Dhoom Singh and anr. vs Ram Kumar and anr.

J.V. Gupta, J.

This appeal is directed against the order of the Additional District Judge, Karnal, passed on a reference under Section 30 of the Land Acquisition Act (hereinafter called the Act).

Land measuring 31 Kanals 10 Marlas comprised in Khasra No. 200/ 6, 7, 8, 14, 15/1, situated in village Gooindhar district karnal, was acquired by the Haryana Government. The Land Acquisition Collector, Karnal, vide award dated February 28, 1985, awarded compensation at the rate of Rs. 30,000/ per acre for Chahi/Nehri land, Ram Kumar, respondent, claimed reference under Section 30 of the Act for apportionment of the compensation on the averments that he alongwith Roshan Lal and Des Raj sons of Ram Sarup and Bal Chand son of Telu Ram were recorded as the owners of the land, vide jamabandi for the year 198182; all the cosharers mutually and orally partitioned the land about six years ago and the land comprised in khewat No. 757 rectangle No. 186 khasra No. 23/1 min measuring 36 kanals 19 marlas and the land measuring 16 kanals comprised in khatauni No. 758, rectangle No. 200 and khasra Nos. 8 and 13; total measuring 52 kanals 19 marlas fell to his share; since the time of oral partition, he was in exclusive possession of the land as the owner; Roshan Lal and Des Raj sons of Ram Sarup owners of onethird share and Bal Chand son of Telu Ram owner of one third share of the total holding, sold their respective shares to Darshani and Dhoom Singh, respondents Nos. 2 and 3 (in the reference) vide registered sale deed dated August 12, 1981, were put in possession of the specific khasra nos. and they were in cultivating possession of the same; land measuring 31 kanals 10 marlas acquired by the Haryana Government was under his exclusive possession as the owner; respondents Nos. 2 and 3 were not entitled to the compensation and that he alone was entitled to the entire compensation as respondents Nos 2 and 3 were in possession of their respective pieces of land. Thus he challenged the award of the Collector whereby Ram Kumar respondent, was found entitled to compensation to the extent of onethird only and Darshani Devi and Dhoom Singh were held entitled to twothirds of the compensation amount. The reference was contested by the appellants Darshani and Dhoom Singh, appellants. They pleaded that they had purchased twothirds of the total holding belonging to Roshan Lal and Des Raj sons of Ram Sarup and Bal Chand son of Telu Ram vide registered sale deeds dated August 12, 1981. They further stated that they had purchased only the share of the vendors out of the total land measuring 158 kanals 13 marlas. Moreover, under section 30 of the Act, the Court is to see the title of the parties with respect to the land acquired and not the possession thereof. It was further prayed that the petition under section 30 of the Act be dismissed as they were also entitled to the compensation to the extent of their twothirds share. The Haryana Government did not file any reply. On the pleadings of the parties, the trial Court framed the following issues :

(1) Whether the petitioner alone is entitled to compensation ?

(2) Whether the petition is maintainable ?

(3) Relief.

The learned Additional District Judge found that the appellants Darshani and Dhoom Singh were not entitled to any compensation and only Ram Kumar was entitled to the entire compensation for the land acquired. According to the learned Additional District Judge, there was already an oral partition between the parties and, therefore, Ram Kumar was in exclusive possession as the owner of the land through partition. At the same time, the learned Additional District Judge also observed

"However, it is made clear that at the time of partition if it takes place through revenue Court, then the petitioner will not demand any share or claim any interest in the land in possession of respondents Nos. 2 and 3."

The learned counsel for the appellants submitted that vide sale deeds, Exhibits A.1 and A.2, what was sold to them was the share in the total land measuring 158 kanals 13 marlas, but as regards the possession under the sale deeds, the Khasra Nos. which were in possession of their vendors were given to them. Thus, argued the learned counsel, not only that, in the jamabandi for the year 197677 and subsequent thereto, the land is still shown to be in joint ownership of all the parties. According to the learned counsel, the land was never partitioned. There was no oral partition, as alleged by Ram Kumar, and if at all it was there, it was not given effect to in the revenue records. Thus, argued the learned counsel, the land being joint and having not been partitioned, the appellants being the coshares in the land were entitled to the amount of compensation to the extent of twothirds thereof. In support of the contention, the learned counsel relied upon the Full Bench judgment of this Court in Bhartu v. Ram Sarup, 1981 Punjab Law journal 204; Suba Singh v. Mohinder Singh, 1986 R.R.R. 472 : 1983 Punjab Law Journal 429 and Tek Singh v. Jaswant Singh, 1972 Current Law Journal 20.

