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2012 DIGILAW 43 (HP)

Khima Ram v. Mast Ram

2012-01-13

RAJIV SHARMA

body2012
JUDGEMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 6.12.2008 rendered by the learned District Judge, Mandi in Civil Appeal No.40 of 2008. 2.Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for permanent prohibitory and mandatory injunction against the respondents-defendants (hereinafter referred to as ‘defendants for convenience sake). According to the averments made in the plaint, land comprised in Khata Khatauni No. 94/122, khasra No. 28 measuring 0-3-0 bighas situated in Mauja Siyanh, Tehsil Sadar, District Mandi, is recorded in the ownership of the plaintiff, defendants and other co-sharers and the land comprised in Khata Khatauni No. 93/122, Khasra No. 29 measuring 0-4-9 bighas situated in Mauza Siyanh/232, Tehsil Sadar, District Mandi, is recorded in the ownership and possession of plaintiff, predecessor-in-interest of defendants and one other co-sharer, i.e. Chand. The suit land is by the side of Tawan - Kummi road, on which the old house of the parties and other co-sharers is situated consisting of 12 room and the sisters of the plaintiff and predecessor-in-interest of the defendants were married. They are not in physical possession of the land comprised in Khasra No. 28. According to the averments contained in the plaint all the three brothers, namely, Garib Dass, Khima Ram and Chand Ram are living separately for the last 30 years and possessing four rooms each. Chand Ram got separated his share measuring 0-0-18 bighas out of khasra No.28. Thereafter the plaintiff and predecessor-in-interest of defendants also mutually agreed to do the private partition among themselves and in the family partition, the land comprised in Khasra No. 28/2/1 measuring 0-1-1 bighas was allotted to Garib Dass whereas Khasra No. 28/2/2 plus share in Khasra No. 29 of Garib Dass was allotted to Khima Ram because Garib Dass has taken one Karam more land by the side of road in Khasra No.28. Legal heirs of Larju Devi were added with Garib Dass and legal heirs of Karju Devi were added with Khima Ram. After the partition, the plaintiff is owner in possession of Khasra No. 28/2/2 alongwith legal heirs Smt. Karju Devi and Khasra No. 29 is jointly owned and possessed by the plaintiff alongwith Chand Ram and defendants. Legal heirs of Larju Devi were added with Garib Dass and legal heirs of Karju Devi were added with Khima Ram. After the partition, the plaintiff is owner in possession of Khasra No. 28/2/2 alongwith legal heirs Smt. Karju Devi and Khasra No. 29 is jointly owned and possessed by the plaintiff alongwith Chand Ram and defendants. The rooms which have fallen in the share of plaintiff over khasra No. 28/2/2 and Khasra No. 29 are in a dilapidated condition. He wants to reconstruct the same. The defendants are obstructing him. He requested them time and again but the defendants paid no heed to his request. It is in these circumstances he has filed the suit restraining the defendants by way of permanent prohibitory injunction from causing any interference over the suit land. 3.The suit was contested by the defendants by filing written statement. It is alleged that the private partition has taken place, which was not admitted by the parties and as such mutation of private partition which was entered between the parties bearing No. 552 and 546 was got cancelled on 17.10.2005 and thereafter the parties are living jointly. It is denied that Garib Dass allotted to the plaintiff one Karam more land over khasra No. 29. It is further stated that the plaintiff himself has not agreed with the private partition and as such he is estopped by his act and conduct to file the suit. It is denied that the plaintiff is the owner in possession of Khasra No. 28/2/2 alongwith legal heirs of Karju Devi and Khasra No. 29 is in the joint ownership and possession of plaintiff alongwith Chand. It is further stated that the defendants are co-sharers to the extent of their share in Khasra No. 29. It is denied that the rooms in the share of plaintiff are in a dilapidated condition in Khasra No. 28/2/2 and Khasra No. 29. It is further stated that the house is in the shape of a big house consisting of 12 rooms and is in the use and occupation of three brothers, namely, Garib Dass, predecessor-in-interest of plaintiff and defendants and is a pucca cemented slab roof house. In case the construction is carried out by the plaintiff then it will damage the house. 4.Plaintiff filed replication. In case the construction is carried out by the plaintiff then it will damage the house. 