Hawa Singh and ors. vs Siri Chand and ors.

A.L. Bahri, J.—In this Regular Second Appeal filed by the plaintiffs the only question debated is regarding the status of the plaintiffs as cosharers in the land in dispute. Their suit was decreed by the trial Court holding them to be cosharers and thus entitled to preempt the sale. However, the lower appellate court allowed the appeal filed by the defendants holding that the plaintiffs were not the coshares in the suit land.

Agreement of sale by Smt. Mehlo defendant No. 1 in favour of other defendants was entered into on June 9, 1982 in respect of 42 kanals 14 Marlas of land. The sale took place on June 10, 1982. Earlier the suit land and other parcel of land belonged to three sisters, namely, Smt. Mehlo, Smt. Sarti and Smt. Darshna onethird share each. On August 26, 1975 Smt. Mehlo filed an application for partition before the Revenue Officer. On October 6, 1976, Assistant Collector, holding Smt. Mehlo to be owner of 1/3rd share directed partition. Vide order dated October 14, 1976 the Assistant Collector directed the Patwari to prepare Naqsha Jeem. Such a plan was prepared which is exhibit D. 8. In the meantime Smt. Mehlo filed objection claiming a specific Khasra Number to be allotted to her share. Since the Assistant Collector had not agreed to the same, she filed an appeal before the Collector. During the pendency of the appeal, mutation was sanctioned in accordance with the mode of partition finalised on February 23, 1977. Copy of the mutation is Exhibit D.6. The Collector disposed on the appeal as aforesaid on August 24, 1977 and remanded the case. Exhibit PX is the copy of the order. Subsequently, the aforesaid objection was not pursued and for nonappearance of Smt. Mehlo the same was dismissed. The parties remained in their separate jamabandi for 197778. Smt. Darshna sold her share of the land in favour of the plaintiffs on June 15, 1976. Copy of the sale deed is Exhibit P3 and Smt. Sarti sold her share of the property to the plaintiffs vide sale deed dated December 28, 1975. Exhibit P2 is the copy of the sale deed. It is in view of the evidence aforesaid it has to be decided as to whether the plaintiffs were coshares of the suit land which was sold by Smt. mehlo in favour of the defendants on June 10, 1982. If the plaintiffs are held to be cosharers, they will be entitled to preempt the sale otherwise they are to fail.

Contention of Shri C.B. Goel, Advocate appearing on behalf of the plaintiffappellants, is that since the sale deed in favour of the defendants itself recited sale of share of the land, the plaintiffs having purchased the other shares of the two sisters would be cosharers and entitled to preempt the sale. It is further argued that merely by sanctioning of the mutation it cannot be said that there was completed partition as the order on the basis of which mutation was sanctioned was set aside on appeal by the Collector and the case stood remanded. Even if the patwari had prepared the plan Naqsha Jeem and the Assistant Collector had accepted it, all these proceedings became nonest on acceptance of the appeal when the case was remanded. In support of these contentions reference has been made to the decisions of this Court in Amar Nath v. Kishan Kaur and another, 1981(2) RLR 339. That was a case under the East Punjab Urban Rent Restriction Act. It was held that the appellate Authority was not competent to remand the case. After the order of remand the Rent Controller got an inspection note prepared. It was held that since the order of remand was illegal, subsequent proceedings become nonest. The ratio of the aforesaid decision cannot be applied to the facts of the case in hand. Exhibit PX is the order passed by the Collector on August 14, 1977. It shows that Smt. Mehlo had filed an appeal against the order of the Assistant Collector dated December 7, 1976 and the direction was given to the Assistant Collector to decide afresh the objection of Smt. Mehlo after hearing both the parties. Exhibit P12 is the copy of the order dated October 7, 1976, passed by Assistant Collector II Grade. This shows that the objection of Smt. Mehlo was dismissed and the Patwari was directed to prepare Naqsha Jeem. The objection of Smt. Mehlo was that instead of Killa No. 214/4 she should be given Killa No. 201/23. Subsequently, when the matter came before the Assistant Collector on October 18, 1976 order Exhibit P11 was passed filing the proceedings on account of nonappearance of the petitioner although respondent had put in appearance. What was before the Assistant Collector on that day was only the objection of Smt. Mehlo as to whether she should be given Killa No. 201 instead of 214. That request stood not acceded to when the aforesaid order Exhibit P11 was passed. It cannot be said, as is argued by counsel for the appellants, that the application by Smt. Mehlo for partition and subsequent proceedings taken thereon stood set aside or quashed when order of remand Ex. PX was passed or when order of dismissal Exhibit P11 was passed. It is significant to note that except Smt. Mehlo no other party had questioned in appeal the order of the Assistant Collector dated order 14, 1976 vide which the Assistant Collector had accepted naqsha Jeem made for partition and directed Smt. Mehlo to submit the stamp paper worth Rs. 3/. Those orders remained infact and subsequently implemented in the revenue records when mutation was sanctioned which was further implemented in the jamabandi of 197778.

