Duli Chand vs Jaswant Singh

Ashok Bhan, J.

This is a defendants'' second appeal challenging the order of the Court below vide which the suit of the plaintiffrespondent Jaswant Singh has been decreed for declaration to the effect that he is owner in joint possession of 1/4th share in land measuring 148 Kanals 12 Marlas situated within the revenue estate of village Manuwas, tehsil Nuh, district Gurgaon and he is further entitled to get his share partitioned being a cosharer.

The facts giving rise to the present appeal are that Jaswant Singh and Smt. Chameli filed the present suit against Duli Chand and three others for declaration to the effect that plaintiffs are in joint possession of 1/2 share of the suit land mentioned in para 1 of the plaint and thus entitled to get their share partitioned. The allegations made in the plaint are that the plaintiffs are joint owners in possession as cosharers of 1/2 share in the agricultural land measuring 148 Kanals 12 Marlas as described in para 1 of the plaint situated in village Manuwas, tehsil Nuh, district Gurgaon; that the land in question was Shamilat Patti Jatan Thulla Gulabi and the plaintiffs were in possession as cosharers of 1/2 share; that the plaintiffs sold land of their Malkana Kabja without their share in Thulla Gulabi to the defendants,'' that plaintiff No. 1. too sold his 1/4th share of the land in favour of Duli Chand, defendant No. 1 vide mutation No. 210 decided on 16.9.1960 while plaintiff No. 2 Smt. Chameli sold her 1/4th share to defendants Nos. 2 to 4 vide mutation No. 211 decided on 16.9.1960. It was alleged that both of them had got share in Shamilat Thulla Gulabi; that they were in joint possession of their share of the land in Shamilat Thulla Gulabi uptil now. Since the defendants disputed the same, the present suit was filed for partition of land.

The defendants contested the suit and pleaded that the suit was time barred; that the plaintiff had no locus standi to file the suit; that the defendants had become owners in possession by way of adverse possession; that the plaintiffs were estopped by their acts and conduct from filing the present suit and that the suit had not been properly valued for purposes of courtfee and jurisdiction. It was also alleged that the suit was bad for nonjoinder of necessary parties. On merits, it was alleged that it was incorrect that the plaintiffs had not sold their rights in Shamilat Thulla Gulabi along with the land in the year 1958 and that since 1958, the defendants were in possession of the suit land as owners and that is why the suit of the plaintiffs was liable to be dismissed. On the basis of the pleadings of the parties the following issues were framed :

(1) Whether the plaintiffs are owners in possession of the suit land ? OPP.

(2) Whether the plaintiffs sold their land of Thulla Gulabi without share in the said Shamilat Thulla ? OPP.

(3) Whether the suit is timebarred ? OPP.

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

(5) Whether the defendants have become owners of the suit land by adverse possession ? OPD.

(6) Whether the plaintiffs are estopped from filing the suit by their acts and conduct ? OPD.

(7) Whether the suit has not been properly valued for purpose of court fee and jurisdiction ? OPD.

(8) Whether the suit is bad for nonjoinder of necessary parties ? OPD.

(9) Relief.

Plaintiff No. 2 Smt. Chameli did not contest the suit and at a later stage appeared as DW 4 and made an admission that she had sold her share of the land including the rights in Shamilat Deh. Plaintiff No. 1 Jaswant Singh contested the suit and stepped into witness box and led his evidence. The trial Court under issue No. 1 held that Jaswant Singh is owner in joint possession of 1/4th share of the suit. land and has a right to get the same partitioned. Under issue No. 2 it was held that plaintiff Jaswant Singh did not sell his rights of Thulla Gulab Shamilat land. And other issues were not seriously contested and were decided in favour of the plaintiffs. On the basis of the finding recorded above the suit of the plaintiff Jaswant Singh was decreed as prayed for and that of plaintiff No. 2 Smt. Chameli was dismissed due to her own admission. Against this judgment an appeal was carried before the first Apellate Court. The first Appellate Court also agreed with all the findings recorded by the trial Court and dismissed the appeal and that is why against the judgment and decree passed by the Courts below the present second appeal has been filed.

