Jammu & Kashmir High Court
Daulat Ram & Anr. vs Roop Chand & Ors. on 19 September, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CFA NO. 22/2013, IA NO. 30/2013
c/w
OWP No. 1798/2015, IA NO. 01/2015
Date of Order: 17th September, 2018.
Daulat Ram & Anr.
Vs.
Roop Chand & Ors.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): None.
For the Respondent(s): Mr. Rohit Kohli, Advocate.
Mr. R.K. Jain, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. These two petitions raise akin and analogues issues and have, therefore, been clubbed together for determination and decision. At the threshold, the facts, as these emerge from the study of both the petitions, require to be delineated.
CIA No. 22/201302. In this appeal, the appellants have assailed the judgement and decree dated 30th April, 2013 passed by the learned District Judge, Reasi, in the Civil suit titled "Daulat Ram & Anr Vs. Roop Chand & Ors.", whereby the suit of the appellants has been dismissed on the ground that CIA No. 22/2013 c/w OWP No. 1798/2015 Page 1 of 14 the appellants have failed to prove the oral partition interse Bijhan and Nathu during their life time as also the claim of adverse possession qua the suit property.
03. The substratum of the appeal is that the appellants have proved their ownership rights and possession viz-a-viz the suit property, but the trial court misread the statement of the Patwari and passed the judgement and decree, which is liable to be set aside. Nathu and Bhijan had during their life time by way of a private settlement, partitioned their property and got the possession of their respective shares. In this partition, Bhijan got the possession of the land held by Nathu and vice-versa. However, the trial court failed to consider the effect of the oral partition between the two brothers named above and passed the judgement and decree. The trial Court has failed to consider the affidavits filed by the Appellants in support of their claim. It also failed to consider the mutation relied upon by the appellants to prove their ownership and possession over the suit land. The finding returned by the learned trial Court that there is no partition is illegal and contrary to the law. The respondent Nos. 1 to 7 have derived their title through Nathu. While filing the suit, the appellants sought a declaration that the sale deed dated 29th of September, 2006 and executed on 1st September, 2006 by defendants Nos. 1 to 07 through defendant No.8 in favour of the defendants Nos. 9 to 11 vis-à-vis the suit land is null and void in view of the fact that the land situated at village Kundrodian, is owned and possessed by the plaintiffs. The appellants, also took the plea that they have become the owners by adverse possession and as such, possessed a better title as against the others including the defendants, but the Court below gailed to appreciate the facts and the law governing the subject in the right perspective and passed CIA No. 22/2013 c/w OWP No. 1798/2015 Page 2 of 14 the judgment and decree which on the face of it is bad, perverse and dehors the law.
OWP No. 178/201504. In this petition the petitioners (appellants in the CIA) have pleaded that their grandfather Bijhan and Late Nathu were real brothers. They were the owners of the land situated at village Kundrodian, Tehsil Katri and village Sarnah, Tehsil Reasi. Both the brothers mutually decided and agreed that the land possessed by Bijhan in village Kundrodian would be held by and remain in the possession of the elder brother Bijhan, whereas the land situated at Sarnah, Tehsil Reasi will be held by and remain in the possession of Nathu. In this way both the brothers Bijhan and Nathu had privately divided and partitioned the land amongst themselves. On the demise of Bijhan the mutation of inheritance was attested in favour of Nek Ram & Ors i.e. the legal heirs of Bijhan vis-a-vis the land situated at Kundrodian Tehsil Katra. Neither Nathu nor his legal heirs were ever in the possession of any portion of the land situated at Kundrodian. They have been recorded as "Ghair Hazir", "Ghair Kabiz" (meaning the absentees and not holding the possession of the land) in the revenue record and as such they could not file a petition for partition, without filing a suit for possession as the same is a condition precedent for seeking partition in terms of Partition Rules. The respondent No.4 to 6 claim to have purchased the land situated at village Kundrodian, Tehsil Reasi, District Udhampur from Birbal and Ors. On the basis of the Sale Deed they filed a petition for partition of the land along with possession before the respondent No.2 who vide his order dated 18.04.2007 allowed the petition and ordered restoration of possession of the land as per the CIA No. 22/2013 c/w OWP No. 1798/2015 Page 3 of 14 instrument of partition. The petitioners herein questioned the order of the respondent No.2 i.e. District Collector dated 18.04.2007 by way of appeal before the respondent No.1 who vide its order dated 28.10.2015 dismissed the appeal, hence the petition.