On the other hand the learned counsel for the respondent Ram Kumar submitted that after the oral partition between the brothers in the year 1979, they were in possession of their respective shares and had been dealing with the land as the owners as such. Even Darshani appellant, after purchasing the land vide sale deeds Exhibit A.2, mortgaged the same with the persons for obtaining loans and described herself as the owner. According to the learned counsel, she never mortgaged any share of the total land; rather what was mortgaged was the specific khasra Nos. of which she was in possession under the sale deed. It was further contended that the appellants, by their acts and conduct were estopped from claiming that there was no partition between the parties. In support of the contention, the learned counsel relied upon Nirmal Singh v. Gurbachan Singh, 1987 Punjab Law Journal 239.

I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.

From the copies of the sale deeds, Exhibits A. 1 and A. 2, it is quite evidente that what was sold by the vendors was their share in the joint land and not any specific khasra Nos. as such. However, possession was given of specific khasra Nos. of which they were in possession as the owners.

In Bhartu''s case (supra), it was observed by the Full Bench that where a coowner is in possession of separate parcels under an arrangement consented by the other coowners, it is not open to anybody to disturb the arrangement without the consent of others except by filing a suit for partition. It was further held therein

"When a co sharer is in possession exclusively of some portion of the joint holding, he is in possession thereof as a cosharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned."

It is not disputed in the present case that in the revenue records, the land is shown to be in joint ownership of the parties and the socalled oral partition, if any, as alleged by Ram Kumar, respondent, was never given effect to in the revenue records.

It was held by this Court in Suba Singh''s case (supra)

"Even if the agricultural land is stated to be partitioned outside the court that partition becomes valid only if the same is brought to the notice of the revenue authorities and sanction is obtained and only thereafter the khatas are divided. Otherwise they continue to be joint owners in the same khata."

Section 123 of the Punjab land Revenue Act provides

"Affirmation of partition privately effected (1) In any case in which a partition has been made without the intervention of a Revenue officer, any party thereto may apply to a Revenue officer for an order affirming the partition.

(2) 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 may make an order affirming it and proceed under sections 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on application to himself under this Chapter."

Admittedly, no such application was made by Ram Kumar, respondent, on the basis of the alleged partition. The mere fact that the parties were in possession of specific khasra Nos will not mean that the land was still not joint. A cosharer shall continue to be a joint owner till the joint khata is divided by the cosharers either in partition outside the Court or through the revenue Court itself.

Nirmal Singh''s case (supra), relied upon by the learned counsel for the respondent has no applicability to the facts of the present case. Therein, the parties owned land in two villages. The plaintiff claimed partition of only that land which was in possession of the defendant. In the background of these fact, it was observed in paragraph 5 of the said judgment as follows :

"In the instant case the partition is clearly proved from document marked `A''. However, such unregistered document would not be admissible except to prove the factum of partition and nature of possession. Then we have the statements of D.W. 1 to D.W. 4 who have clearly proved that there was family partition between the plaintiffs and Sadhu Singh and the parties entered into separate possession of their respective portions in accordance with partition. Not only this, the plaintiff himself continued to accept the partition entered into in 1958 till 1973 when he exchanged a portion of land allotted to him with a third person. it appears that in the meantime the defendants had improved the land by setting up tubewell etc. and the plaintiff wanted to claim half share out of the land of village Hayat Nagar without making reference to the land which the parties jointly owned in other village i.e. Garden Colony Khojepur (Bhabra), major portion of which was allotted to him. Not to seek partition of land in that village would amount to a suit for partial partition. It is clear that the plaintiff wanted to overreach the Court so as to claim partition of the land in that village, which was exclusively allotted to the defendants in the family partition. Hence, it is clear that the plaintiff was estopped by his act and conduct in claiming the partition. In the aforesaid view the judgment and decree of the lower appellant Court cannot be sustained."

Moreover, whether a partition has taken place or not is question of fact. From the evidence on the record, it could not be held that the joint khata was ever partitioned between the parties. Thus, the approach of the learned Additional District Judge, was wholly wrong and misconceived. The mere fact that the appellants after the purchase of the land had mortgaged the same, did not change the joint nature of the land. As and when the partition takes place, the appellants will be liable to pay the mortgage money to their mortgagees. The factum of mortgage by them, by itself, does not prove that there was partition of the joint khata.

Apart from the above, there was no occasion for the learned Additional District Judge to observe that at the time of partition if it takes place through revenue Court, then the petitioner will not demand any share or claim any interest in the land in possession of respondents Nos. 2 and 3. In the present case, the learned Additional District Judge was dealing with the case on a reference under section 30 of the Act, and, therefore, there was no occasion for him to give such a direction. In this case, since there was no partition of the joint khata of the land measuring 158 kanals 13 marlas and the land acquired being the land out of the said khata, the appellants were entitled to the amount of compensation to the extent of their share i.e., two thirds.

Consequently, this appeal succeeds and is allowed with costs. The impugned order of the Additional District Judge is set aside. The amount of compensation awarded will be apportioned in the share of : onethird to Ram Kumar, respondent, and two thirds to the two appellants, Darshani Devi and Dhoom Singh.