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2001 DIGILAW 669 (PNJ)

Chanan Kaur v. Gurbachan Kaur

2001-07-09

K.S.JANJUA

body2001
ORDER K.S. Janjua, F.C. - The facts in brief of this revision petition filed under Section 16 of the Punjab Land Revenue Act, 1887 are that Chanan Kaur filed an application (15.5.1993) before AC-1, Kapurthala for partition of joint land measuring 70 K-16M of her father Vir Singh, situated in village Sheikupur, Tehsil and Distt. Kapurthala Baldev Singh etc. respondent No. 4-6 submitted a memorandum of partition dated 28.9.1973 and pleaded before AC-1 that family partition had already been effected and acted upon by the co-sharers. AC-1 vide his order dated 11.3.94 directed the parties to get the question of title decided from the competent civil Court first. Aggrieved by this order Chanan Kaur went in appeal before the Collector, Kapurthala which was accepted and case was remanded to AC-1 for giving full opportunity to the petitioner of being heard and adduce evidence (12.5.95). This order was assailed by the respondents before the Addl. Commissioner (Appeals), Jalandhar who while accepting the appeal (20.6.2000) observed that question of title exists between the parties and required determination through adjudication by the competent civil Court. Hence this revision petition. 2. Sh. T.P. Singh Advocate, appeared on behalf of the petitioner and pleaded that before recording his findings by AC-1 that question of title is involved, no evidences of parties were recorded whereas para 18.2 and 18.3 of the Punjab Land Record Manual legally enjoins upon AC-1 to make an investigation before entertaining the application for partition. Secondly as per paragraphs 18.1 of the said Manual, if there is private partition the same is required to be recorded in revenue record but in this case alleged private parition has not been reflected in revenue record so it has no legal significance and it can not be inferred that question of title is involved. Thirdly the memo of partition dated 28.9.1973 is fictitious document and thumb impression of the petitioner was forged. Moreover, there is no explanation as to why the alleged private partition was not acted upon. As per copies of Jamabandi for the years 1991-92, 1996-97 all the parties have joint possession. The counsel urged to set aside the orders of AC-1 (11.3.94) and Addl. Commissioner (Appeals), Jalandhar Division (20.6.2000) and to accept the revision petition. 3. By refuting the above arguments Sh. G.S. Nagra, Advocate, counsel for the respondents submitted that Baldev Singh etc. As per copies of Jamabandi for the years 1991-92, 1996-97 all the parties have joint possession. The counsel urged to set aside the orders of AC-1 (11.3.94) and Addl. Commissioner (Appeals), Jalandhar Division (20.6.2000) and to accept the revision petition. 3. By refuting the above arguments Sh. G.S. Nagra, Advocate, counsel for the respondents submitted that Baldev Singh etc. respondents raised preliminary objections that question of title is involved in the matter because family partition had taken place in the year 1972 which was subsequently reduced in the memorandum of partition on 28.9.1973 keeping in view the entries of jamabandi and khasra girdawari. This memo was duly singed by their father Ujjagar Singh and other co-sharers. The counsel further contended that full opportunity was given to the parties and respondents produced a copy of memorandum, copies of Jamabandis and Khasra Girdawaris showing possession of land but the petitioner could say nothing in rebuttal except her bald statement. After considering the material brought on record and hearing the parties, AC-1 Kapurthala rightly directed the parties to get the question of title settled from the competent civil Court, taking recourse to provisions contained in Section 117 of the Punjab Land Revenue Act, 1887. The counsel averred that the pleading that partition can only be effected through registered deed is not supported by law because memorandum of partition was prepared after taking into consideration of entries of revenue record which are strictly in consence with the recitals in family settlement, it cannot be said that family partition was not supported by the revenue record. In support of the point the counsel referred the ruling of Ld. F.C. Punjab 1985-AILLR- 416. The counsel urged that in this case question of title is involved which has to be settled before proceeding further and the revenue office after hearing the parties to decide whether application under Section 111 can be treated as application under Section 123 for affirmation of private partition. If not possible then Revenue Officer to treat application under Section 111 in which a question of title arises and proceed in accordance with the provisions of Section 117 (1988-PLJ-197). Keeping in view the concurrent findings of AC-1 and Addl. Commissioner (Appeals), Jalandhar and facts of this case, this revision petition deserves to be dismissed. 4. I have heard counsel for the parties and have gone through the impugned orders carefully. Keeping in view the concurrent findings of AC-1 and Addl. Commissioner (Appeals), Jalandhar and facts of this case, this revision petition deserves to be dismissed. 4. I have heard counsel for the parties and have gone through the impugned orders carefully. AC-1, Kapurthala in his order dated 11.3.1994 had not accepted the plea of the private partition mainly on the ground that this had not been reflected in the revenue record. As per order of the Addl. Commissioner it is clear that during the proceedings dated 18.1.1994, 1.2.1994, 11.2.1994, 2.3.94, 9.3.94 and 11.3.94 the petitioner appeared before AC-1 and filed her replication to the written statement filed by the respondents but she failed to produce any evidence. In para 8 of the order of the Commissioner it has been made clear that there were more properties i.e. houses, shops and factories etc. also with the parties and there was no reason for discarding this memo of partition which is reasonably fair and equitable. I find merits in the pleas of the counsel for the respondents and conclude that they were in possession of the land in dispute in the capacity of co- sharers. Possession by a co-sharer in a joint holding is deemed to be the possession of all and there can, therefore, be no adverse possession of one co-sharer against the other. The respondents have thus succeeded in proving that question of title exists in view of documentary evidence. 5. As per the provisions contained in Section 117 of the Act, it becomes clear that before the partition proceedings are proceeded with the question of title if any has to be settled first. The law gives powers to the Revenue Officer, being the competent Court, to sit as a civil Court under Section 117(2)(b) of the Act ibid and decide first the issue of title. In the alternative, concerned parties go to the civil Court and get the issue of title decided. The only question arises is as to who should decide the question of title - Revenue Officer or the civil Court ? Both are the competent authority as per provisions contained in Section 117. 6. In view of above discussion the lower Courts AC-1 and the Addl. Commissioner (Appeals), Jalandhar Division has rightly decided the matter. I see, therefore, no illegality or material irregularity in these orders which could justify interference by way of revision petition. Dismissed. Both are the competent authority as per provisions contained in Section 117. 6. In view of above discussion the lower Courts AC-1 and the Addl. Commissioner (Appeals), Jalandhar Division has rightly decided the matter. I see, therefore, no illegality or material irregularity in these orders which could justify interference by way of revision petition. Dismissed. Order of the Additional Commissioner (Appeals) is upheld. Announced. Revision dismissed.