The only point which was contested before the lower appellate Court as well as this Court is under issue Nos.. 1 and 2 and the main point involved in the appeal is as to whether the land in question was sold along with Shamilat rights or without such rights ? Plaintiff Jaswant Singh had appeared in witness box and stated that he did not sell the Shamilat Deh along with land sold by him and whereas defendant No. 2 appeared as DW 4 and deposed that she had sold the land along with her rights in the Shamilat land. Under the circumstances, much reliance cannot be placed upon the oral testimony of the witnesses and the decision of the case would rest on the documentary evidence consisting of certified copies of the sale deed DW 3/C and mutation Exhibit P2.

Learned counsel appearing for the appellants has contended that a perusal of Exhibit DW 3/C, certified copy of the saledeed shows that the father had sold the land mentioned therein along with Shamilat rights and he has laid stress on the words "Mai Jumla Haqooq Mutalka Ash and Kabja Arazi Mubaiya Se Apna Utha Ker Mushtri Ka Kabja Malkana Kara Diya Hai or Usko Misal Khud Kamil Mallik Wa Kabij Arazi Moobaiya Ka Bana Diya Hai". The learned counsel pointed out that the writing of the words to the effect that the land was sold "Mai Jumla Haqooq Mutalka Ash'' means that the land was sold along with all rights including rights of Shamilat Patti He has mainly relied upon a Division Bench judgment of this Court reported in Bhim Singh v. Chandgi Ram, 1952 PLR 483 where their Lordships have interpreted the words "Mai Jumla Haq Haqooq". This authority had been cited before the lower appellate Court also and the lower appellate Court discussed the same at length in its judgment. I agree with the interpretation put by the lower appellate Court on this judgment. The words in Bhim Singh''s case (supra) were "Mai Jumla Haq Haqooq or Jis Tarah Ke Main Malik aur Qabiz Arazi Mazkur Par the ab isi Tarah se Jug Lal Maz Kur rahega". The words in the case would mean that the land was sold with appurtenant rights thereto and appurtenant rights would include rights of Shamilat etc. essential for the land. In Bhim Singh''s case (supra) their Lordships interpreted the words "Mai Jumla Haq Haqooq Or Jis Tarah Ke Mai Malik aur Qabiz Arazi Mazkur par the ab isi Tarah se Jug Lal Mazkur rahega, "appearing in the gift deed and held that in the said gift deed land along with Shamilat rights which were appurtenant to the land were also included. In the present case the words are ''Mai Jumla Haqooq Mutalka Ash''. The word ''Haq'' missing and in the end ''Mutalka Ash'' added, meaning thereby that all rights in connection with the land have been sold but this did not include the right in the Shamilat land. Moreover, in the present case, the subsequent conduct of the parties also shows that the land was sold without any rights in the Shamilat Patti. Exhibit P4 is a certified copy of the mutation entered on the basis of the saledeed which shows that the mutation was attested in favour of the vendees without any rights in the Shamilat. This mutation was decided on 2871960 i.e. almost two years after the saledeed and in presence of the vendees who did not object to the same. The present suit had been filed in the year 1974. Had the contention raised by the appellants in the suit to the effect that the land was sold with appurtenant rights in Shamilat been true then he would have raised objection at the time of attestation of the said mutation in favour of the plaintiff or within reasonable time thereafter. He did not raise this objection even at thetime of attestation of subsequent Jamabandis which only shows that he had not purchased the land along with the rights in the Shamilat Deh. Even in Bhim Singhs case (supra) their Lordships held that conduct of the parties subsequent to the event can be taken into consideration while inferring the intention of the parties regarding the sale and the share in the Shamilat, if the same is not clear from the document itself. In this case the conduct of the parties is clear pointer to the fact that the share in the Shamilat was not sold along with the land. As mentioned above, the mutation was sanctioned in the year 1960 in which it was clearly mentioned that the land has been sold without Shamilat rights and the defendant appellants did not raise any objection to this at the time of attestation of the mutation or at the time or attestation of subsequent Jamabandis. I, therefore, hold that the findings of the Courts below on issue Nos. 1, 2 and 4 are correct and the same are affirmed. No other point has been urged before me. The appeal is dismissed with no order as to costs.