Mehar Singh and Others vs Het Ram and Others

Deepak Gupta, J.—This appeal is directed against the judgment and decree dated 22.7.2000 passed by the learned Additional District Judge, Solan in three separate civil appeals whereby he dismissed the appeals and upheld the judgment and decree of the learned trial Court dated 24.7.1998 in three separate civil suits, dismissing the suits of the Appellants (hereinafter referred to as the Plaintiff).

This appeal was admitted on the following questions of law:

Whether both the Courts below have absolutely misapplied the provisions of Registration and Stamp Act in rejecting Exhibit PA from evidence without considering whether such Acts were in evidence and applied in erstwhile State of Kohistan as the document Exhibit PA was executed in the year 1933?

Whether both the Courts below have ignored from consideration the provisions of Indian Evidence Act in rejecting Exhibit PA from evidence being not properly proved and also questioning its genuineness? Was not Exhibit PA being a document more than 30 years old, had the presumption of truth attached under the provisions of Evidence Act have not both the courts below wrongly rejected such document from consideration on the ground mentioned in their respective judgments?

When the respective parties have been recorded in separate and exclusive possession under the revenue records for more than 6 decades and there was sufficient oral evidence to show that the parties separately have developed the lands in their respective possession, was not a circumstance to hold to uphold the claim of the Plaintiff-Appellants on adverse possession? Have not both the courts below acted beyond their jurisdiction to reject such contention of the Plaintiff-Appellants merely basing their findings on the revenue record, presumption of truth to it stood rebutted on account of the material on record?

Whether the trial court has wrongly exercised jurisdiction in rejecting the application of the Plaintiff-Appellants on the ground that Exhibit PA is not relied upon by the Plaintiff-Appellants in their pleadings and as well as before the revenue officer, are not such findings based on misreading of the record, inasmuch as, the amended pleadings of the Plaintiff-Appellants were duly permitted, have been ignored and also the orders of the revenue officer placed on record, misread?

The case of the Plaintiff was that Dhani Ram and Chuhar Singh had filed two separate partition applications in the court of Assistant Collector 1st Grade, Kandaghat. The Plaintiff resisted these applications on various grounds and a question of title was raised. Finally the Financial Commissioner directed the parties to get their rights adjudicated by a Civil Court. The case of the Plaintiff basically is that the land already stood partitioned by way of a family settlement and thereafter the parties are in exclusive possession of their shares. Ext. PA is the document which evidences the fact that such family arrangement was arrived at. Both the Courts below have held that no reliance can be placed on this document, since it is neither stamped nor registered. Therefore, the aforesaid questions of law were also framed.

However I am of the view that it is not necessary to answer these questions because this appeal has to be rejected on the ground that even if such document was a valid document no partition of agriculture land could have taken place without getting it confirmed/affirmed by the revenue officials. A Learned Single Judge of this Court in Mangat Ram v. Gulat Ram (since deceased) through his L.Rs. Jagdeep Kumar and Ors. Latest HLJ 2001 (HP) 274 after discussing the entire law on the subject held as follows:

Prior to passing of the order by the competent authority, no partition by metes and bounds ever took place between the parties. Court below rightly came to the conclusion that private partition was actually an arrangement for the purpose of cultivation of land. It was not a final partition of the land by metes and bounds so as to effect severances of joint holdings. Had it been so, parties would have definitely got this fact recorded in the revenue record and resorted to the mandatory provisions of Sections 35 and 135 of the Act. Act is a complete code in itself. It provides procedure for preparing revenue record. u/s 35, any person acquiring right in an estate as a land owner is required to report the same to the Patwari of the estate, who in turn, is obliged to enter this fact in the register of mutations maintained by him. Whenever there is partition without intervention of the Revenue Officer, Private party is required to apply to the Revenue Officer for order of confirmation/affirmation of partition. The Act provides that in such like cases Revenue Officer is mandatorily required to inquire the fact as to whether in fact partition was ever effected upon or not. Revenue Officer is required to comply with the statutory provisions laid down under Chapter 9 of the Act. Admittedly in the instant case parties have not resorted to such measures. Partitions entered into in the year 1961 and 1972/74 is no partition in the eyes of law.

This Court in Leetho Vs. Chamelo and Others, while dealing with the question of jurisdiction of the Civil Court to entertain a suit filed by the Plaintiff, assailing the order, of partitioning the land, passed by the competent authority, has specifically held that partition, whether by way of family settlement or family arrangement or by Revenue Officer by giving effect to the family partition or settlement by metes and bounds, should be such which may conclusively establish the respective shares of the parties so as to stop further dispute in between them. Mere arrangement in regard to cultivation of land cannot be termed as partition though such arrangement at the time of final partition by Revenue Officer should be given due consideration in order to maintain possession of the parties intact.

Significantly while passing the order in question, Revenue Authority has kept this principle in mind and suit land pertaining to only two khasra numbers has been ordered to be handed over to Gulat Ram as his share in the estate of his father. Significantly possession of the parties qua other joint land has not been disturbed. This in fact is in consonance with the statements of the parties and more particularly that of Mangat Ram, made before the Revenue authorities to the effect that they were ready to distribute the land for settlement of equities amongst the share holders.

While considering the provisions of Section 123 of the Punjab Land Revenue Act, which are paramateria with Section 135 of the Act, Punjab and Haryana High Court in Chander Bhan v. Hari Ram and Ors. 1996 (1) Shim. LJ 696 has held that requirement of reporting the factum of private partition to the revenue authorities is must.

In Janku and Others Vs. Nagnoo and Others, , in almost similar circumstances where on the basis of respective possession of the parties land revenue was not assessed separately in the revenue record (jamabandi), Court repelled the contentions of the parties that the land stood partitioned by way of private partition.

Admittedly, no further action has been taken pursuant to the document Ext. PA. It has neither been reported to the revenue authorities nor the revenue authorities passed any order to make the entry in the register of mutation with regard to the aforesaid order. Therefore, no reliance can be placed on Ext. PA to hold that there was a partition between the parties. Therefore, there is no merit in the appeal, which is accordingly rejected. No costs.