Iqbal Singh vs Sadhu Singh

R.L. Anand, J.—Unsuccessful plaintiff has filed the present appeal and it has been directed against the judgment and decree dated 21.3.1984 passed by the Court of Additional District Judge, Amritsar, who affirmed the judgment and decree dated 14.4,1980 passed by the Court of Sub Judge 1st Class, Amritsar, who dismissed the suit of the plaintiff for declaration, as prayed for.

Brief facts of the case are that Iqbal Singh plaintiff filed a suit for declaration to the effect that he is the exclusive owner and in possession of the suit land measuring 15 Kanals 9 Marias situated in village Wadali Guru, and defendants Nos. 1 to 9 have no right, title or interest in the said land, and that defendant No. 1 is not a co-sharer in the land in dispute and had no right to seek partition along with other land comprised in Khewat No.94, and that the order of the Assistant Collector 1st Grade, Amritsar, dated 17.4.1969 sanctioning ex parte mode of partition, and the order dated 19.5.1970/ 16.12.1970 sanctioning partition at the back of the plaintiff were null and void, illegal and without jurisdiction. The plaintiff has also prayed for decree for permanent injunction praying that defendant No. 1 be restrained from dispossessing the plaintiff from the suit land. The case set up by the plaintiff was that defendants Nos. 1,2,3-A to 3-G were the owners of the land measuring 125 Kanals 9 Marias comprised in Khewat No.94 situated in village Wadali Guru and that the entire land of this Khewat does not answer to the description of the land as defined in the Punjab Land Revenue Act, and that defendants Nos.l to 9 by means of a sale deed 8.2.1937 sold the area in dispute i.e. 15 Kanals 9 Marias to Babu Banta Singh, who was the father of the plaintiff, and the vendors put him in actual possession of the land. After the death of Banta Singh the present plaintiff became the sole owner of the land in dispute. The land was jointly sold by the co-sharers and the plaintiff remained in possession of the same in his own right. Defendant No.l in collusion with defendants Nos.2, 3 A to 3G applied for partition of Khewat No.94 in the Court of Assistant Collector Grade-1, Amritsar in case No.38 dated 19.3.1968. The plaintiff as not served with any notice in those proceedings. The order of the Assistant Collector is without jurisdiction. The entire Khewat was a built up area being urban property and as such the land comprised in Khewat No.94 docs not fall within the definition of Land'' as defined in Punjab Land Revenue Act. The Assistant Collector illegally sanctioned the mode of partition on 17.4.196 and confirmed on 195. 1970/16. 12.1970. In that partition an area of 10 Kanals 6 Marias out of the land in dispute was withdrawn from the ownership of the plaintiff and was allotted to defendant No. 1 Sadhu Singh. The land was purchased by the father of the plaintiff on the basis of the representation and with the consent of all the vendors i.e. defendants No.s1 to 9. The father of the plaintiff became the absolute owner of the land measuring 15 Kanals 9. Marias and that the vendors had no right, title or interest in the said area. These defendants have been estopped by their act and conduct in denying the title of the father of the plaintiff, and after his death of the plaintiff, by stating that the Khewat was still joint. If defendants Nos.2,3 to 9 had sold more area than that of their share, it was done with the consent of defendant No. 1 and as such defendant No. 1 was not competent to apply for the partition proceedings. It was also pleaded by the plaintiff that his possession over the suit land was hostile, adverse, open, peaceful to the knowledge of the other co-sharers. The question of title could not be adjudicated by the Revenue Officer and as such the entire proceedings before the Assistant Collector 1st Grade were illegal and did not affect the rights of the plaintiff in the suit land. On the basis of the orders passed by the Revenue Officers in the partition proceedings, defendant No. 1 is trying to dispossess the plaintiff from the land in dispute, including the land measuring 10 Kanals 6 Marias, which was transferred in favour of defendant No. 1. Hence the suit.