4.Plaintiff filed replication. He has stated that the private partition, which was entered into between the parties bearing No. 552 and 546, was not cancelled on 17.10.2005. Issues were framed by the learned Civil Judge (Junior Division) on 30.4.2007. Learned Civil Judge (Junior Division) decreed the suit on 8.4.2008. The defendants were restrained from making interference over the land comprised in Khasra No. 29 and Khasra No. 28/2/2. However, the plaintiff cannot not raise any construction, due to which the lateral support of the house consisting of 12 rooms existing over Khasra No.28 and 29, is damaged. Defendants preferred an appeal before the learned District Judge, Mndi. He allowed the same on 6.12.2008 and set aside the judgment and decree dated 8.4.2008 passed by the Civil Judge (Junior Division). Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law:1.Whether the learned lower appellate court could have made an entirely different case in favour of the defendants/respondents which was neither set up in the written statement nor in the grounds of appeal before it? 2. Whether the learned lower appellate court erred in invoking the provisions of Transfer of Property Act as also the Registration Act which were not at all applicable to the facts of the present case? 3. Whether the learned lower appellate court was required to discuss in detail the judgment and decree passed by the learned trial court and give his reasons in disagreeing with the same rather than writing a separate judgment? 4. Whether the finding recorded by the learned lower appellate court with respect to their being no partition amongst the parties, is perverse and based on misreading of oral and documentary evidence particularly statements of DW-1 to DW-3 who in their statements have clearly admitted the factum of partition? 5. Mr. Tarlok Chauhan has supported the judgment and decree passed by the Civil Judge (Junior Division). According to him, the appellate court has erred in law by invoking the provisions of Transfer of Property Act. He has further argued that the learned first appellate court has not correctly appreciated the oral as well as documentary evidence. According to him, the partition has taken place and the mutation was also attested and the parties are bound by the same. 6.Mr. He has further argued that the learned first appellate court has not correctly appreciated the oral as well as documentary evidence. According to him, the partition has taken place and the mutation was also attested and the parties are bound by the same. 6.Mr. J.L. Bhardwaj has supported the judgment and decree passed by the first appellate court. 7.I have heard the learned counsel for the parties and have perused the records carefully. 8.Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9.Plaintiff has appeared as PW-1. He has led his evidence by way of affidavit Ex.PW-1/A. According to the averments contained in affidavit Ex.PW-1/A, Khasra No. 29 measuring 0-4-9 bighas and Khasra No. 28 measuring 0-3-0 bighas are in the ownership and possession of plaintiff, Garib Dass and other co-owners in the revenue record. It is further stated that all the co-owners are real brothers and their sisters have been married 50 years ago and they are not in possession of the suit land. The house comprised of 12 rooms. The three brothers are residing separately since 30 years and each brother is in possession of four rooms each. The family partition took place inter se the parties and in family partition, Khasra No. 28/2/1 was allotted to Garib Dass and Khasra No. 28/2/2 was allotted to the plaintiff. Share of Garib Dass in Khasra No. 29 was also allotted to the plaintiff since Garib Dass had taken excess land qua his share in the family partition in khasra No. 28. The family partition was presented before the Tehsildar and after inquiry; Tehsildar has sanctioned mutation in the month of October, 2005. In his cross-examination, PW- 1 has deposed that the house consists of 12 rooms. It has fallen in the share of three brothers and each brother is having equal share. He has further stated that the house is Kucha. He has suggested it to be correct that 12 rooms are slab roof and are 50-60 years old. He has also suggested it to be correct that the house is two storeyed but it is Kucha house. He has further stated that family partition has taken place in 2005. He has suggested it to be incorrect that Garib Dass has given application that the suit property should not be partitioned. He has also suggested it to be correct that the house is two storeyed but it is Kucha house. He has further stated that family partition has taken place in 2005. He has suggested it to be incorrect that Garib Dass has given application that the suit property should not be partitioned. He has suggested it to be incorrect that the mutation of partition was attested by them in collusion with the revenue department. 