JUDGMENT Mr. Paramjeet Singh, J.: - This regular second appeal preferred by plaintiff is directed against the judgment and decree dated 17.02.1987 passed by learned Sub Judge, IInd Class, Gurgaon whereby suit for possession by way of preemption filed by appellant-plaintiff has been dismissed and against the judgment and decree dated 21.09.1987 passed by learned Additional District Judge (II), Gurgaon whereby appeal preferred by appellant-plaintiff has also been dismissed. 2. For convenience sake, hereinafter, reference to parties is being made as per their status in the plaint. 3. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for possession by way of pre-emption with the averments that Kapura son of Rahim Khan was owner in possession to the extent of 1/4th share in the agricultural land measuring 8 kanals as detailed in para no.1 of the plaint. Said Kapura had sold the suit land to the defendants without the knowledge and notice of the plaintiff for ostensible sale consideration of Rs.13,000/-, vide registered sale deed dated 03.06.1983. It was further pleaded that suit land was under mortgage for a sum of Rs.1400/- and the said amount was adjusted in the sale consideration and sale price of Rs.3,000/- was added fictitiously in the sale deed. The plaintiff claimed his superior right to pre-empt the sale, being a co-sharer in the suit land. 4. Upon notice, defendants resisted the suit and filed written statement with the averments that 1/5th pre-emption amount was not deposited in time, suit was not within limitation and not maintainable in the present form. Suit is bad for partial pre-emption and is not properly valued for the purposes of court fee and jurisdiction. It was pleaded that sale consideration of Rs.13,000/- was fixed in good faith and actually paid to the vendor. Out of sale consideration, Rs.11,600/- were paid before the Sub Registrar at the time of registration of sale deed and Rs.1,400/- were adjusted as mortgage amount. The plaintiff was not admitted to be co-sharer in the suit land and his superior right to pre-empt the sale in dispute was specifically disputed. It was not disputed that suit land was under mortgage till then and it was redeemed by the defendants. 5. The plaintiff was not admitted to be co-sharer in the suit land and his superior right to pre-empt the sale in dispute was specifically disputed. It was not disputed that suit land was under mortgage till then and it was redeemed by the defendants. 5. On the basis of pleadings of parties, the Court of first instance framed following issues: “1. Whether the plaintiff has got a superior right of pre-emption in respect of the sale in dispute?OPP 2. Whether the sale consideration of Rs.13000/- was fixed in good faith and actually paid to the vendor?OPD 3. If issue no.2 is not proved, then what was the market value of the suit land on the date of sale?OPP 4. Whether the suit is not within limitation?OPD 5. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?OPD 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit has been wrongly filed, as alleged, if so, its effect?OPD 8. Whether the suit is bad for partial preemption? OPD 9. Whether the vendees/defendants are entitled to stamp and registration expenses, if so, to what amount?OPD 10. Whether the vendees/defendants have made improvements over the suit land, as alleged, if so to what extent and to what effect?OPD 11. Relief.” 6. After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has also been dismissed. Hence, this second appeal. 7. When the appeal was admitted, no substantial question of law was framed and the same was also not placed on record during the pendency of appeal. However, at the time of arguments, learned counsel for the appellant has raised following substantial question of law: “Whether the appellant-plaintiff is a co-sharer in the suit land and has a superior right of pre-emption and when the status of a co-sharer comes to an end in partition proceedings in view of provisions of the Punjab Land Revenue Act? 8. I have heard learned counsel for the parties and perused the record. 9. Learned counsel for the appellant-plaintiff has contended that findings recorded by both the courts below are against law and evidence on record. Admittedly, when the land was sold, it was joint and plaintiff was a co-sharer in it. 8. I have heard learned counsel for the parties and perused the record. 