The suit was contested by defendant Nos.l and 4. Defendant No. 1 filed a written statement and alleged that the suit of the plaintiff is barred by limitation; that the suit is not maintainable against a dead person; that the Civil Court has no jurisdiction to entertain the suit in view of Section 158 of the Punjab Land Revenue Act. On merits, it is the stand of defendant No. 1 that he, Banta Singh and Santa Singh were the owners of the land measuring 125 Kanals 9 Marias. It was a joint Khewat. They had also to her land. Defendant No. I right moved the application for the partition of the land. Santa Singh and Banta Singh sold the land to the father of the plaintiff more than their share. The plaintiff had no right to retain that part of the land. The sale in favour of the plaintiff''s father was subject to adjustment of the co-sharers at the time of the partition. Defendant No. 1 had every right to seek partition of the joint land, including the land in dispute and for this reason the Civil Court has no jurisdiction to reopen the partition proceedings conducted by the Revenue Officer. The plaintiff filed an application for setting aside the ex parte order of sanctioning the partition. That application was dismissed. The land comprised in Khewat No.94 was an agricultural land. Defendant No. 1 was allotted 10 Kanals 6 Marias of land out of the area sold by Santa Singh and Banta Singh in favour of the father of the plaintiff in the partition proceedings. The order of the Collector is valid and legal and is binding upon the plaintiff. No representation was made by the defendants, as alleged by the plaintiff. Any representation made by Banta Singh and Santa Singh is not binding upon defendant No. 1. The plaintiff has no become the owner of the suit land by adverse possession, being a co-sharer, who has no right to claim adverse possession against the other co-sharers. Defendant No. 1 is going to take the possession of the land allotted to him in the partition proceedings according to law and he cannot be restrained from doing so.

On the above pleadings of the parties, the learned trial Court framed the following issues;

Whether Santa Singh son of Bur Singh defendant No. 3 died before the filing of the suit? If so, its effect? OPD

Whether the suit is time barred? OPD

Whether this Court has no jurisdiction in view of Section 158 of the Land Reforms Act? OPD

Whether Banta Singh and Santa Singh sold the land to the father of the plaintiff more than of their share and as such the plaintiff has no right to retain that part of the land/OPD

Whether the orders of Asstt. Collector are void, illegal and without jurisdiction and the same are not binding on the plaintiff for the reasons contained in Para 0.3 of the plaint? OPP

Whether all the vendors i.e. defendant No. 1 to 9 made any representation to the father of the plaintiff that they were selling the land in accordance with their shares and in accordance with common arrangement amongst them? If so, its effect? OPP

Whether defendant No. 1 is liable to be restrained from taking possession of the land measuring 10 Kanals 6 Marias from the plaintiff? OPP

Whether the plaintiff is exclusive owner in possession of the land measuring 15 Kanals 9 Marias in suit? OPP

Relief.

On the conclusion of the trial, the suit of the plaintiff was dismissed on the main grounds that it is barred by limitation; that the Civil Court has no jurisdiction; that the order of the Collector was legal, that the plaintiff did not become the owner of the area sold to him by way of adverse possession. It was also held by the trial Court that the status of the plaintiff remained that of a co-sharer and he cannot validly plead his adverse possession qua defendant No. 1.

The plaintiff filed an appeal in the Court of Additional District Judge, Amritsar, who after relying on the case law reported as Chander Bhan v. Jai Lal and Others, 1964 PLR 850; Tek Singh v. Jaswant Singh and Others, 1971 P.L.J. 656; Bhartu v. Ram Sarup, 1981 P.L.J.204; and Daya Singh v. Ajaib Singh, 1979 P.L.J.369; dismissed the appeal and affirmed the findings of the trial Court. In this manner the present R.S. A by the unsuccessful plaintiff.

This appeal has been disposed of with the assistance rendered by Shri M.L. Sarin, Senior Advocate with Shri Rahul Rathore, advocate, appearing for the appellant, and Shri B.R. Mahajan, Advocate, appearing on behalf of the respondents, and after hearing the submissions of the learned counsel for the parties. I am of the considered opinion that this appeal is devoid of any merit.

