Durga Singh and Another vs Nand Lal and Another

Kuldip Chand Sood, J.—This Second appeal is directed against the judgment and decree of the learned District Judge, Rampur Bushahr dated 9.6.2000.

It appears, property subject matter of dispute (khasra No. 419) along with other properties was owned and possessed by one Gopi Chand, who died in the year 1979. The properties were inherited by his four sons, namely Nand Lal (Plaintiff), Brij Lal, Durga Singh and Vidya Singh along with two sons of his pre-deceased brother Hira Lal, namely Shivdhian Singh and Ramayan Singh. The Plaintiff, thus have l/5th share in the afor esaid properties.

Case of Plaintiff Nand Lal was that in the partition which took place in the year 1990, Khasra No. 419 fell in his share. The mutation of this partition was attested on 30.9.1990. The possession of this particular land was given to him on 9.5.1991. Defendants, Durga Singh and his wife Uma Parifor cibly dispossessed the Plaintiff from a portion of khasra No. 419, described in the plaint as Khasra No. 419/1 measuring 0-01-92 hectares. The Plaintiff filed a suit for possession of this land on the basis of title. The suit was resisted by the Defendants on several grounds. It was denied that this particular land fell in the share of Plaintiff in partition. It was claimed that mutation of partition attested in favor of the Plaintiff on 30.9.1990 was wrong, illegal and void. It was also denied that they took for cible possession of khasra No. 419 in May, 1997, as claimed by the Plaintiff. Defendants also set up title by way of adverse possession. Learned trial Court found that this particular land was allotted to the Plaintiff in partition and the possession whereof was also delivered to the Plaintiff, as claimed by him.

Dissatisfied, the contesting Defendants carried an appeal befor e the learned District Judge, which was dismissed by the impugned judgment and decree dated 9.6.2000.

Still aggrieved, Defendants Durga Singh and Smt. Uma Pati are in second appeal.

I have heard Mr. G.D. Verma, learned Senior Advocate, assisted by Mr. Romesh Verma, learned Counsel for the Appellants and S/Sh. B.N. Gupta vice Mr. K.D. Sood, Advocate and Mr. Naresh K. Thakur, learned Counsel for Respondents 1 and 2, respectively.

The only contention, raising substantial question of law, of Mr. Verma is that partition application was allowed by the Assistant Collector 1st Grade on 29.12.1981. Defendants filed an appeal befor e the Collector which was decided on 19.10.1982. Plaintiff filed second appeal befor e the Commissioner, who decided this appeal on 8.9.1983 upholding partition of the land and, therefore e, the possession ought to have been claimed within three years of the date of dismissal of the appeal of the contesting Defendants, that is, 8.9.1983. In view of the provisions of Section 134 of the H.P. Land Revenue Act, the possession could not be claimed by the Plaintiff after three years of the order of the Commissioner.

It appears from the record that Assistant Collector 1st Grade passed an order of partition of joint holding of the parties which measured about 48-19 bighas of Chak Kothi, Tehsil Kalpa on 29.12.1981. No instrument of partition was drawn. The matter was finally settled by the orders of Commissioner on 8.9.1983. Instrument of partition, it appears, was drawn after that. Learned first appellate Court observed that partition by meets and bounds took place and instrument of partition was drawn by the Assistant Collector vide orders dated 31.3.1990. Mr. Verma, learned Senior Counsel for the Appellants contends that there is nothing on record to suggest that such an instrument was drawn on the date noticed by the learned first appellate court. From the reading of judgment of the first appellate Court, it appears that this fact was not disputed befor e him. The relevant part of the order/judgment reads:

At the time of arguments befor e me, the learned Counsel for the parties had to concede that Khasra No. 419 was subject matter of partition in the suit instituted by the Plaintiff. In compliance with order, dated 31.3.1990, passed by the A.C., First Gradefor partition of the joint and undivided property of the parties, khasra No. 419 had been allotted to the Plaintiff.

Learned first appellate Court further observed that mutation in terms of mutation No. 44 of partition was attested on 31.3.1990. Pursuant to the attestation of mutation, Plaintiff filed an application (Ex. PW-1/ A) on 28.5.1990 and it was on 9.5.1991 possession of this Khasra No. 419 was delivered to the Plaintiff. An entry to this effect was also made in the Daily Diary by the village Patwari.

It may be noticed that so far orders of learned Commissioner are concerned, it is apparent that the instrument of partition has not been drawn by that time. It was only after the passing of the final orders by the Commissioner that instrument of partition was drawn. Copy of mutation (Ex. PW-1/A) also refers to the orders of partition dated 31.3.1990, though such order is not on record. The proceedings befor e the Assistant Collector First Grade for delivery of possession shows that it was not the grievance of the Defendant befor e the Assistant Collector that Plaintiff did not claim possession within three years of the final decision of the appeal of the Plaintiff. The Defendants even did not make any grievance in the suit that the Plaintiff was delivered the possession of this land, pursuant to his application for delivery of possession, after three years. The contention raised by the Appellant has no merit.

Section 134 of H.P. Land Revenue Act reads:

Delivery of possession of property allotted on partition. An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof, as against the other parties to the proceedings and their legal representatives, and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last for egoing section, give effect to that instrument so as it concerns the applicant as if it were a decree from immovable property.

A perusal of this provision shows that a person shall be entitled to possession of land allotted to such person in the partition proceedings as against the other parties to the proceedings and their legal representatives. The Revenue Officer is obliged to deliver such possession on an application made by such person at any time within three years from the date recorded in the instrument of partition. u/s 133 of the Act, Instrument of partition is drawn when the partition is complete. It also mandates that date on which partition is to take effect shall be given. There is nothing on record to suggest that application claiming possession was not made by the Defendants within three years of the date mentioned in the instrument of partition. On the other hand, it was conceded befor e the learned first Appellate Court that the land was finally allotted to the Plaintiff only on 30.3.1990.

There is no for ce in the contention raised by the learned Counsel for the Appellant.

For the reasons recorded above, no question of law much less a substantial question of law arises in this appeal. The same is dismissed. No order as to costs.