9. Learned counsel for the appellant-plaintiff has contended that findings recorded by both the courts below are against law and evidence on record. Admittedly, when the land was sold, it was joint and plaintiff was a co-sharer in it. Learned counsel further contended that lower Appellate Court has relied upon Naksha ‘Khe’ (Ex.D-2) prepared by the Assistant Collector Ist Grade and order dated 08.01.1987 (Ex.D-3) passed by the Assistant Collector Ist Grade, Ferozepur Jhirkha whereby objections against Naksha ‘Khe’ were heard and rejected and Naksha ‘Khe’ was accepted to hold that joint status of parties came to an end on 18.01.1987. Vide said order, it was directed that entries would take place after the crop of rabi 1987 and Naksha ‘Ge’ was called for 29.01.1987. However, the said order was set aside by the Collector, Ferozepur Jhirka vide order dated 17.08.1987 and case was remanded to the Assistant Collector Ist Grade, Ferozepur Jhirkha for considering objections on Naksha ‘Khe’. Learned counsel further contended that both the courts below are wrong to the effect that as and when application for partition is filed, joint status of the parties comes to an end. The said findings are against law and the provisions of the Punjab Land Revenue Act. In support of his contentions, learned counsel relied upon Pritam Singh vs. Jaskaur Singh 1993 (1) R.R.R. 390, Lal Chand (deceased) through the LRs vs. Ganga Ram (deceased) through its LRs 2005(1) Local Acts Reporter 521, Kehar Singh and others vs. Balbir Singh and others, [2010(5) Law Herald (P&H) 3929] : 2010 (4) R.C.R. (Civil) 21, Darbara Singh vs. Gurdial Singh 1994 (1) R.R.R. 459 and Harbans and another vs. Gurbaksh Singh 1985 R.R.R 255. 10. Per contra, learned senior counsel for the respondents-defendants while opposing the submissions of learned counsel for the appellant has contended that objections regarding Naksha ‘Khe’ were rejected and Naksha ‘Khe’ was accepted by the Assistant Collector-Ist Grade. With the sanction of Naksha ‘Khe’, partition is complete and thereafter only formalities are to be completed i.e. Naksha ‘Ge’ and instrument of partition are to be prepared. In support of his contentions, learned counsel relied upon Har Devi vs. Ram Jas and others 1974 PLJ 345. 11. I have considered the rival contentions of learned counsel for the parties. 12. In support of his contentions, learned counsel relied upon Har Devi vs. Ram Jas and others 1974 PLJ 345. 11. I have considered the rival contentions of learned counsel for the parties. 12. Admitted facts are to the effect that from the initial stage, plaintiff and the vendor were co-sharers. They filed an application for separation of the joint land. In the said application, Naksha ‘Khe’ (Ex.D-2) was prepared and objections were invited which were decided vide order (Ex.D-3) dated 08.01.1987. Feeling aggrieved against the order (Ex.D-3), appeal was preferred and order (Ex.D-3) was set side vide order dated 17.08.1987 which has been placed on record as Ex.C-1 before the lower Appellate Court. It means that objections regarding Naksha ‘Khe’ were again to be decided by the Assistant Collector Ist Grade. Since order dated 08.01.1987 (Ex.D-3) was set aside, it would mean that there was no partition and joint status of the parties continued. 13. It would be appropriate to refer to Sections 110 to 122 envisaged in Chapter IX of the Punjab Land Revenue Act, 1887 (in short “the 1887 Act”) which read as under: “110. Effect of partitions of estates and tenancies on joint liability for revenue and rent: - (1) A partition of land either under this Chapter or otherwise, shall not, without the express consent of the Financial Commissioner, affect the joint liability of land or of the land-owners thereof for the revenue payable in respect of the land, or operate to create a new estate, and, if any conditions are attached to that consent, those conditions shall be binding on the parties to the partition. (2) A partition of a tenancy shall not without the express consent of the landlord, affect the joint liability to the co-sharers therein for the payment of the rent thereof. 111. (2) A partition of a tenancy shall not without the express consent of the landlord, affect the joint liability to the co-sharers therein for the payment of the rent thereof. 111. Application for partition: -Any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue-officer for partition of his share in the land or tenancy, as the case may be, if- (a) at the date of the application the share is recorded under Chapter IV as belonging to him; or (b) his right to the share has been established by a decree which is still subsisting at the date; or (c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof. 112. Restriction and limitations on partition: - Notwithstanding anything in the last foregoing section— (1) places of worship and burial grounds held in common before partition shall continue to be so held after partition, unless the parties otherwise agree among themselves and record their agreement and file it with the Revenue-officer; (2) partition of any of the following properties, namely:— (a) any embankment, watercourse, well or tank, and any land on which the supply of water to any such work may depend; (b) any grazing ground; and (c) any land which is occupied as the site of a town or village and is assessed to land revenue; may be refused if, in the opinion of the revenue-officer, the partition of such property is likely to cause inconvenience to the co-shares, or other persons directly or indirectly interested therein, or to diminish the utility thereof to these persons; (3) the fact that a partition on the application of a joint owner of land would render necessary the severance into two or more parts of the land comprised in the tenancy of a tenant having a right of occupancy may, unless the tenant assents to the severance, be a sufficient reason for the disallowance of the partition in so far as it would affect that tenancy; and (4) the fact that the landlord objects to the partition of a tenancy may be sufficient reason for the absolute disallowance of the partition thereof. 