Before me the findings of the Courts below on issues Nos.2, 3, 5 and 8 were only challenged and the first point which survives for determination is whether the suit, which was instituted on 10.6.1994 is within limitation or not. The challenge in the present suit has been given to the orders of the revenue authorities, which were passed on 17.4.1969, 19.5.1970 and 16.12.1970 and as per Article 58 of the Limitation Act, the period of limitation at the most is three years when the cause of action arose for the first time to the plaintiff. The present suit has been instituted in the year 1974. Thus prima facie the suit is barred by limitation. The learned counsel of the appellant, however, submitted that the cause of action arose to the plaintiff when he received a threat from the side of defendant No. 1 who was going to take the possession of the area allotted to him in the partition proceedings and this threat was given to the plaintiff only a few days earlier to the institution of the suit. Hence the suit has been filed within limitation. Mr. Sarin in the alternative submitted that the partition proceedings were ex parte. The plaintiff was not served with any notice by the Assistant Collector and, therefore, the three year''s period is to be counted when the plaintiff came to know of the partition proceedings. The submissions raised above by Shri M.L. Sarin are devoid of any merit because it is proved on the record that notice was given to the plaintiff, who was served in the partition proceedings before the revenue authorities. Once the plaintiff does not appear in the partition proceedings, he cannot be allowed to say that he did not know the nature of those proceedings. Rather it will be presumed that he had the full knowledge of the proceedings, so much so, the plaintiff filed an application for setting aside the ex parte order. The application was dismissed. In this case the cause of action arose to the plaintiff for the first time on 17.4.1969 or at the most on 16.12.1970. He did not file the suit within three years as required under Article 58 of the Limitation Act. Therefore, the suit was prima facie beyond limitation.

The thrust of the entire case of the plaintiff in the plaint is that the area measuring 10 Kanals 6 Marias, which has been transferred to defendant No. 1 out of the sold area of 15 Kanals 9 Marias, could not be validly done in the partition proceedings, In fact, the plaintiff wants to challenge the partition proceedings. Defendant No. 1, of course, is taking the possession in a valid form, but the actual cause of action arose to the plaintiff with the passing of the order of the Assistant Collector in the partition proceedings. The limitation has to start from the date of the order and not from the date of the alleged threat, which is in continuation and has arisen fro the first valid order passed in favour of defendant No. 1. Once the limitation has stalled, it cannot be reverted back, as alleged by the plaintiff. Also it is not a case of a title, as submitted by the plaintiff. The plaintiff himself alleges that the area measuring 15 Kanals 9 Marias was sold by the joint holders, who could sell the area but not exceed to their shares. If any area has been sold in excess of the entitlement of the vendors, it is subject to partition. Once it is established that defendant No. 1 was a co-sharer of the Khewat along with the plaintiff and other holders, he was competent to apply for partition proceedings before the revenue authorities with respect of the land, which is assessed to land revenue, and in those partition proceedings if some area has been taken out from the holding of the plaintiff, the cause of action arises to him on the date of the passing of the order. Thus, the suit of the plaintiffs prima facie barred by limitation.

It was then submitted by the learned counsel for the appellant that both the Courts fell in error in holding that the suit of the plaintiff was barred u/s 158 of the Punjab Land Revenue Act. He submitted that a question of title arose between the plaintiff and defendant No. 1 with respect to the area which has been taken out from the holding of the plaintiff and this matter could only be decided by the Civil Court. Moreover, the land has become the urban property over which construction has been raised and, therefore, it ceases to be land within the definition of the "Land'' under the Punjab Land Revenue Act. This argument is again devoid of any merit. 1 have to see the dominant purpose of the proceedings which were for the partition of the land as defined in the Punjab Land Revenue Act. It is a common case of the parties that the land in dispute was bearing Khasra numbers and it was assessed to land revenue. By mere putting the construction over the land, it does not cease its identity. The suit land is comprised in Khewat No.94 and there is no building standing on Khasra Nos.50 and 51. which is an agricultural land, as is evident fro the revenue entries. No question of any title was involved. Some area of the land was being divested from the holding of the plaintiff because some excess area was sold by Banta Singh and Santa Singh. Every sale of a co-sharer is subject to the ultimate partition, which was the proper remedy and it was rightly adopted by defendant No.l. This aspect of the case has been rightly discussed in para Nos.8 and 9 of the judgment of the first appellate Court, which are reproduced as follows:

Section 158 of the Punjab Land Revenue Act debars the Civil Court from exercising jurisdiction over matters specified therein. In the case in had the dispute is with regard to the land comprised in Khewat No.94/207 comprised Khasra Nos.50and 51. total measuring 15 kanals 9 Marias of land. The said land is described as agricultural land assessed to land revenue. The suit land is comprised in Khewat No.94 and there is no building standing on this khasra number which is an agricultural land as is evident from the revenue entries placed on the record. However, the position is different with regard to Khasra No.504 which is not the subject matter of the dispute in the present case. In the revenue record factory is recorded as standing on Khasra No.584. measuring 3 Kanals 5 Marias with which the present controversy has no concern. The suit is comprised in Khasra Nos.50 and 51 which is described as agricultural land and there is nothing available on the record to show that any building is standing on these khasra numbers.

There was no question of title involved before the Revenue Officer before whom the partition proceedings were pending. There was no dispute regarding the title. So he was not required to refer the parties to civil Court. So he was competent and had the jurisdiction to try and decide the mode of partition of the land in dispute, another point urged by the learned counsel for the appellant is that the procedure followed by the Revenue Officer is wrong and defective. But the civil Court has got no jurisdiction to sit in appeal and to decide whether the procedure adopted by the Revenue Officer was wrong or defective. So, it is evident that in the partition proceedings before the Revenue Officer there was no dispute regarding the title in the land to be partitioned. A Civil Court has got no jurisdiction to entertain any question arising out of the partition proceedings. So it is evident that the jurisdiction of the civil court is barred regarding the partition proceedings decided by the Revenue Officer, the findings of the learned lower Court on issue No.3 is correct and the same is hereby affirmed.

Thus I again affirm the findings of the courts below on issue No. 3.

Assailing the findings of the Courts below on issue No.5 it was submitted that the Assistant Collector 1st Grade adopted a wrong procedure and the order of partition was without jurisdiction, void and illegal and as such was not binding upon the plaintiff. I must say that this argument raised by the learned counsel for the appellant has not been corroborated by any document on the record. Learned counsel for the appellant has not been able to show how the Assistant Collector Grade-I was not competent to dispose of the application of defendant No. 1 with respect to a land as defined in the Punjab Land Reforms Act when no question of title was involved. The Collector was not required to refer the parties to the Civil Court. He himself was competent and had the jurisdiction to try and decide the mode of partition. An erroneous order, if any, could be challenged by the plaintiff before the Collector or before the Commissioner, but no challenge has been given to the said order. Thus I again affirm the findings of the Courts below on issue No. 5.

The last submission which was raised by the learned counsel for the appellant was that his client has become the exclusive owner of the land measuring 15 Kanals 9 Marias purchased from Banta Singh and Santa Singh and no part of this area could ever be transferred by the Revenue authorities to defendant No. 1. To me this argument is quite strange. The plaintiff could not allege that he has become the owner by way of adverse possession. Rather his case throughout was that this area was earlier purchased by his father from the co-sharers and after the death of this father he became the owner. It is not proved that Santa Singh and Banta Singh had become the owner of this property exclusively or that it was ever partitioned. A sale by a co-sharer even with respect to specific Khasra number would still be considered as a sale from joint holding, not exceeding to the share of the vendors. So long as the Khewat of the co-sharer has not been partitioned by metes and bounds the purchaser from a co-sharer will be considered as a co-sharer. In these circumstances defendant No. 1 had every right to apply for partition. The case law in this regard has rightly been appreciated by the first appellate Court regarding which I have given a reference above. At the cost of repetition I may refer to the observations of the Full Bench of this Court reported as Bhartu v. Ram Sarup (supra) where it was held that the sale of a specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding. In this view of the matter I again affirm the findings of the Courts below on issue No.8.

Resultantly, I affirm the findings of the Courts below on the issues which have been assailed before me by the learned counsel for the appellant, I find no merit in this appeal and dismiss the same with no order as to costs.