05. Heard the learned counsel for the respondents and considered the material on record.
06. It needs must be said, at the first blush, that the matter was kept on board on 19.7.2018, when the learned counsel for the parties appeared before the Court and on the next date the learned counsel representing the appellants did not appear before the Court nor was any adjournment sought in the matter.
07. In order to determine the issues raised in this appeal in the proper perspective it will be proper and expedient to delineate the grounds and reasons on which the learned trial Court has dismissed the suit of the plaintiffs, that are the appellants herein. These read as under:-
"24. As already discussed, issues No.1 & 2 have already been decided by this court vide order dated 20.08.2009 in favour of the plaintiffs and against the defendants. Therefore let us advert to the rest of the issues.
Issues No.3.
Whether plaintiffs are the owners in possession of the suit land, same having been inherited by them from their forefathers and the suit land stand already partitioned between the ancestors of the plaintiffs and their co-sharers? OPP
25. The onus to prove issue No.3 is on the plaintiffs and the plaintiffs have examined as many as eight witnesses to prove that they are owners in possession of the suit land inherited from their forefathers and the suit land already stand partitioned CIA No. 22/2013 c/w OWP No. 1798/2015 Page 4 of 14 between ancestors of the plaintiffs and their co-sharers There is no doubt that plaintiffs Daulat Ram and Des Raj and so have rest of the witnesses, except PW-Om Parkash, Patwari have deposed that Bijan and Nathu, real brothers by virtue of private partition between them agreed to hold the property and the land situated at village Kundrorian fell in the share of Nathu and subsequently after the death of elder brother Bijan the mutation of inheritance was also attested in favour of his heirs by the then Tehsildar on 21.08.2008. The plaintiffs and their witnesses have also stated that the plaintiffs are holding and enjoying the suit property without any hindrance from any quarter, made curtained development and raised their residential houses.
26. However, a careful perusal of all these affidavits reveal that the contents of the affidavits are nothing but reproduction of paras No. 1 & 3 to 9, except few lines of para No.8, of the plaint. It is surprising that the plaintiffs and their witnesses have also mentioned the legal prepositions in their depositions. It appears that plaintiffs no. 1 & 2 and witnesses of the plaintiffs have only put their signatures on the affidavits already copied from the plaint and no deposition has been made with respect to the facts enumerated in the plaint by application of mind either by the plaintiffs no. 1 & 2 or witnesses of the plaintiffs.
27. Be that as it may, the most significant witnesses in the present case, is PW-Om Parkash Patwari, who has been duly cross examined. IT is worthwhile to mention that PW-Om Parkash, Patwari though deposed in chief examination that the defendants are not owners in possession of the suit property, but admitted in his cross examination that there is no reference in the mutation with respect to partition of the suit property between the plaintiffs and their co-sharers of their predecessors in interest.
28. There is doubt that co-sharers can partition the joint property by virtue of oral partition but plaintiff in such a case is obliged to prove the oral partition by cogent, reliable and credible evidence. I do not find force in the submission of defendants in the written statements that had there been oral partition of the suit property between predecessors in interest of the plaintiffs and defendants No. 1 to 7 prior to 1947, the CIA No. 22/2013 c/w OWP No. 1798/2015 Page 5 of 14 said partition would have been recorded in the revenue record. The Patwari, PW - Om Parkash during cross examination has categorically admitted that as per the Misl Haqiyat, the defendants have been reflected entitled to 1/4th share in the column of owners.
29. Therefore the plaintiffs have failed to prove their exclusive ownership and possession of the suit land and that the suit land stand partitioned between ancestors of the plaintiff and their co-sharers. Hence issue No.3 is decided against the plaintiffs and in favour of the defendants.
Issue No.4.
If issue No.3 is proved in affirmative, whether the sale deed dated 29.09.2006, executed by defendants No. 1 to 7, though defendant No.08, in favour of defendants No.9 to 11, is null and void on account of same being executed without any legal authority? OPP
30. Since finding on issue No.4 depends on the proof of issue of issue No.3 and issue No.3 has been decided against the plaintiffs, therefore issue No.4, too fails and is decided against the plaintiffs.
Issue No.5.