113. 113. Notice of application for partition:-The Revenue-officer, on receiving the application under section 111, shall, if it is in order and not open to objection on the face of it, fix a day for the hearing thereof; and— (a) cause notice of the application and of the day so fixed to be served on such of the recorded co-shares as have not joined in the application, and, if the share of which partition is applied for is a share in a tenancy, on the landlord also; and (b) if he thinks fit, cause the notice to be served on or proclaimed for the information of any other persons whom he may deem to be directly or indirectly interested in the application. 114. Addition of parties to application: - XXXXX 115. Absolute disallowance of partition: -After examining such of the co-shares and other persons as may be present on that day, the Revenue-officer may, if he is of opinion that there is good and sufficient cause why partition should be absolutely disallowed, refuse the application, recording the grounds of his refusal. 115-A. Settlement of disputes by conciliation.- (1) Where it appears to the Revenue Officer that a settlement may be acceptable to both the parties to the partition, he shall formulate the terms of settlement and submit the same to the parties for their suggestions. After receiving their objections or suggestions, the Revenue Officer, shall reformulate the terms of settlement, possible in the prevailing situation, and refer the same for conciliation with the intervention of the elders where the property is situated; and if the settlement is agreed upon by both the parties through a written deed, the Revenue Officer shall pass an order in accordance with such deed. The orders so made by the Revenue Officer shall be final, and partition deed shall be issued accordingly. (2) If no settlement is reached under sub-section (1), the Revenue Officer shall within a period of four months after the date of making reference for conciliation, but not later than six months from the date of initiation of conciliatory proceedings, pass such order on merits, as he may deem appropriate in the circumstances of the case after hearing the parties. 116. 116. Procedure for admission of application: -If the Revenue-officer, does not refuse the application under the last foregoing section, he shall ascertain the question, if any, in dispute between any of the persons interested distinguishing between— (a) question as to title in the property of which partition is sought; and (b) questions as to the property to be divided, or the mode of making the partition. 117. Disposal of questions as to title in property to be divided: - (1) When there is a question as to title in any of the property of which partition is sought, the Revenue-officer may decline to grant the application of partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court. (2) When the Revenue-officer himself proceeds to determine the question, the following rules shall apply, namely;— (a) If the question is one over which a Revenue Court has jurisdiction, the Revenue-officer shall proceed as a Revenue Court under the provisions of the Punjab Tenancy Act, 1887. (b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue-officer shall be that applicable to the trial of an original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein. (c) An appeal shall lie from the decree of the Revenue-officer under clause (b) as though that decree were a decree of a Subordinate Judge in an original suit. (d) Upon such an appeal being made, the District Court, or High Court, as the case may be, may issue an injunction to the Revenue-officer requiring him to stay proceeding pending the disposal of the appeal. (e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force. 118. Disposal of other question: -(1) When there is a question as to property to be divided, or the mode of making a partition, the Revenue-officer shall, after, such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision. 