10. PW-1 Gopal Singh has tendered his evidence by way of affidavit Ex.PW-2/A. It is stated that the old house is situated over the suit property. He went to Nalwar and Khima Ram and Garib Dass were present in Nalwar Patwar Khana. According to him, the parties in family partition have partitioned the suit property.In cross-examination, he suggested it to be incorrect that Garib Dass has objected to the partition. He did not know the measurement of khasra Nos. 28 and 29. 11. DW- 1 Mast Ram has stated that the name of his father was Garib Dass. Khima Ram and Chand Ram are real brothers of his father. Chand Ram is alive. The house is old and situated in khasra Nos. 28 and 29. His father has died. He has three brothers. The house is situated over the suit property comprised of two storey building having 12 rooms. Each brother has been allotted four rooms. The house is in a dilapidated condition. He did not know about the family partition. He has further stated that if the plaintiff succeeds in demolishing his house, house in possession of defendants will be materially damaged. He has tendered in evidence Ex.DA, Ex.DB, Ex. DC and Ex.DD. In his cross-examination, he has stated that he did not know how much is the total land and over which portion of land the house is existing. According to him, the suit land has been partitioned for the purpose of cultivation between their ancestors about 20-22 years back, however, the land is still joint in revenue papers. He has constructed separate house over khasra No. 28 about 10 years back, which is adjoining to the road. He has suggested it to be correct that Khasra No. 28 is adjoining to the road and Khasra No. 29 is behind Khasra No. 28. He has admitted to be correct that Chand has got separated his share from Khasra No.28. 12. He has suggested it to be correct that Khasra No. 28 is adjoining to the road and Khasra No. 29 is behind Khasra No. 28. He has admitted to be correct that Chand has got separated his share from Khasra No.28. 12. DW-2 Dalu has testified that the house was existed over the suit land comprising of 12 rooms. It is cemented house. The house is existing over the joint land of the parties alongwith Chand. In his cross-examination he has stated that the parties are living separately since 10-12 years. He suggested it to be correct that defendant Mast Ram has constructed his separate house over the suit land and son of the plaintiff has also constructed his house. 13. DW-3 Chand Ram has deposed that the house consisted of 12 rooms. It is slab-roofed house. According to him, they are three brothers and four rooms have fallen into the share of each brother. He has stated that the rooms which have fallen into the share of the plaintiff are not in a dilapidated condition. If the plaintiff demolishes his share then the whole of the house will fall down. In his cross- examination, he suggested it to be incorrect that all brothers are living separately since 10-15 years. He suggested it to be correct that he has constructed his house over Khasra No.28. He further stated that Khub Ram and Garib Dass have also separated their share and Mast Ram has constructed his house over the suit land. 14. The plaintiff has also tendered in evidence Ex.PA, copy of jamabandi for the year 1996-97, Ex.PC, copy of jamabandi for the year 1996-97, Ex.PD, copy of mutation and statement of Garib Dass mark ‘X’. The defendants have also tendered in evidence copy of mutation No. 544 Ex.DB and copy of mutation No.500 Ex.DC. According to the plaintiff, Garib Dass had submitted an application for partition of the land to the Patwari. According to the revenue record, Gair Mumkin building has been recorded on khasra Nos. 28 and 29. According to the plaintiff, the partition has taken place on the basis of application submitted by Garib Dass whereby Khasra No. 28/2/1 came in the share of predecessor-in-interest of defendants, Sh. Garib Dass and Khasra No. 28/2/2 and share in Khasra No. 29 was given to him. 28 and 29. According to the plaintiff, the partition has taken place on the basis of application submitted by Garib Dass whereby Khasra No. 28/2/1 came in the share of predecessor-in-interest of defendants, Sh. Garib Dass and Khasra No. 28/2/2 and share in Khasra No. 29 was given to him. The legal heirs of Larju were added with Garib Dass and legal heirs of Karju were added with Khima Ram. It is evident from the statements of all the witnesses that the house comprises of 12 rooms. All the three brothers were given four rooms each. The plaintiff has not placed any deed on the basis of which the partition has taken place. The plaintiff has not placed on record any site plan and the report of the expert that the construction of the plaintiff will not materially affect other portions of the building in possession of the defendant. It has come in the statements of DW- 1 and DW-3 that in case the house is permitted to be constructed by the plaintiff, it will damage the house, which is in their possession. 