamp paper by the Revenue Officer. It is to be specified therein as to from which harvest partition will be effective and till then the status is joint. The Revenue Officer puts the parties in possession according to the instrument of partition within three years from the date of its preparation. In the instant case, no instrument of partition was drawn and hence there was no severance of status."

Till the instrument of partition has been drawn, there is no severance of status of a cosharer. In the instant case, this is not the plea of the appellants that severance of status has take place.

The finding arrived at by the first Appellate Court on appreciation of evidence that the plaintiffs are cosharers on the suit land is essentially a finding of fact based on evidence brought on record. A concurrent conclusion is not possible to be interfered with and it is not even suggested that the finding arrived at by the first Appellate Court is vitiated in any manner warranting interference in appeal.

For the reasons stated above, the appeal fails and the same is dismissed. No order as to costs.

Civil Misc. No. 2094C of 1993 also stands dismissed.