118. Disposal of other question: -(1) When there is a question as to property to be divided, or the mode of making a partition, the Revenue-officer shall, after, such inquiry as he deems necessary, record an order stating his decision on the question and his reasons for the decision. (2) An appeal may be preferred from an order under subsection (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the revenue-officer by the authority to whom the appeal has been preferred the Revenue-officer shall stay proceeding pending the disposal of the appeal. (3) If the applicant for partition is dissatisfied with the original or appellate order under this section, and applies for permission to withdraw from the proceeding in so far as they relate to the partition of his shares, he shall be permitted to withdraw there from on such terms as the Revenue-officer thinks fit. (4) When an applicant withdraws under the last foregoing sub-section, the revenue-officer may, where the other applicants if any desire the continuance of the proceeding, continue them in so far they relate to the partition of the shares of those other applicants. 119. Administration of property excluded from partition: - When any such property as is referred to in section 112, clause (2), is excluded from partition, the Revenue-officer may determine the extent and manner to and in which the co-sharer and other persons interested therein may make use thereof, and the proportion in which the expenditure incurred thereon and profits derived there from, respectively, and to be borne by and divided among those persons or any of them. 120. Distribution of revenue and rent after partition: - (1) The amount of revenue to be paid in respect of each of the holdings into which land has been divided on a partition, and the amount of rent to be paid in respect of each of the portions into which a tenancy has been so divided, shall be determined by the Revenue-officer making the partition. (2) The determination of the Revenue-officer, as to the revenue to be paid in respect of each holding, shall, where the estate in which the holding is situate is subject to a fixed assessment, be deemed to be an order under section 56, sub-section (1). (2) The determination of the Revenue-officer, as to the revenue to be paid in respect of each holding, shall, where the estate in which the holding is situate is subject to a fixed assessment, be deemed to be an order under section 56, sub-section (1). (3) Where new estates have been created at the partition and the land-revenue has been fraudulently or erroneously distributed among them, the State Government, may, within twelve years from the time of the discovery of the fraud or error, order a new distribution of the land revenue among the several estates on an estimate of the assets of each estate at the time of the partition, to be made conformably to the best evidence and information procurable respecting the same. 121. Instrument of partition: - When a 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. 122. Delivery of possession of property allotted, on partition: - An owner or tenant to whom any land or portion of tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives, and a revenue-officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.” 14. Perusal of above reveals that Section 111 of the 1887 Act refers to filing of application for partition, Section 112 refers to restriction and limitations on the partition, Section 113 refers to notice of application for partition to the other co-sharers and objections filed against partition, Section 115 refers to absolute disallowance of partition, Section 115-A refers to settlement of disputes by conciliation, Section 116 refers to procedure for admission of application, Section 117 deals with disposal of questions as to title in property to be divided, Section 118 deals with disposal of other questions, Section 119 deals with administration of property excluded from partition, Section 120 provides for distribution of revenue and rent after partition, Section 121 provides for instrument of partition and Section 122 deals with delivery of possession of property allotted, on partition. 15. In the context of the above provisions, now it is to be seen as to when the partition becomes complete. 16. Section 116 of the 1887 Act specifically deals with the procedure for admission of the application for partition. At that stage, the revenue officer may refuse to proceed with the application of partition or may continue with the application and if the revenue officer comes to a conclusion that question as to title is involved qua any of the property of which partition is sought, the revenue court can, itself, decide the question of title in the property to be divided under Section 117 of the 1887 Act or it may refer the parties to the civil court for adjudication of the question of title. If the revenue officer proceeds with the application for partition, he will call for ‘Naksha Alf’ and thereafter parties will be at liberty to file objections. ‘Naksha Alf’ only refers to the share of parties, land in their possession and excess or deficiency is to be made good. Thereafter, ‘Tarika Takseem’ (mode of partition) in which manner land is to be partitioned, is prepared and statements of parties are recorded