Shri Goel referred to the decision of Himachal Pradesh High Court in Shri Khem Dutt and others v. Palkia and another, 1984 RRR 535 (H.P.) : 1982 PLJ 391, on the subject as to when partition would become complete under the provisions of the Land Revenue Act. The instrument of partition required the date to be fixed from which date the partition is to take effect. Mere possession of the cosharers in separate portions ofjoint estate wouldnotextinguish their status as cosharers in the absence of instrument of partition. If there was no effective partition the coshares would continue to hold such status. In that case a stay order had been granted regarding preparing of the instrument of partition. In spite of that instrument of partition was prepared which was subsequently revoked on account of the stay order. It was held that partition was not complete. Again ratio of the aforesaid decision will not be attracted to the facts of the case in hand. As already stated above, order of the Assistant Collector accepting the instrument of partition was not challenged which order is Exhibit D dated October 14, 1976. On the basis of this order mutation was sanctioned on February 23, 1977, copy Exhibit D6. This mutation further shows that three khatas were made Khata No. 389, 390 and 391. The land comprising in Khata No. 389 was shown exclusively in the name of Smt. Mehlo the land comprising khata No. 390 was shown in the names of Hawa Singh and others and the land of Khata No. 391 was shown in the name of Smt. Mehlo 1/3rd and Mian Singh etc. 2/3rd. The parties entered into possession of their separate portions allotted in respect of which this mutation was sanctioned and they continued to remain in possession which is further shown by the jamabandi for the year 197778, Exhibit P5 which is also Exhibit D5. Exhibit P7 is the jamabandi for the year 197778 of khata No. 389 which is exclusively shown under the ownership of Smt. Mehlo. This comprises the suit land. The plaintiffs have not produced jamabandi of 197778 in respect of other two khatas of land namely 390 and 391. It was land of Khata No. 391 that had fallen to the share of the plaintiffs exclusively. Since the sale in dispute was made in 1982, the plaintiffs were required to produce the latest jamabandi of the land to show that they were cosharers in the suit land. They have not produced the jamabandi of their share of land as stated above. What they are banking upon is the old jamabandi of 197273 wherein they were shown as cosharers but that will not prove their case.

Another argument in alternative was put forth by the counsel for the respondent. It was argued that even if the order of effecting partition stood set aside on remand of the case, the parties effected the partition and accepted the same when mutation aforesaid was sanctioned and subsequently they continued for years together in possession of their respective land as mentioned in the mutation which was implemented in the jamabandi. There is force in this contention also. It is not necessary that in all cases there should be partition proceedings before the Revenue Authorities by making an application. The law does not prohibit private partition between the cosharers which could be given effect to in the revenue records. When the mutation aforesaid was sanctioned both the parties were present and accepted the same and subsequently for years together they remained in their respective block of land allotted to them. In such circumstances partition was complete. As already stated above, the land in dispute is only of Khewat No. 389 and the defendants are not shown to be cosharers in the aforesaid Khewat. They cannot claim to be as such. In this respect reference may be made to the decision of the Full Bench in Lachhman Singh v. Pritam Chand, 1970 PLR 341. It was held that the purchasers of a share of specified Killa Numbers in specified Rectangles will not succeed in obtaining a decree by way of preemption when a specified share in another rectangle is sold subsequently in which rectangle the original purchaser has no right. Subsequently again the matter was considered by another Full Bench in Bhartu v. Ram Sarup, 1981 PLJ 204, but that was a case of sale from the same Khata. It was held that it was preemptible on the ground of plaintiffs being cosharers. Where the sale is of a share out of joint land made by one or some of the cosharers, the other cosharers are entitled to preempt the same under Section 15(1)(b) of the Punjab Preemption Act as applicable in Haryana. The same provision would be applicable even if the sale was made by a female. Section 15(2) of the Act was held to be ultra vires by the Supreme Court in Atam Parkash v. State of Haryana and others, 1986 PLJ 191 : 1987 RRR 116. Subsequently in respect of sale made by female the matter was considered by the Supreme Court in Nand Kishore and another v. Avtar Singh and others, 1988(1) Recent Revenue Reports 574 : 1988 PLJ 47, wherein it was held that even in such a case the sale is preemptible if the plaintiff is found to be a cosharer. Whether the sale is made by a female or male a cosharer is entitled to preempt the sale under Section 15(1)(b) as referred to above. This was also held in Mange Ram v. Tulsi Ram and others, 1989(2) Recent Revenue Reports 176 : 1989 PLJ 207. The aforesaid position of law being not in dispute, the only question for consideration was as to whether the plaintiffs were cosharers in the suit land or not. As discussed above, they were not cosharers in the Khata which comprises the suit land and thus they cannot be held to be entitled to preempt the sale.

An application for amendment of the written statement was filed by the defendants to the effect that they were bona fide purchasers and the plaintiffs were estopped from claiming their status as cosharers is dismissed, as on merits it has been held that the plaintiffs had failed to establish their status as cosharers. Likewise there is no force in the crossobjections filed by the respondents which are dismissed.

For the reasons recorded above, this appeal fails and is dismissed leaving the parties to bear their own costs.