15. Case of the plaintiff, in a nutshell, as noticed above, is that the revenue officer has partitioned the suit land on the basis of application submitted by Garib Dass and thereafter the mutation was attested by the Tehsildar. There is a detailed procedure prescribed under the Himachal Pradesh Land Revenue Act (hereinafter referred to as the ‘Act’ for brevity sake) the manner in which any joint owner of land or any joint tenant of a tenancy has to submit an application for partition to the Revenue Officer according to section 123. The Revenue Officer for the purpose of Chapter-IX of the Act is the Assistant Collector of 1st Grade. There are restrictions and limitations on partition as per section 124 of the Act. According to section 124 (2) (c) of the Act, the Revenue Officer may refuse the partition of any land, which is occupied as the site of a town or village and is assessed to land revenue. The procedure on admission of application is provided under section 128 of the Act. Section 135 deals with affirmation of partition privately affected. It is stipulated therein that in case a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. The procedure on admission of application is provided under section 128 of the Act. Section 135 deals with affirmation of partition privately affected. It is stipulated therein that in case a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. The plaintiff has not placed any partition deed on record. The learned first appellate court has come to a conclusion that as per revenue record, Gair Mumkin building has been recorded in khasra Nos. 28 and 29. The revenue agency could not carry out the partition. In the instant case, the application according to the plaintiff was submitted to the Patwari. Patwari was not competent to carry out the partition, particularly when the description of the property was ‘building’ in the revenue record. 16. According to para 453 of the Punjab Land Administration Manual, the village site, unless in the very rare case of its being assessed to land revenue, cannot be partitioned under the Land Revenue Act. 17. In Manji versus Ghulam Muhammad and others, AIR 1921 Lahore 157, learned Single Judge has held that the revenue authority has jurisdiction only of the agriculture land and has no jurisdiction with respect of abadi land. 18. In Rameshwar Nath versus Jageshwar Nath and others, AIR 1953 Punjab 250, learned Single Judge has held that Punjab Land Revenue Act does not exclude the civil court jurisdiction in which shops and factory have been built. Learned Single Judge has held as under: “10. Counsel next referred to S.111 of the Punjab Land Revenue Act which provides for an application being made to a Revenue Officer by any joint owner for partition of his share in the land. Section 120 of the Act is a provision for distribution of revenue and rent after partition. Section 141 which is to a certain extent helpful in solving the problem before us provides that orders of Civil or Criminal, Courts for the attachment of land shall be addressed to the Collector. Section 120 of the Act is a provision for distribution of revenue and rent after partition. Section 141 which is to a certain extent helpful in solving the problem before us provides that orders of Civil or Criminal, Courts for the attachment of land shall be addressed to the Collector. Section 158 (2) (xvii) and (xviii) is as follows: 158 (2) A civil court shall not exercise jurisdiction over any of the following matters, namely, (xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for partition, not being a question as to little in any of the property of which partition is sought. (xviii) any question as to the allotment of land on the partition of an estate, holding or tenancy or as to the distribution of land subject by established custom to periodical redistribution, of land, or as to the distribution of rent on the partition of a tenancy. But there is nothing in these sections to show that lands, although assessed to land revenue, on which buildings have been put up are to be excluded from the jurisdiction of civil courts. 