Ramrati vs Jagmal Singh

N.K. Kapoor, J.

This is defendant''s appeal against the judgment of the Additional District Judge, Rewari, dated 20.3.1991 whereby the appeal filed by the plaintiff against the judgment and decree of trial Court was accepted and suit of the plaintiff for possession by way of preemption was decreed subject to deposit of the remaining decretal amount less the amount of preemption money already deposited by the plaintiff on or before 30.4.1991.

Briefly put the plaintiff filed a suit for possession by means of pre emption claiming himself to be a cosharer in respect of the saledeed dated 4.2.1988 executed by Daya Chand, another co sharer, for sale consideration amount of Rs. 25,000/. The plaintiff further stated that the sale was made without any notice to him. On the other hand, vendee/defendant is a stranger and thus the plaintiff being cosharer has super for right to preemption.

Defendant No. 1 put in appearance, admitted the sale in her favour but denied that any part of the sale consideration was fictitious. The defendant further stated that the plaintiff was not a cosharer in the joint khewat of which the suit land is a part and so had no right to preempt the same. In addition to this, defendant claimed expenses of stamp and registration charges and sale consideration in case the suit of the plaintiff is decreed.

The trial court framed the following issues :

Whether the plaintiff has preferential right to preempt the sale in question as alleged ? OPP.

Whether the sale price was fixed in good faith or actual paid to the vendor ? OPP.

If issue No. 2 is not proved, what was the market value of the suit land at the time of its purchase ? OPP.

Whether the plaintiff has no locus standi to file the present suit ? OPD.

Whether the suit is time barred ? OPD.

Whether the plaintiff is entitled to the stamp and registration charges ? OPD.

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

Relief.

Vide judgment and decree dated 27.8.1990, issue No. 1 was decided against the plaintiff, issue No. 2 was decided in favour of the defendant and in view of findings on issue No. 2, issue No. 3 was left undecided. Issues No. 4 and 5 were not pressed by the defendant. Issue no. 6 was decided in favour of the defendant and issue No. 7 in favour of the plaintiff. In view of findings on the pivotal issue No. 1, suit of the plaintiff was dismissed.

The plaintiff challenged the findings of the trial Court by way of appeal. Before the appellate Court, the appellant strenuously urged that the trial Court has, in fact, erred in law in deciding issue No. 1 against the appellant. According to the appellant, be was duly recorded as a cosharer as per copy of jamabandi for the year 198283. He further urged that the trial Court has clearly erred in law in not properly perusing the relevant document with regard to the alleged partitioning of the joint holding. Elaborating, the counsel urged that though the application for partition was filed by the present appellant but the same was dismissed in default as is clear from the document Exhibit P3. Through no application for restoration of this application for partition was moved by the appellant but somehow on the application of Smt. Ram Rati, respondent, the same was restored ex parte and an order was passed for preparation of Naksha Bay and Naksha Jeem. Per se these orders were against the provisions of the Punjab Land Revenue Act, 1887, as the order for preparation of Naksha Bay was passed without determining the objections of the parties with regard to the mode of partition. Even the subsequent proceedings ordered, i.e., for preparation of ''Naksha Jeem'' is not in conformity with section 121 of the Punjab Land Revenue Act, 1887 (for short "the Act") which envisages that as and when partition is completed, the revenue officer shall cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein, which, admittedly, was not adhered to in the instant case. Not only this, even the alleged order of partition has been set aside by the Collector vide order dated 27.2.1991. The appellate Court after examining the factual aspects highlighted by the counsel for the appellant and keeping in view, the provisions of the Punjab Land Revenue Act came to the conclusion that there has been no partition of the land holding the appellant had a superior right of preemption in respect of the impugned sale. Consequently. the appeal was accepted subject to the appellant, depositing the remaining amount of consideration on or before 30.4.1991.

The learned counsel for the appellant has assailed the judgment and decree of the Additional District Judge on the ground that the learned Additional District Judge has erred in law ignoring the fact that the land stood partitioned as is clear from the orders passed by the Assistant Collector Ist Grade with regard to preparation of ''Naksha Bay and Naksha Jeem''. Merely for the reasons that the revenue officer while ordering for preparation of ''Naksha Jeem'' which is nothing but drawing of instrument of partition in terms of section 121 of the Act did not mention the date on which the partition is to take effect by itself is no ground to conclude that the land has not been partitioned. Similarly, the order for preparation of ''Naksha Bay'' would imply that objections with regard to mode of partition has been found to be without merit. This way, the court has misconstrued the document which has resulted in passing of impugned judgment and decree.

I find no merit in any of the submissions made by the learned counsel for the appellant. Chapter IX of the Punjab Land Revenue Act, 1887, deals with partition proceedings. Any joint owner of land or any joint tenant of a tenancy in which right of occupancy subsists can apply to a Revenue Officer for partition of his share in the land or tenancy as the case may be. On receiving such an application, notice is to be served on the other party who can raise dispute as to the title in the property of which the partition is sought or as to the mode of making the partition. Section 117 of the Act envisages determination of question of title which further gives a right of appeal to an aggrieved person. Section 118 of the Act deals with other questions than the question of title, i.e., as to the property to be divided or the mode of making partition. Even an order passed by the Revenue Officer under section 118 of the Act gives a right of appeal to an aggrieved person. The brief resume of the relevant provisions, as given above, reveals that the question of title, property to be divided and the mode of making partition have to be determined before proceeding any further. In the present case, the Collector in appeal has held that there has been noncompliance of the mandatory provisions of Sections 118 and 121 of the Act as without determining the mode of partition, the Revenue Officer ordered for preparation of ''Naksha Bay'' and this way deprived the party from challenging the same by way of appeal in terms of section 118(2) of the Act. Not only this, even the alleged instrument of partition does not specify the date on which the partition is to take effect. Examined thus, there is no manner of doubt that there was no partition of the joint holding at the time when the sale took place, the date on which the suit was filed or on the day when decree was passed. Points raised in the appeal are met by the judgment of this court in case reported as Pritam Singh v. Jaskaur Singh, 1992 PLJ 435 : 1993(1) RRR 390 (DB). No other point was pressed or claimed. The appeal is without merit and consequently the same is dismissed. No order as to costs.