Whether defendants No.8 to 11 are causing interference in the possession of the plaintiffs over the suit land, forcibly and without reason? OPP
31. Since the plaintiffs have failed to prove their exclusive ownership and possession of the suit and the fact that the suit land has already been partitioned between their ancestors and their co-sharers, therefore the question of interference in the possession of the plaintiffs does not arise. Although the plaintiffs in their affidavits and so have their witness have deposed that the defendants No.8 to 11 with the help of some muscle men are trying to take forcibly possession of the suit land, however, as already discussed in issue No. 3 that the contents of affidavits are nothing but a copy of certain paragraphs of the plaint only without application of mind and the evidence led by the plaintiffs in this regard does not inspire confidence.
CIA No. 22/2013 c/w OWP No. 1798/2015 Page 6 of 14
32. Be that as it may, it is trite that no injunction can be granted against a co-sharer unless it is established by cogent, credible and reliable evidence that any act on the part of a co-sharer in possession of the property is prejudicial or detrimental to the interest of co-sharer out of possession. Since in the present case it has been averred by the plaintiffs that defendants are out of possession of the suit property and there is no evidence worth reliance that the defendants interfered into the possession of the plaintiffs, no injunction can be granted in favour of the plaintiffs. Hence issue no. 5 is decided against the plaintiffs and in favour of the defendants.
33. Having regard to what has been discussed hereinabove, the plaintiffs have failed to make out present case, hence the same is dismissed. Let a decree be drawn accordingly".
08. It will be pertinent to note that the learned District Judge, Reasi, has while recording the judgement dated 30th April, 2013, held that the status of the plaintiffs as co-sharers in relation to the land situate at Village Kundrodian, and village Sarna, between Bhijan and Nathu has been admitted by the plaintiffs and the plaintiffs have failed to prove the factum of the oral partition. The learned trial Court further wielded that even the witness of the plaintiffs namely, Sh. Om Parkash, Patwari has admitted that as per the records of rights, the defendants have a definite share in the column of owners. The plaintiffs have failed to prove their exclusive possession on the suit land and accordingly dismissed the suit of the plaintiffs. On the face of the contents of the appeal and the judgement extracted above the following issues need to be determined in this appeal a. Whether the plea of oral or private partition interse parties taken by the plaintiffs but not reflected in the Revenue Record, is sustainable as per Section 118 of J&K Land Revenue act?
CIA No. 22/2013 c/w OWP No. 1798/2015 Page 7 of 14 b. Whether the alleged Mutation in respect of the land confers any ownership and possessory rights on the appellants/plaintiffs?
c. Whether the plea of adverse possession taken by the appellants/plaintiffs in their suit perfecting their title, has been proved by the appellants/plaintiffs?
d. Whether the judgement dated 30th April, 2013 passed by the trial Court is bad and perverse?
09. Delving over the issues raised herein before, what requires to be stated at the outset is that according to the basic Rule of the pleadings, one who alleges a fact has to prove that fact and the civil rights of the parties have to be adjudicated on the basis of the pre-pondrance of evidence, led by the parties. The initial status of the co-ownership of the land is admitted herein this case. However, it is contended by the appellants that on the basis of the oral partition between their predecessors Bhijan and Nathu, the sale deed dated 29.09.2006 executed by the defendant Nos. 1 to 7 through defendant Nos. 8, in favour of defendant Nos. 9 to 11 is null and void. This takes one to scan and analyze the provisions of Section 118 of the Land Revenue Act running under the head "affirmation of partitions privately effected" which provides that whenever there is a partition by private means, the factum of oral partition has to be necessarily reflected in the Revenue Record. It reads as under:-
"(1) In any case in which a partition has been made without the intervention of a Revenue officer any party thereto may apply to an Assistant Collector of the first class for an order affirming the partition.
(2) On receiving the application, the Assistant Collector shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under Sections 114, 115, 116 and 117 CIA No. 22/2013 c/w OWP No. 1798/2015 Page 8 of 14 or any of those sections, as the circumstances may require, in the same manner as if the Partition had been made on an application to himself under this Chapter."
10. Before dealing with the application of the import of Section 118 of the Land Revenue Act, to the facts and circumstances of this case, it will be apposite and relevant to assess and evaluate the application of the law laid down in the case of in 2015 (13) SCC 722 to this appeal. It provides that when a statute provides a particular thing to be done in a particular manner it must be done in that manner or not at all. In case titled B. Premanand and Others Vs. Mohan Kokal and Others reported in 2011 SCCR 392, it has been held by the Apex Court that while interpreting the provisions of the statute when a legislative intent is clear from the language, the court should give effect to it. We should read the statute as it is without distorting the language. In the case of "Raghunath Rai Bareja and Another Vs. Punjab National Bank and Others" reported in 2007 SCCR 6, it has been held that where the words of the statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule.