and mode of partition is approved. Against that, appeal can also be filed. Thereafter Naksha ‘Khe’ is called regarding which objections are invited. After decision of objections to Naksha ‘Khe’, the same is approved and all the co-sharers are identified to be possessing the particular area on completion of partition. Against that, appeal can also be filed. Thereafter Naksha ‘Khe’ is called regarding which objections are invited. After decision of objections to Naksha ‘Khe’, the same is approved and all the co-sharers are identified to be possessing the particular area on completion of partition. Thereafter Naksha ‘Zeem’ is called and instrument of partition is prepared under Section 121 of the 1887 Act. A plain reading of Section 121 of the 1887 Act makes it clear that instrument of partition is to be prepared after the partition has been completed which means that the partition would only be complete, once the distribution of revenue, rent etc. are determined under Section 120 of the 1887 Act. The same are carried out on calling of Naksha ‘Ge which is also known as Naksha ‘Zeem’. The joint status of the parties virtually comes to an end on passing of ‘Naksha Zeem’, but the partition would not be effected in absence of instrument of partition. 17. Preparation of instrument of partition is not a mere formality rather is necessary document to make partition legal and effective. The date on which partition is to take effect is indicated in the instrument of partition, the possession is to be delivered on or after the date fixed in the instrument of partition. The possession even if delivered to the parties before the partition is made effective, will not extinguish the status as co-sharer. Prior to that, mere possession of co-sharer in separate portion also does not extinguish the status of joint ownership. It is the instrument of partition which is a step towards execution of order of partition and it is not appealable. In fact, the wording of Section 121 of the 1887, Act says that instrument is to be prepared after completion of partition. It means that partition is completed when Naksha ‘Zeem’ is called and approved. Separation of jointness in status will come into force with the delivery of possession as per the date fixed in the instrument of partition. In this regard, reliance can be placed upon Pritam Singh’s case (supra), wherein, it has been held as under: “8. The term “completion of partition proceedings” appearing in Section 121 of the Act says that 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 recorded therein. The term “completion of partition proceedings” appearing in Section 121 of the Act says that 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 recorded therein. The plain reading of Section 121 provides that instrument of partition is to be prepared after, the partition had been completed which means that once the distribution of revenue, rent etc. had been determined under Section 120 of the said Act, partition is complete. The joint status of the parties comes to end once partition order has been passed. Partition is not effective in the absence of instrument of partition. No severance of status of co-sharers takes place in the absence of instrument of partition and delivery of possession of the allotted portion of joint land to parties. The term “completion of partition proceedings” as mentioned in Section 121 of the Act came up for interpretation in Hadayat Khan and Ors. v. Shahamand, A.I.R. 1924 Lah. 155, wherein it was held thus :— “It means simply that all disputes raised before the Revenue Officer had been decided by him but to that date the joint estates remained joint The parties had not been even inducted into the separate shares which it was proposed to allot to them under the scheme of any partition and apparently no formal order of that kind was ever passed. After appeals to the Settlement Officer and applications for revision to the Financial Commissioner had been rejected the Revenue Officer gave orders for the drawing up of the deed of partition and the deed of partition was accordingly drawn up on the 1st December, 1905, and in obedience to the provisions of Section 121 of the Land Revenue Act it was provided in that deed that the partition should take effect from Kharif 1905. It is, of course, quite possible that a partition should be made, and possession of the several lots be given and taken and that no formal instrument of partition be prepared, in which case no doubt the giving and taking of possession by the several shares of their several lots would be held to be the date on which the joint holding ceased to be joint and became severalty. The present, however, is not such a case. The present, however, is not such a case. There was no doubt proceedings taken with a view to effect partition long before Kharif, 1905, but those proceedings culminated and found their ultimate result and expression in the instrument of partition, and that instrument provided that the land should remain joint up to Kharif 1905, and become severalty “only in that harvest. From this it follows that even if the sharers took possession of the plots allotted to them before Kharif 1905 their possession upto that date was merely the possession of co-sharers in separate possession of portions of the joint estate.” 