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2011 DIGILAW 1253 (HP)

Rirku Ram @ Rirku v. Krishna Devi

2011-03-14

DEEPAK GUPTA

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JUDGMENT Deepak Gupta, J. 1. This Regular Second Appeal is directed against the judgement and decree of the learned Additional District Judge, Solan camp at Nalagarh dated 17.11.1999 whereby he allowed the appeal and set-aside the judgement and decree passed by the learned trial Court. 2. Briefly stated the facts of the case are that appellant Rirku Ram filed a suit claiming that he alongwith defendants No. 1 and 2 Ramji Dass and Banarsi Dass was co-owner in possession of the suit land. He further alleged that a family arrangement was effected between the parties and consequent to the family arrangement all the parties took possession of their respective shares prior to 1967. Thereafter, in the year 1967 defendant No.2 Banarsi Dass filed an application for partition against the plaintiff and defendant No.1 in respect of the aforesaid land before the Assistant Collector st Grade, Nalagarh. An instrument of partition was prepared on 31.7.1967. Thereafter Rirku Ram also filed an application for partition and in that case the instrument of partition was prepared on 7.11.1967. According to the plaintiff the parties admitted each other to be owners of the land allotted to each of them and thereafter they continue in possession of the land falling to their respective shares. In fact, the parties sold portion(s) of their land without any objection or hindrance from any person and thereafter the two main defendants also sold some land to the other defendants. The suit was contested mainly by defendant No.1 and some of the other persons to whom portion of the land had been transferred. They claimed that no partition had taken place and contested the suit. The learned trial Court came to the conclusion that the suit land had been partitioned and all the parties were in exclusive possession of their shares. Appeal was filed by Ramji Dass, defendant No.1, only. This appeal has been allowed by the learned lower Appellate Court. He came to the conclusion that partition proceedings had in fact taken place in the year 1967. He further held that no execution petition was filed to enforce the partition order in the revenue record. He also held that the partition order had not been implemented since there no warrant of possession was issued showing that possession of the land had changed in terms of the partition. He further held that no execution petition was filed to enforce the partition order in the revenue record. He also held that the partition order had not been implemented since there no warrant of possession was issued showing that possession of the land had changed in terms of the partition. He, therefore, held that the partition order had not been implemented within three years and therefore the partition could not be implemented after so many years in view of Section 134 of the H.P.Land Revenue Act, which provides that an order of partition can be executed only within three years. 3. This appeal was admitted on the following question of law:- “What is the effect of the failure of any of the parties to obtain possession of the land allotted to it on partition within a period of three years?” 4. The learned Court below has in fact totally misdirected itself while deciding the case. In case, the partition proceedings are gone through, it is evident that parties had settled the matter and each of the parties admitted that they were in possession of the respective land falling to their shares. Once the parties were already in possession of the land falling to their shares there was no question of getting the order of partition executed. The question of execution of the partition order would arise only in case the possession of the land had to change hands. In this behalf reference may be made to Ext.P5, which is the order of the Collector dated 6.10.1967, wherein the Tehsildar accepted the mode of partition with minor amendments. Ext.P-6 is the instrument of partition and alongwith these two documents are the statements of the parties. The statement of Ramji Dass, who was the original contesting defendant, shows that initially he had made a statement that he does not accept the partition since the land in his possession were being handed over to Rirku. This statement was recorded on 6.9.1967. Thereafter, the revenue official again visited the spot on 6.10.1967 and on this date all the parties to the partition proceedings made a joint statement on oath that the Tehsildar had conducted partition on the spot which is acceptable to them and they all admitted that they are in possession of their respective shares as per the partition. 5. Thereafter, the revenue official again visited the spot on 6.10.1967 and on this date all the parties to the partition proceedings made a joint statement on oath that the Tehsildar had conducted partition on the spot which is acceptable to them and they all admitted that they are in possession of their respective shares as per the partition. 5. I am constrained to observe that the learned lower Appellate Court delivered a very long and detailed judgement but apparently did not read the order of the Collector and the statements annexed thereto which clearly show that the partition had been ordered respecting the possession of the parties. Therefore, no execution had to be filed. 6. In view of the above discussion, the question raised is answered in favour of the appellant and accordingly the appeal is accepted, the judgement and decree of the learned lower Appellate Court is set-aside and the judgement and decree of the learned trial Court is restored. No order as to costs.