Munshi Ram vs Roshni and Others

Dharam Chand Chaudhary, J.—Deceased plaintiff Munshi Ram was in second appeal before this Court. He was aggrieved by the judgment and decree under challenge in the present appeal, passed by learned District Judge, Bilaspur, whereby on reversal of the judgment and decree passed in case No. 101/1 of 89 on 27.02.1991 by learned Sub Judge, Bilaspur has dismissed the appeal. The parties were joint owner in possession of the land situated in village Kandraur Pargana and Tehsil Sadar, District Bilaspur and in village Batoli, Pargana Bahardarpur, Tehsil Sadar, District Bilaspur.

The parties except for defendant No. 6 Santu, have their respective houses in both villages i.e. Kandraur and at Batoli. Defendant No. 6, who as a matter of fact, was tenant of the plaintiff and defendants No. 1 to 5 is resident of village Batoli. Defendants No. 1, 4 and 5 allegedly had not been cultivating the land belonging to them at village Batoli. It is the plaintiff and defendant No. 3, who used to cultivate the entire land in village Batoli because defendant No. 2 had served Indian Army for some time. The remaining defendants No. 1, 4 and 5 used to reside in village Kandraur and also to cultivate the land situated in that village. The distance between village Kandraur and Batoli is stated to be 20 kilometers.

The suit land is measuring 9-17 bighas comprised in Khata No. 4 Khatoni No. 4 Khasra No. 117 situated in village Batoli, Pargana Bahadarpur, Tehsil Sadar, District Bilaspur. During the consolidation operation in the year 1967-68, carried out in village Kandraur, the defendants thought it proper that the plaintiff should transfer his land in village Kandraur in lieu of the suit land. The plaintiff agreed thereto. The parties entered into a compromise, which was reduced into writing by the Consolidation Officer on 10.01.1970. Consequently, the plaintiff relinquished 1/3 share of his holdings in village Kandraur in favour of defendants No. 1 to 5 and in lieu thereof, the said defendants had also relinquished their share in the suit land bearing Khasra No. 117 known as ''Khad Burdi Baramadgi'' measuring 9-17 bighas and in this way the plaintiff became exclusive owner in possession of the suit land. As regards, defendant No. 6 Santu, the tenant, it was agreed upon that he will be the tenant exclusively under defendants No. 1 to 5 and the land under tenancy will be adjusted from their share without affecting the suit land, which as per compromise had to remain in exclusive ownership and possession of the plaintiff. The Consolidation Officer had recorded the statements of the parties to this effect and also passed an order regarding compromise on 10.01.1970. The 1/3 plaintiff''s share in the land situated at village Kandraur was, therefore, transferred in the names of defendants No. 1 to 5. Since village Batoli was not under consolidation, therefore, the compromise could not be given effect qua suit land situated in that village at that time. Defendant No. 1, Bajiru with an ulterior motive and malafide intention moved an application before the Assistant Collector 1st Grade, Sadar for the partition of the land including the suit land belonging to the parties in village Batoli against the plaintiff and defendants No. 2 to 6. Cross appeals preferred by the plaintiff against defendant Santu etc., and by said Santu against the plaintiff and others were pending disposal at that time and as such, the rights of the parties as regards, the status of said Santu as non-occupancy tenant was to be decided in those appeals. Defendant No. 1, Bajiru was also party in those appeals. Any how, both appeals were decided by learned District Judge. It is thereafter, defendants No. 2, 4 and 5 also joined defendant No. 3 as applicant in the application, being preferred for partition of the land in village Batoli. The Assistant Collector 1st Grade allowed the application. The order passed by the Assistant Collector 1st Grade on 21.05.1983 and affirmed in appeal by the Collector, Sadar, Sub-Division, Bilaspur on 29.09.1984 and further by the Divisional Commissioner vide order dated 25.10.1984 passed in a Revision Petition, the plaintiff preferred. It is in this backdrop, the plaintiff sought the declaration to the effect that he is owner in possession and that the order dated 21.5.1983 of the Assistant Collector 1st Grade affirmed in appeal by the Collector Sub-Division, Sadar, District Bilaspur and by the Divisional Commissioner are wrong, illegal and without any jurisdiction, hence not binding on him with a decree of permanent prohibitory injunction, restraining the defendants from causing interference over the suit land.