9. The right to partition flows from the notion of individual ownership of property. The right is one of the ordinary legal incidents of joint ownership. It is merely an arrangement whereby co-owners having an undivided interest in one or many properties take by arrangement specific property in lieu of their shares in all. Section III of the Act provides that any of the joint owners, or a person having a decree for partition or any written acknowledgment of the right is competent to apply for partition. On receiving the application the Revenue Assistant will summon all the interested parties, shareholders and legal heirs of the deceased shareholder according to the procedure prescribed by Section 20 of the Act. After the summoning is complete any of the co-sharer or co sharers who have been joined as respondent may file an application for separating his share in the joint holding. A co-sharer can file objections as mentioned in Section 112 of the Act. If the objection is regarding the question of title, the Revenue Officer is at liberty to decide such question himself or direct the parties to get it decided from the civil court and stop the partition proceedings until such question of title is decided. If the Revenue Officer comes to the conclusion, that there is no question of title involved, he will ask the Patwari to prepare a map of the land to be. partitioned and share of the persons asking partition, popularly known as ‘Naksha Alf’. This Naksha Alf contains the details of the possession of the co-sharer asking for partition, excess or less area cultivated by that co-sharer. On receipt of Naksha Alf the Revenue Officer shall ask the parties to file objections to it. partitioned and share of the persons asking partition, popularly known as ‘Naksha Alf’. This Naksha Alf contains the details of the possession of the co-sharer asking for partition, excess or less area cultivated by that co-sharer. On receipt of Naksha Alf the Revenue Officer shall ask the parties to file objections to it. After disposing of those objections he will frame the mode of partition. Any of the parties to the partition proceedings can challenge the mode of partition decided by the Revenue Officer in appeal under Section 118(2). If the mode of partition is not challenged it becomes finality. The Revenue Officer shall ask the Patwari to get the shares separated of the joint owners. According to the mode of partition, the Patwari prepares the map, which is popularly called “Naksha Be”. Any party aggrieved against “Naksha Be” can challenge it in appeal on the ground that it was not prepared according to the mode of partition. When “Naksha Be” becomes final or is agreed to by the parties, it is deemed to be sanctioned. The order of sanction is popularly known as “Naksha Jeem”’. The order is communicated to the Patwari, Kanungo and the parties. After the expiry of period of limitation, instrument of partition is drawn on the stamp paper by the Revenue Officer. It is to be specified therein as to from which harvest partition will be effective and till then the status is joint. The Revenue Officer puts the parties in possession according to the instrument of partition within three years from the date of its preparation. In the instant case, no instrument of partition was drawn and hence there was no severance of status. 18. In Pritam Singh’s case (supra), the judgment of this Court rendered in Har Devi’s case (supra) has been considered. Besides this, there are other judgments which also deal with similar situation. Even if for the sake of arguments, it is considered that Naksha ‘Khe’ is a document whereby partition is completed, in the present case, Naksha ‘Khe’ was set aside vide order dated 17.08.1987 (Ex.C-1), meaning thereby Naksha ‘Khe’ is yet to be approved. It means there is no partition till date. 19. In view of above, it is held that plaintiff continued to be co-sharer and his joint status has not been separated even on the date of decree passed by the Court of first instance. It means there is no partition till date. 19. In view of above, it is held that plaintiff continued to be co-sharer and his joint status has not been separated even on the date of decree passed by the Court of first instance. The aforesaid substantial question is answered accordingly. 20. Consequently, appeal is allowed with costs throughout, impugned judgments and decrees are set aside, suit of plaintiff is decreed and the plaintiff is held entitled for possession of the suit land by way of pre-emption. Decree-sheet be prepared accordingly. ---------0.B.S.0------------ —————————