15. I am, therefore, of the opinion that (1) it was not open to the defendants to raise the objection as to the jurisdiction of the civil courts because they had agreed that this was not an estate assessed to revenue payable to the Government within the meaning of section 54 when by the consent of parties only those properties were excluded from partition by the Commissioner which were agricultural lands and the rest were specifically agreed to be partitioned by the Commissioner, (2) the words ‘estate assessed to the payment of revenue to the Government” do not cover lands which have been built upon and have become houses or factories and (3) the Punjab Land Revenue Act does not exclude the jurisdiction of civil courts in regard to the properties which are in dispute in the present case, i.e. lands on which houses, shops and factories have been built.” 19. In Sucha Singh and others versus Balbir Singh and others, 1964 PLJ 160, learned Single Judge has held that where joint properties are of two kinds, their division has to be in two forums, i.e. with regard to non-agricultural property, the division has to be made by the Civil Courts and with regard to agricultural property, the division has to be made by the Revenue Court. Learned Single Judge has held as under: “3. So far as the first contention is concerned, namely, that no suit for partial partition lies, it has no merit. Land which is part of an estate cannot be partitioned by a civil court vide section 158 (2) of the Land Revenue Act. The mere fact that part of the property of joint owners is not agricultural property and with regard to it relief is necessarily to be obtained in civil courts will not lay open the plea of partial partition to the defendants. The joint properties are of two kinds and, therefore, their division has to be in two forums i.e. with regard to non­agricultural property the division has to be made by the civil courts and with regard to agricultural property the division has to be made by the revenue courts. In this view of the matter there is no merit in the first contention either.” 20. In Pritam Singh and another versus Rup Lal and other, 1986 PLJ 583, learned Single Judge has held that when jamabandi shows the land as gair-mumkin and not used for agricultural purposes, it cannot be said that civil court has no jurisdiction. Learned Single Judge has held as under: “6. I have given due consideration to the argument and find substance therein. It is not disputed that the property is situated within the town of Moga. It is common knowledge that the towns are extending and the lands are being purchased for residential purposes. In the present case, the land is shown as ghair-mumkin in the jamabandi for the year 1969-70 Exhibit P.3. It is thus clear that the land was not being used for agricultural purposes. In the circumstances, it could not be said that the Civil Court had no jurisdiction to try the suit and the plaintiff could file an application for partition before the Revenue Officer. 7. It is thus clear that the land was not being used for agricultural purposes. In the circumstances, it could not be said that the Civil Court had no jurisdiction to try the suit and the plaintiff could file an application for partition before the Revenue Officer. 7. For the aforesaid reasons, I accept the revision petition, set aside the judgment of the learned Additional District Judge and direct him to decide the matter afresh on merits after hearing the parties. 8. I have been informed that the plaintiff has filed an application for partition.In view of the aforesaid circumstances, the application for partition cannot continue. Mr. Khunger has stated that his clients will withdraw that application. The parties are directed to appear before Mr. A.S.Sodhi, Additional District Judge, Faridkot, on 6.10.1986. No order as to costs.” 21.The Division Bench of Punjab and Haryana High Court in Fauja Singh versus Pritam Singh and another, 1993 (2) PLR 335 has held that if the land is abadi and does not fall under the definition of land, the revenue authorities have no jurisdiction to partition the same. 22. In the instant case, in all the revenue records placed on record, the property has been shown as gair mumkin and this is not agriculture land and thus could not be partitioned by the revenue authorities. It could only be partitioned by the civil court. Since the first appellate court has rightly come to the conclusion that the suit property being building could not be partitioned, the other question whether it was required to be registered or not, is not required to be gone into. 23. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the present Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.