The defendants when entered appearance had contested the suit. They raised several objections in preliminary and on merits averred that being co-owners, they have every right to get the suit land partitioned. On the completion of the pleadings, learned trial Court has framed the following issues:

"1. Whether the plaintiff is the resident of village Batoli, Pargna Bahadarpur, Tehsil Sadar, District Bilaspur as alleged? ..OPP.

Whether the plaintiff and defendant No. 3 have been cultivating the suit land as alleged? If so, its effect? ..OPP.

Whether the parties entered into a valid compromise on 10.1.1970 as alleged. If so, its effect? ..OPP.

Whether village Batoli was under consolidation with village Kandrour? ..OPD.

Whether the orders passed by the Assistant Collector 1st Grade, Sadar dated 21.5.83 were confirmed in appeal by the Collector on 29.9.84 and revision by Divisional Commissioner on 25.10.86 is illegal, wrong and without jurisdiction as alleged. If so, its effect? ...OPP.

Whether the plaintiff has become the owner of the suit land by way of adverse possession? ..OPP.

Whether the plaintiff has got no cause of action? ...OPD.

Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? ...OPD.

Whether this Court has got no jurisdiction to try and decide this suit? ...OPD.

Whether the suit is not maintainable in the present form? ..OPD.

Whether the suit is bad for non-joinder of necessary parties? ..OPD.

Whether the plaintiff is estopped from filing the present suit by his act and conduct? ..OPD.

Whether the suit is time barred? ...OPD.

Whether the suit is barred under Section 52 of the Transfer of Property Act? ..OPD.

14-A. Whether the suit of the plaintiff is barred by the principles of res judicata? ..OPD.

Relief."

The plaintiff has himself stepped into the witness box as PW-1 and examined two more witnesses, Harbans Singh, PW-2 and Bhim Singh, PW-3 to prove the deed of compromise Ext. PW2/A. Learned counsel representing the plaintiff has tendered in his statement several documents marked as Ext. P-A to Ext. P-J and Ext. P-1 to Ext. P-9. On the other hand, the defendants have examined one Gianu Ram, Daftri Kanungo as D.W.-1, who has produced the record and Joginder Singh Verma, D.W.-2, Superintendent Consolidation Department of Bilaspur to prove the Notification dated 2.6.1970 under Section 3 of the Consolidation of Holdings Act issued qua carrying out consolidation of land in village Batoli. Bajiru, defendant No. 1 has also stepped into the witness box as D.W.-3. Learned counsel representing the defendants had tendered in his own statement several documents i.e. Ext. D-1 to Ext. D-17 in evidence. Learned lower appellate Court while deciding issues No. 1 to 6 altogether has held that the plaintiff is residing at village Batoli and it is he, who alone is cultivating the suit land exclusively. The deed of compromise dated 10.1.1970 Ext. PW-2/A was also held as legal and valid, whereas, the order passed by the Assistant Collector 1st Grade, Sadar, District Bilaspur dated 21.5.1983, Ext. D-6, affirmed by the Collector, Sadar, Sub-division, Bilaspur vide order dated 29.9.1984, Ext. D-7 and by the Divisional Commissioner vide order dated 25.10.1986, Ext. D-8 were held to be illegal, null and void and not binding on the plaintiff. It is the plaintiff who therefore, was held to be exclusive owner in possession of the suit land not only on the basis of compromise Ext. PW2/A but otherwise also having found to have acquired the title therein by way of adverse possession. While answering the remaining issues Nos. 7 to 14 and 14-A against the defendants, the suit was decreed. Learned lower appellate Court on reversal of the judgment and decree passed by learned trial Court has allowed the appeal and dismissed the suit.