11. The aforesaid enunciations of law, crystallize that when the language of the statute is clear it has to be understood and interpreted only and only in that mode and manner and it cannot be departed from or tinkered with. In the present case, the appellants have raised the plea of oral partition but the same is neither in tune nor in line with the terms, the mandate and the language of Section 118 of the J&K Land Revenue Act. The appellants have miserably failed to prove the plea of oral partition as projected in their suit. They have failed to prove the factum of oral partition interse their predecessor on the face of Section 118 which spells CIA No. 22/2013 c/w OWP No. 1798/2015 Page 9 of 14 out and makes it abundantly clear that in case in which a partition has been made without the intervention of a Revenue officer any party thereto may apply to an Assistant Collector of the first class for an order affirming the partition, which has not been done and, therefore, it can be said in unambiguous terms that there has been no oral partition. The law evolved on the subject by this Court and various other High Courts, is lucid, limpid and pellucid. It provides that if there is no reflection of the factum of oral partition in the Revenue Record, no presumption of an oral partition arises. These are "Kanta Devi Vs. Prabh Dayal" reported in 1998 KLJ 663; "Naranjan Dass Vs. Nirmal Dass & Ors" reported in 2014 (4) ICC 819; "Harbans Lal Vs. Gurdev Singh" reported in 2010 (2) RCR (Civil) 769; "Darbara Singh Vs. Gurdial Singh" reported in 1994 (1) PLJ 25; "Chander Shekhar and Ors Vs. Des Raj & Ors"
reported in 1989 PLJ 691; "Mangat Ram Vs. Gulat Ram (since deceased) through his L.Rs, Jagdeep Kumar & Ors" reported in 2010 (10) R.C.R. (Civil) 617, and the judgement of law passed by the Apex Court in the case titled "Jai Singh & Ors Vs. Gurmej Singh" arising out of Civil Appeal No. 321 of 2009, decided on 20th of January 2009. It is no longer res-integra now that if there is no reflection of oral partition in the Revenue Record in terms of Section 118 of Land Revenue Act read with Sections 23 and 31, the plea of oral partition cannot sustain.
12. The plaintiffs have failed to prove their exclusive right of ownership and possession qua the suit land. The witness of the plaintiffs as examined by them namely Sh. Om Parkash, Patwari has in his statement admitted the factum of ownership and possession of the defendants. He has knocked the bottom out of the contention of the plaintiffs that any oral partition has taken place which has been reflected CIA No. 22/2013 c/w OWP No. 1798/2015 Page 10 of 14 in the revenue records. His statement, in fact, is an admission of the fact in terms of Section 58 of the Evidence Act. Once the plea of oral partition fails, the status of the co-ownership qua the suit land can be said to have been admitted and the execution of Sale Deed by the co-sharers to the extent of their holding cannot be termed and declared as null and void, as the co-sharers had an absolute right to alienate the land to the extent of their share. There as such is no infirmity in the judgement passed by the learned trial Court and the appeal is liable to be dismissed.
13. The appellants have taken the plea of adverse possession qua the suit land against another co-sharer. It needs to be stated that the alternative plea taken by the appellants in their suit is self destructive. Since the appellants have taken the plea of adverse possession in that eventuality the appellants have unconditionally admitted the status of the defendants as co-owners against the other co-owners. In the case of "Md. Mohammad Ali (Dead) Vs. Sri Jagadish Kalita & Ors" reported in 2004 (1) SCC 271, it has been settled that the possession of property by a co- owner is deemed to be possession on behalf of the other co-sharers unless it is established that the possession of co-owner is in denial of title of co-owner and the possession is hostile to the co-owner by exclusion of them. There has to be an open denial of title to the party who is entitled to it by excluding and ousting them. Whenever a plea of adverse possession is taken, it has to be from the date from which the plaintiff claims adverse possession and when it was perfected has to be mentioned categorically and specifically. This principle has been repeated and reiterated in the law laid down in the case of "Nagabhushanammal Vs. C. Chandikeswaralingam" reported in 2016 AIR SC 1134. In the present case, the appellants have failed to prove the plea of adverse CIA No. 22/2013 c/w OWP No. 1798/2015 Page 11 of 14 possession and to point out any infirmity in the judgement passed by the trial Court.
