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2008 DIGILAW 83 (HP)

Munni Lal v. Nomi

2008-03-17

SANJAY KAROL

body2008
JUDGMENT (Sanjay Karol, J.) (Oral) - The present appeal arises out of the concurrent findings of facts recorded by the Court below. 2.The appellant, as plaintiff filed a Civil Suit No. 418-1 of 1998 before the Sub Judge, Ist Class, Theog, Distt. Shimla, seeking a declaration and injunction and challenging the legality of the orders dated 5.3.1998 and 21.9.1998 passed by the Assistant Collector, Ist Grade, Kotkhai, partitioning the suit premises owned by the parties, which was initially jointly owned and possessed by S/Shri Roop Dass and Kanahiya. As per the plaintiff, the said land was jointly wound by S/Shri Roop Dass and Kanahiya. Smt. Balnu inherited the estate of Shri Roop Dass, who gifted her share to S/Shri Gaya Nand, Udey Singh and Lachmi Nand. Shri Kanahiya gifted his share to the plaintiff vide Gift Deed dated 30.11.1979. An oral partition took place between the plaintiff and Gaya Nand and the parties came into separate possession of their respective shares and developed the land by planting an orchard thereupon. In the year 1983, Shri Gaya Nand sold the land to the defendants/present respondents. 3.Since the oral partition was not recorded in the revenue record, the defendants, taking undue advantage of the same moved an application under Section 123 of the H.P. Land Revenue Act seeking fresh partition of the land. The revenue authorities allowed the application directing partitioning of the land. Thus, the suit was filed. The defendant resisted the suit on the ground that the plaintiff’s plea was sham, concocted and contrary to the record. 4.The trial Court framed the following issues :- “1. Whether the plaintiff is owner in possession of the suit land as alleged ? OPP 2. If issue No. 1 is proved in affirmative, whether the orders dated 5.3.1998 and 21.9.1998 passed by A.C. Ist Grade, Kotkhai, are liable to be set aside as alleged ? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP 4. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation ? OPD 5. OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP 4. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation ? OPD 5. Relief.” 5.Considering the material on record, the trial Court came to the conclusion that plea of oral partition had been negatived by the revenue authorities vide orders dated 5.3.1998 and 21.9.1998 and as per the copy of the jamabandi Ext.P-3 for the year 1991, the land continued to be shown as joint inter se between the parties. The presumption of truth as envisaged under Section 45 of the H.P. Land Revenue Act was not rebutted by the plaintiff and the plaintiff could not prove that the oral partition had actually taken place between the predecessors-in-interest of the parties. The Court found the plaintiff’s witnesses, plaintiff himself (PW-1), Nand Lal (PW-2) and Roshan Lal (PW-3) to be evasive. The plaintiff’s plea of private partition, which allegedly took place in the month of January, 1980 stood contradicted by the record Ext.D-4. In terms of Ext.D-4 copy of mutation, Smt. Balnu transferred her share in favour of Gaya Nand vide Gift Deed dated 2.2.1980. The mutation order is dated 11.2.1981. She had transferred her share as an owner, therefore, in this background, the plea of private partition stood negatived by the record. 6.Ext.PA the memorandum reflecting the oral partition has been disbelieved by the Court for the reasons that the plaintiff’s witnesses have admitted that as on the date of the execution of Ext.PA, the land between the parties was joint. The submission of the learned Counsel for the appellant that Ext.PA only recorded the terms of the partition which had been acted upon, therefore, needs to be rejected. 7.The suit of the plaintiff was dismissed in terms of the judgment and decree dated 25.2.2003 which was assailed by the present appellant by way of Civil Appeal No. 18-S/13 of 05/03 before the District Judge (F), Shimla. Considering the material on record, the first appellate Court upheld the reasonings and the findings of the trial Court. Relying upon the statements of PW-2 and PW-3, the Court found that as on the date of the execution of memorandum by partition Ext.PA, the parties where in joint possession and consequently Ext.PA necessarily required to be registered. Considering the material on record, the first appellate Court upheld the reasonings and the findings of the trial Court. Relying upon the statements of PW-2 and PW-3, the Court found that as on the date of the execution of memorandum by partition Ext.PA, the parties where in joint possession and consequently Ext.PA necessarily required to be registered. Both the Courts below have concurrently held that the oral partition did not take place as pleaded by the plaintiff. 8.In my view, the plaintiff has failed to prove on record that any oral partition had actually taken place between the parties and there is no error in the findings returned by the Court below. The plea of oral partition was also considered by the revenue authorities and rejected. 9.In my view, no substantial question of law arises for consideration in the present appeal and the same is accordingly dismissed. M.R.B.———————