The legality and validity of the judgment and decree under challenge has been questioned on the grounds inter-alia that learned lower appellate Court has not appreciated the contents of compromise deed Ext. PW2/A nor that of the order Ext. P-F passed by the Consolidation Officer, in its right perspective. As a matter of fact, defendant Bajiru while in the witness box as D.W.-3 has not specifically denied the contents thereof. The statement of Bajiru contains admissions such as that in village Kandrour, the plaintiff was in possession of 32 bighas of land out of total 64 bighas, whereas, in village Batoli half of the total land measuring 104 bighas. Also that at village Batoli the land was in possession of plaintiff, Shankar and Jagdish, the defendants. He expressed his ignorance qua the plaintiff having relinquished 1/3 share of his land in village Kandraur. There being no specific denial, it allegedly amounts to admission. The plaintiff while in the witness box as PW-1 has allegedly proved the compromise Ext. PW2/A and also signatures of one Govind thereon as Ext. P.W. 1/B and that of Shankar Ext. P.W. 1/C. He also proved the application Ext. P.W. 1/D moved for recording compromise Ext. PW2/A and also the orders passed by the Consolidation Officer Ext. P-F. The judgment and decree passed by learned trial Court without recording any legal and valid reasons, therefore, could have not been quashed and set aside. The parties though were bound by the compromise Ext. PW2/A, however, the entries in respect of the suit land situated in village Batoli due to some reason could not be entered in the name of the plaintiff. The defendants, therefore, cannot be allowed to take undue and unfair advantage thereof. The defendants are trying to partition the suit land on the basis of wrong revenue entries, therefore, the question of title raised by the plaintiff was required to be decided by the Assistant Collector 1st Grade. He, however, failed to decide such question. Presumption of truth attached to the revenue entries qua the suit land stand rebutted from the cogent and reliable evidence including the compromise Ext. PW2/A and also the order passed by the Consolidation Officer Ext. P-F. Therefore, no reliance could have been placed on the jamabandi Ext. P-1 for the year 1983-84. Learned lower appellate Court has ignored such evidence available on record which has resulted in miscarriage of justice to the plaintiff.

The appeal stands admitted on the following substantial questions of law:

"1. Whether learned District Judge has failed to record reasons for upsetting judgment and decree passed by learned Sub Judge, Bilaspur, dated 27.2.1991 and without considering grounds on the basis of which suit was decreed, the findings recorded by the learned District Judge, Bilaspur, are liable to be set aside.

Whether vital documentary evidence, i.e. compromise Exhibit PW-2/A, order of Consolidation Officer, dated 10.1.70, Exhibit PF, and entries in revenue record as contained in jamabandi for the year 1983-84, Exhibit PI and copy of Istemal Exhibit P-4 has been misconstrued, misread and mis-appreciated.

Whether parties are bound by the compromise Exhibit PW-2/A, as well as order as passed by the Consolidation Officer, Exhibit PF, especially for the reason that respondents never threw any challenge to the validity of these documents before competent Court of law?

Whether respondents have no right to claim partition of land in suit as entered against Khasra No. 117 measuring 9 bighas 17 biswas situated at village Bhatoli, Tehsil Sadar, District Bilaspur in view of the compromise Exhibit PW-2/A and the order of the Consolidation Officer, Exhibit PF?"

Mr. G.D. Verma, learned Senior Advocate has highlighted the deed of compromise Ext. PW-2/A and the order Ext. P-F passed by the Consolidation Officer and urged that the suit land situated at village Batoli is exclusively in the ownership and possession of the plaintiff having been given to him in lieu of 1/3 share out of the land belonging to him at village Kandraur. According to Mr. Verma, learned lower appellate Court has misread, misconstrued as well as ignored the evidence produced by the plaintiff. It has also been argued that the compromise Ext. PW-2/A in the nature of family settlement should be honoured. On the other hand, Mr. Bhupinder Gupta, learned Senior Advocate while repelling the arguments addressed on behalf of the plaintiff has urged that the order Ext. P-F based upon the compromise pertains to partition of the Khatas and in such matters the jurisdiction of the Civil Court is barred, unless the order passed is illegal and violative of the legal provisions. Mr. Gupta has brought to the notice of this Court the order Ext. D-6, qua mode of partition passed by the Assistant Collector, affirmed further by the Sub Divisional Collector, Sadar Sub-division, Bilaspur vide order Ext. D-7 and also by the Divisional Commissioner vide order Ext. D-8. The order qua mode of partition Ext. D-6 having not been assailed by the plaintiff has, therefore, attained finality. Therefore, the jurisdiction of the civil Court is barred. As regards, the plaintiff''s claim that defendant No. 6 Santu as per compromise Ext. PW2/A is tenant under defendants No. 1 to 5 is stated to be wrong, as according to Mr. Gupta, Civil Suit filed by said Sh. Santu was decreed vide judgment and decree, Ext. D-1/D-2 against the plaintiff and defendants and he has been held tenant under them. The appeals preferred against the same were dismissed by learned District Judge vide judgment and decree Ext. D-3. The judgment and decree so passed having attained finality, therefore, defendant No. 6 Santu is tenant under the plaintiff and defendants No. 1 to 5 and not under defendants No. 1 to 5 alone. In execution petition, defendant No. 6, Santu rather stated to be put into possession of the land under tenancy with him vide order Ext. D-4. No evidence is stated to be produced to show that the suit land was relinquished by the defendants in favour of the plaintiff in lieu of his land at village Kandraur. Otherwise also, order Ext. P-F passed by the Consolidation Officer has not been assailed by the plaintiff anywhere else including in the present suit. Therefore, the plaintiff being a co-owner without pleading ouster of the defendants from the suit land cannot be granted the relief, as sought, in the plaint.