14. The appellants in their appeal plead that the learned trial Court has failed to consider the effect of the attestation of the mutation in their favour qua the suit land on the basis of which the ownership and possessory rights have been conferred on them. As per the settled law, delivered in the cases of "H. Lakshmaiah Reddy and Ors Vs. L. Venkatesh Reddy" and "Prem Nath Khanna and Ors Vs. Narinder Nath Kapoor (Dead) through L.Rs and Ors" reported in 2015 (14) SCC 784 and 2016 (12) SCC 235, respectively, the mutation entries do not create or extinguish title nor do they raise any presumption in that regard. These entries are relevant only for the collection of land revenue. In the present appeal, the appellants have tried to lay their claim on the basis of a mutation and the learned trial Court after taking into consideration all the documentary as well as the oral evidence and the law governing the subject has returned a finding which is neither perverse nor does it suffer from any illegality.
15. The other contention of the appellants in that the learned trial Court has failed to consider the evidentiary value of the affidavits filed by them. The learned trial Court has accorded due consideration to these affidavits of the appellants/plaintiffs. Under the Code of Civil Procedure, there is no distinction between the ex-parte decree and a decree passed by the Court on contest of the parties. The law in this respect is no more res-integra. Whenever the court is called upon to pass an ex-parte decree, the court has to be more vigilant about the case set up by the plaintiffs and has the legal duty and the responsibility to see that the relief claimed by the CIA No. 22/2013 c/w OWP No. 1798/2015 Page 12 of 14 plaintiff is permissible under law. If the Court finds that there is a legal hurdle or a bar in the grant of the relief to the plaintiff, the court has to refuse the relief. The appellants/plaintiffs alleged oral partition. The learned trial Court while passing the judgement has minutely considered and appreciated the evidence led by the appellants/plaintiffs and found that the affidavits/plaintiffs are nothing but a replica and the reproduction of the plaint. The learned trial Court has further held that even the law has been discussed in these affidavits and has accordingly rejected them.
16. Looking at the writ of the petitioners, that are the appellants herein, the petitioners have challenged the virus of the order dated 28.10.2015 passed by the Additional Commissioner, Jammu with powers of Divisional Commissioner in which it has been held as under: -
"I have paid due consideration to the written arguments made on behalf of the both the parties. It is no denying the fact that a share of the land has been purchased from the shareholders. The Hon'ble High Court has while interpreting the scope of Rule 12 of the Partition Rules in case LPA (W) No. 9/2004 titled Sukhdev Singh & Ors. Vs. Daljit Singh & Ors has clearly held that possession of one shareholder shall be deemed to be that of other shareholders also and the cases of the latter for partition of land shall not be suspended rather partition proceedings shall be carried in their favour also. Thus, in the totality of their circumstances, it is clear that respondents have become co-sharer in the joint Khewat and they are legally entitled to get the land to the extent of their share (bought) as partitioned under the Partition Rules. Thus, in this view of the matter, the order passed by the Deputy Commissioner is sound and clear and deserves no interference at this stage. Consequently, this CIA No. 22/2013 c/w OWP No. 1798/2015 Page 13 of 14 appeal fails and is hereby dismissed. Stay granted if any shall stand vacated. The record file of the court below be sent back and the case file of this court be consigned to records after due completion".
17. The grounds and the pleas taken in the writ petition are squarely covered by the impugned judgment and have been dealt with in detail leaving nothing unsettled and unanswered. The learned trial Court has after appreciating the pleadings, the evidence and the law evolved on the subject passed the judgement and decree which does not call for any interference. It does not suffer from any legal or factual infirmity and as such, it cannot be termed to be bad or perverse in the eyes of law. The appellants before the trial Court have failed to prove the statutory mandate of Section 118 of the J&K Land Revenue Act.
18. In view of the preceding analysis, the appeal as well as the writ petition entail dismissal and are accordingly dismissed as a corollary to which the impugned judgement and decree of the trial Court is upheld. The record shall be sent down forthwith.
(M.K. Hanjura) Judge.
JAMMU 17.09.2018 Showkat CIA No. 22/2013 c/w OWP No. 1798/2015 Page 14 of 14