Naib Singh and Others vs Ajaib Singh

G.R. Majithia, J.—The defendant has come up in Regular Second Appeal against the judgment and decree of the first Appellate Court reversing on appeal those of trial judge and decreeing the suits of the plaintiffs for separate possession by partition of the suit land.

The facts :--

The respondent (hereinafter referred to as the plaintiff) filed a suit for separate possession by partition of the suit land against the appellants (hereinafter referred to as the defendants). The parties are brothers. One of their brothers Malkiat Singh had died prior to the filing of the suit and his estate was suceedad to by defendants No. 3 and 4. The plaintiff claimed that the suit land was inherited by the parties from their father in equal shares and he had 1 /6th share in the estate of his father. There was partial partition between the parties but the land comprised in Khewat No. 730, Khatauni No. 77(sic), Khasra Nos. 214, 215, 352 and 353 continued to be joint property of the parties. The plaintiff moved the revenue officer for partition of the land. The application f or partition was declened on the ground that the plaintiff had not included the entire joint land in his petition for partition of the joint property and that some part of the land had ceased to be agricultural land since it had been partially built up He sought declarator that he was entitled to 1/6th share in the said land and he was entitled to separate possession by partition.

The defendants contested the claim of the plaintiff and pleaded that an oral partition was effected and it was followed by a memorandum of partition duly drawn and there was no joint land.

From the pleadings of the parties following issues were framed :--

Whether the plaintiff is entitled to the partition of the land in dispute ? OPD

Whether the suit of the plaintiff is barred by the principle of res judicata ? as alleged in para No. 1, of the preliminary objections in the written statement ? OPD

Whether the plaintiff has no right to sue for separate possession by partition of the land in suit ? OPD

Whether the suit for the plaintiff is liable to be dismissed because the plaintiff did not deposit the conditional costs for the withdrawal of the previous suit ? OPD

Relief

The trial court found that vide Ex DW 1/1, dated june 1, 1952, the plaintiff was giving l/6th share in the agricultural land and he was also given 1/6th share inside the Abadi adjoining the property of Bishan Singh and Gurdial Singh. He also found that the parties are in separate possession of the agricultural land allotted to them vide writing Ex. DW 1/1 and the plea of the plaintiff that the suit land was kept as joint property was negatived. He also found that the plaintiff was in exclusive possession of his house which was built in one of the disputed khasra numbers. Issue No. 2 was answered against the defendants. The plea covered under issue No. 4 was given up by the counsel for the defendants and in view of his statement no finding was recorded on that issue. The suit of the plaintiff was dismissed.

On appeal, the first Appellate Court, found that the writing Ex. DW 1/1 was not a family settlement but was a partition deed which was inadmissible in evidence for want of registration. It further held that in the Jamabandi for the year 1964-65, the suit land is described as a joint property of the owners Since the property was joint, the co-sharers were entitled to partition.

The entire approach of the first Appellate Court is erroneous He did not meet with the reasonings of the trial judge while reversing the finding of the letter under issues No. 1 and 3. The Appellate Judge did not appreciate that the parties to the lis are brothers and that once it is found that the family settlement was voluntary and bona fide, the same would be binding on the parties and it would operate as an estoppel preventing the parties after having taken advantage under the arrangement to resile from the same or to revoke it. The reading of document Ex DW1/1 shows that the plaintiff was given 1/6th share in the Abadi inside the Phirni. The parties were already in separate possession of the agricultural land Vide Ex. D2 the Assistant Collector 1st Grade exercising the powers of the Civil Court held that the land comprising in Khasra Nos. 352, 353 of khewat No. 810 Khatauni No. 84(sic) as entered in the Jamabandi for the year 1964-65 was not partible since it was situate in the village Abadi. This document lends credence to the defendants version that pursuant to Ex. DW1/1, dated June 1, 1952 houses were constructed on the land given to the plaintiff under this document. The family settlement was acted upon. The parties entered into respective possession of the parts allotted to them and they raised construction thereon. The defendants succeeded in proving their case that the land comprised in Khasra Nos. 352 and 353 was not partible since it had ceased to be agricultural land and houses have been built upon it. The houses were only built upon it after the parties entered into separate possession in pursuant to Ex. DW1/. The partition of the joint land was effected and the factum of partition was incorporated in the Jamabandi for the year 1974-75 vide mutation No. 4843, Ex P3. The parties thereafter entered into separate possession of the respective killa numbers allotted to them in the partition mentioned in Ex. P3. The plaintiff was not correct in his statement that the joint land had not been partitioned. The first Appellate Court was swayed away by wholly irrelevant consideration that the property was joint. It did not take into consideration the documentary evidence the order of the Collector Ex D2 and the Jamabandi for the year 1974-75, Ex. P3 in which it has been mentioned in the remarks column, in red ink, that the partition had been effected and mutation No. 4843 was sanctioned to it. This evidence was ignored by the first Appellate Court The joint land having already been partitioned and the factum of partition having been duly incorporated in the revenue record, it could not be said that the property was still joint. Consequently the appeal succeeds, the judgment and decree of the first Appellate Court is reversed and that of the trial judge is restored. No order as to costs.