On analyzing the claims and counter-claims, as aforesaid, it is seen that it is the compromise deed Ext. PW-2/A and the order Ext. P-F, have been mainly emphasized on behalf of the plaintiff. As a matter of fact, substantial questions of law No. 2, 3 and 4 also pertain qua the construction and appreciation of these documents.

It is surprising to note that in the deed of compromise Ext. PW-2/A, there is no mention of the suit land bearing Khasra No. 117 situated in village Batoli allegedly relinquished by defendants No. 1 to 5 in favour of the plaintiff in lieu of his land in village Kandraur to the extent of 1/3 share, he gave to defendants Jagdish and Shankar in equal share and 1/4 share to defendants Bajiru, Lachman and Govind. True it is that the compromise Ext. PW-2/A was arrived at between the parties during the consolidation proceedings having taken place in the year 1969-70 in village Kandraur and the plaintiff, as per this document, had agreed to give 1/3 share out of his land situated there to S/Sh. Jagdish and Shankar in equal share and 1/4 shares to Bajiru, Lachman and Govind and retained 2/3 thereof for him, however, without there being any mention of relinquishment of the suit land situated in village Batoli by the defendants in his favour. This document, therefore, is hardly of any help to the plaintiff nor he is justified in claiming that by virtue of this document, he has become exclusive owner of the suit land. Similarly, order dated 10.1.1970, Ext. P-F is also of no help to the plaintiff for the reason that the same records only the compromise arrived at between the plaintiff qua relinquishment of the land at village Kandraur by the plaintiff in favour of defendants No. 1 to 5 and there is not even a whisper qua the suit land in this document also. Therefore, there is no iota of evidence to infer that defendants No. 1 to 5 had relinquished their share in the suit land in favour of the plaintiff, pursuant to the compromise Ext. PW-2/A. Learned lower appellate Court has, therefore, appreciated both these documents in its right perspective and not mis-construed, misread or mis-appreciated the same.

A plethora of documents in the form of evidence have been brought on record by the plaintiff and for that matter by the defendants also, are hardly of any help, because the same pertains to the entire land belonging to the parties to the suit in both villages i.e. Kandraur and Batoli. There is no dispute qua the same. Therefore, entire evidence needs not to be discussed. Suffice would it to place reliance on Ext. P-1, jamabandi for the year 1983-84 and Ext. P-4, copy of misal hakiyat bandobast jadid for the year 1971-72. As per these documents, no doubt, the suit land bearing Khasra No. 117 measuring 9-17 bighas has been shown in possession of the plaintiff, but as a co-sharer and not in exclusion of other co-owners. As a matter of fact, plaintiff is one of the owners along-with others i.e. defendants herein so far as the suit land is concerned. Of course, he has been shown in possession thereof, however, not as an owner, but in the capacity of a co-sharer. Therefore, there is no question of mis-reading or mis-appreciation of documents Ext. P-1 and Ext. P-4. The law on the rights and interests of co-sharers in the joint land is no more res-interga. A Division Bench of Punjab and Haryana High Court in Sant Ram Nagina Ram Vs. Daya Ram Nagina Ram and Others, , has discussed the rights and liabilities of the co-owners as under:--

"1) A co-owner has an interest in the whole property and also in every parcel of it.

2) Possession of the joint property by one co-owner is, in the eyes of law, possession of all even if all but one are actually out of possession.

3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.

4) The above Rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other, as, when a co-owner openly asserts his own title and denies that of the other.

5) Passage of time does not extinguish the right of the co-owner, who has been out of possession of the joint property except in the event of ouster or abandonment.

6) Every co-owner has a right to use the joint property in a husband-like manner not in consistent with similar rights of other co-owner.

7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to anyone to disturb the arrangement without the consent of the others except by filing the suit for partition.

8) The remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession, but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself.

9) Where a portion of the joint property is, by common consent of the co-owners, reserved for a particular common purposes, it cannot be diverted to an inconsistent user by a co-owner; if he does so, he is liable to be ejected and the particular parcel will be liable to be restored to its original condition. It is not necessary in such a case to show that a special damage has been suffered. Case law reviewed."

It is thus seen that a co-owner has interest in the whole property and possession of one co-owner in the joint property is possession of all, even if the other co-owners are out of possession. The plaintiff may be cultivating the suit land as he was residing at village Batoli. The other defendants except Jagdish were residing at village Kandraur. This, however, cannot be taken ouster of other co-owners from the suit land, more particularly, when the pleadings or evidence to this effect is not available on record. It is significant to note that in an application filed by Bajiru, defendant No. 1 before the Assistant Collector 1st Grade, Tehsil Sadar, District Bilaspur qua partition of the joint land of the parties situated at village Batoli, the order Ext. D-6 qua partition thereof dated 21.5.1983 has been passed. Even the mode of partition also drawn. Appellant-plaintiff Munshi Ram had assailed the order Ext. D-6 before the Collector, Sadar, Sub-Division, Bilaspur in an appeal under the H.P Land Revenue Act. The same, however, was affirmed by the learned Collector and the appeal dismissed vide order dated 29.9.1984, Ext. D-7. The plaintiff had assailed the order Ext. D-7 further before the Divisional Commissioner, Bilaspur under Section 17 of the H.P. Land Revenue Act, however, unsuccessfully, because the revision petition was also dismissed vide order Ext. D-8. The order of partition having not been assailed by the plaintiff-appellant any further, has thus attained finality and the same in view of the jurisdiction of the civil Court barred in such matter, the decree as sought cannot be granted. While arriving at such a conclusion, this Court has drawn support from the judgment rendered by a Co-ordinate Bench of this Court in Bal Krishan and Others Vs. Surinder Kumar and Others, . The contention to the contrary that the suit has been filed on the basis of the title, hence the jurisdiction of the civil Court is not ousted is without any substance, for the reason that not only the plaintiff but the defendants are also co-owners, so far as the suit land is concerned. The present is also not a case where it can be said that learned lower appellate Court has not recorded the reasons while setting aside the judgment and decree passed by learned trial Court. As a matter of fact, the foundation of the suit is on the compromise deed Ext. PW-2/A. When there is no mention of the suit land in this document, therefore, it cannot be believed by any stretch of imagination that the defendants have relinquished their rights therein and given the same exclusively to the plaintiff. Learned lower appellate Court has discussed this part of the matter in detail in the judgment and decree under challenge and observed as follows:

"13. It is in evidence that there has been a dispute regarding partition in village Kandraur in the year of 1969-70 when village Kandraur was under consolidation and the parties wanted their land to be separated, they entered into a compromise to settle their previous dispute and the compromise was written on 4.1.70, in the presence of Lachhman, Govind Ram, Shankar Singh, Munshi Ram and father of Jagdish, defendant as he was in the Military at that time and the compromise was written by Shri Sant Ram in the presence of Shri Kanshi Ram, Bhulu Ram, Bhim Singh, Bohru Ram, Kirpa Ram and Kanshi Ram witnesses and this compromise Ex. PW-2/A on record. The recitals of this compromise shows that plaintiff has gifted away 1/3rd share out of his land in favour of defendants No. 1 to 5 i.e. defendants No. 2 and 3 i.e. Jagdish and Shankar sons of Shri Pohlo Ram equal share, 1 share Baziru, Lachhman, Govind to the extent of 3/4 shares and the remaining land to the extent of 2/3 shares was kept by the plaintiff. No doubt, Shri Baziru and Jagdish, defendants were not there at the time of execution of this compromise but, the absence is not fatal in view of this compromise. They are only the gainers and not looser and by way of this compromise they are getting some land in village Kandraur. Shri Pohlo Ram, father of Jagdish has put his thumb impression on this compromise on behalf of his son who was in Military at that time, meaning thereby that everybody was a consenting party and Jagdish must have instructed his father to enter into such compromise which was in his favour. It is also clear from other proceedings during consolidation that the father of Jagdish has been acting every-where on behalf of his son and was watching his interest, therefore, absence of Baziru and Jagdish were not prejudicial to their interest. Therefore, it was a valid compromise. After this compromise, the parties appeared before, C.O. on 10.1.70 and this compromise was produced before him, which was kept in the record by him. In addition to this compromise, the statements of the parties i.e. Munshi Ram, plaintiff, which is Ext. PW-1 on record and mark X., statement of Lachhman mark Y, statement of Govind mark Z, statement of Baziru mark Z/1, statement of Shankar mark Z/2, statement of Pohlo Ram, father of Jagdish are on record. In his statement, the plaintiff stated before the C.O. that a compromise has been arrived at between him and co-sharers, Lachhman, Govind, Baziru, Jagdish and Shankar, residents of village Kandraur which has been placed on file and he has gifted 1/3rd share out of his land from khewat No. 15, 16, 17, 25 and 26 to Shri Lachhman, Govind, Baziru sons of Kahana in equal shares and they have also agreed that the land which is in possession of Santu as tenant in village Batoli and is under dispute, that land during consolidation and in partition will be deducted from their share i.e. the share of defendants No. 1 to 5 and in addition to it the land situated in village Batoli, and is subject to delluvion and which has been made cultivable by him will be put in plaintiff''s cultivation and the other co-sharers have no right to get this land partitioned. On this condition, the plaintiff agreed to get his land partitioned in village Kandraur. This statement was admitted to be correct by the defendants and they also gave their consent to act upon it. Thereafter a formal order was passed by C.O. on 10.1.70, which is Ex. P-F on the file to order the partition of the land in village Kandraur. The statements of the parties and the compromise were reflected in the order of Ld. C.O. Therefore, it can safely be concluded on the basis of the compromise that the parties wanted to act upon it to get their land partitioned in village Kandraur. Had this compromise been against the provisions of law, the learned C.O. would have not allowed to act upon the said compromise and the statement of the witnesses? The consent of Baziru, defendant is also clear as he appeared before C.O. on 10.1.70 and endorsed the statement of the plaintiff along with other defendants, which shows that Shri Baziru was also interested to enter into a compromise which has settled the dispute between them. Shri Baziru while appearing in witness box has denied his thumb impression on the statement, therefore, the opinion of expert was obtained, who has confirmed that the thumb impression is one of the same person who has given their thumb impression in the Court and they were the defendants and same is the report of hand writing Expert regarding the signatures of Govind and Shankar. The plaintiff has corroborated in his statement that they (the defendants) have put their thumb impressions and signatures on the statements given by them before the C.O. on 10.1.70. Therefore, this issue is decided accordingly.

The evidence led by the parties, particularly, by defendants, which has shown that village Kandraur and village Batoli were under consolidation, during the same time as Ex. D-9 dated 10.6.70 is copy of resolution under Section 3(1) and Ex. D-10 is again copy of resolution dated 24.1.70. Ex. D-11 is also copy of the resolution. Ex. D-12 is copy of proceedings under Section 17(1), Ex. D-13 is also compromise of Shri Sita Ram of village Kandraur with Shri Sant Ram of the same village (who are not parties to the suit), that both the villages were under consolidation during the same time, but, it is clear that the compromise which took place at village Kandraur between the parties (excluding defendant No. 6) was not given effect properly or if, given effect, then the land was recorded in possession of the plaintiff, i.e. khasra No. 117 as shown in Misal Hakiat for the year 1971-72 (Ex. P-4) in possession of the plaintiff and defendant No. 6, Santu, who was tenant under the other co-sharers and plaintiff shown in khewat No. 8 Khatoni No. 16 to be under the person recorded in possession under Khatoni No. 15 in the same Missal Hakiat and they are none else, but, Jagdish, Shankar, Baziru, Lachhman, Govind, Hissedaran. It does show that the compromise entered into between the parties and regarding the land of village Kandraur was given effect and the land which was subject to Khud Action and the tenancy of Santu was also recorded in the same manners to which the parties agreed. Hence, issue is decided in favour of the defendants, but, this issue has not adverse effects over the rights of the plaintiff in the suit land. Hence, this issue decided accordingly."

The judgment, on the face of it, is reasoned one, hence the contentions to the contrary are neither legally nor factually sustainable.

The crux of what has been discussed hereinabove is, therefore, that the compromise Ext. PW-2/A does not pertain to the suit land. The same is joint of the parties to the lis. The Assistant Collector 1st Grade has, therefore, rightly ordered the partition thereof vide order Ext. D-6, on an application filed by defendant No. 1 Bajiru. The said order affirmed by learned Sub-Divisional Collector vide order Ext. D-7 and also by the Divisional Commissioner, Bilaspur vide order Ext. D-8, therefore, cannot be said to be illegal, null and void and the same rather is binding on the parties including the plaintiff. The suit land being joint of both parties has rightly been ordered to be partitioned. The compromise Ext. PW-2/A confines only to the joint land belonging to the parties situated in village Kandraur. The present is not a case of mis-appreciation, misreading or misconstruction of the evidence and as such, the contentions to the contrary are neither legally nor factually sustainable. The law laid down by a Coordinate Bench of this Court that the reversal of the trial Court judgment without analyzing the evidence on record is not legal and valid, in Ramji Vs. State of H.P. and Others, is not at all applicable in the given facts and circumstances of this case. The ratio of the judgment of the apex Court in Payappar Sree Dharmasastha Temple A. Com. Vs. A.K. Josseph and Others, is also not applicable in the present case, because when the High Court in 1st appeal did not appreciate the evidence on record, it is in that background, the apex Court has held that the High Court committed a manifest error on the face of the record. The present, however, is a case where the 1st appellate Court has appreciated the evidence available on record in its right perspective. True it is that in terms of ratio of the judgment of the apex Court in Narendra Kante Vs. Anuradha Kante and Others, , under Hindu law a family arrangement/settlement qua joint family property should be honoured by all concerned, even if such settlement is not signed by all the co-sharers. However, this judgment is not applicable in the case in hand, for the reason that the compromise Ext. PW-2/A does not at all concerned with such property and as such, there is no question of dishonouring of the same by the respondents-defendants. True it is that the High Court in second appeal may interfere with the concurrent findings, however, only when an important piece of evidence in the nature of an admission by defendants has been overlooked. Here the suit is based upon the deed of compromise Ext. PW-2/A. The suit property not finds mention therein. The admission made by defendant No. 1 while in the witness box as D.W.-3 that the parties had joint property in two villages, namely, Kandraur and Batoli and that the compromise Ext. PW-2/A was entered into qua their land situated in village Kandraur, are admissions hardly of any help to the plaintiff''s case. Expressing ignorance by the said witness qua the relinquishment of the suit land in favour of the plaintiff vide compromise Ext. PW-2/A is also of no help to the plaintiff''s case, because same in fact is not covered by this document. Therefore, the ratio of judgment again that of the apex Court in Deva (Dead) thr. Lrs. Vs. Sajjan Kumar (Dead) by Lrs., is not applicable. Learned Senior Advocate representing the appellant-plaintiff has placed reliance on State of Punjab Vs. Mohinder Singh, and Thiagarajan and Others Vs. Sri Venugopalaswamy B. Koil and Others, . However, the law laid down in these judgments is also not applicable in the case in hand.

In view of what has been said hereinabove, no question of law what to speak of substantial questions of law as formulated in the present appeal arises for consideration by this Court. The judgment and decree under challenge is, therefore, legally and factually sustainable. The same is hereby ordered to be affirmed. The present appeal fails and the same is accordingly dismissed. No order so as to costs.