Himachal Pradesh High Court
Sh. Amrik Singh And Others vs Sh. Abnash Chand And Others on 28 May, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 85 of 2001 .
Reserved on 15th May, 2015 Decided on: 28th May, 2015 Sh. Amrik Singh and others .......Appellants.
Versus Sh. Abnash Chand and others. ...Respondents. Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1 Yes. For the appellants: Mr. Bhupender Gupta, Senior Advocate with Mr. Ajit Jaswal, Advocate.
For the respondent: Mr. N.K. Thakur, Senior Advocate with Mr. Ramesh Sharma and Rohit Bharoll, Advocates for respondents No. 1 and 2.
None for the remaining
respondents.
Dharam Chand Chaudhary, Judge.
Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree dated 10.01.2001 passed by learned District Judge, Una in Civil Appeal No. 25 of 1993, whereby the appeal has been dismissed and the judgment and decree passed 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 2by learned Senior Sub Judge, Una in case No. 330 of 1983 dated 30.01.1993 affirmed.
.
2. The facts giving rise for filing of the present appeal, in a nut-shell, are that :
(i) land measuring 9 Kanals 6 Marlas, Khewat No. 260, Khatoni Nos. 544, 545, 546, Khasra Nos. 4689/3923/1052min, 4689/3923/1052- 1053min, 4689/3923/1052min-1053 min;
(ii) land measuring 12 Kanals 1 Marla, Khewat No. 258, Khatoni No. 541, Khasra Nos. 1282, 1361 and 1362 ; and
(iii) land measuring 4 Kanals 7 Marlas, Khewat No. 259, Khatoni No. 542, 543, Khasra No. 46min;
total 25 Kanals 14 Marlas situated in Revenue Estate, Una, as per entries in the Jamabandi for the year 1976-77 is claimed to have been in joint ownership and possession of the parties to the suit. The plaintiffs though applied for partition thereof by filing an application under the Land Revenue Act before the Assistant Collector 1st Grade, Una during the year 1972, however, respondents No. 1 and 2 (hereinafter referred to as 'defendants No. 1 and 2') have raised the question of ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 3 title, as according to them the suit land was already partitioned. The Assistant Collector, however, rejected .
the said objections and allowed the partition of the suit land. Defendants No. 1 and 2 preferred an appeal before S.D.O (Civil), Una, who remanded the case for deciding the objections afresh. During the currency of r to the partition proceedings, settlement operation started in the Revenue Estate, Una. The case file was taken over by Tehsildar (Settlement), Una. The application was allowed vide order dated 29.06.1982 and the mode of partition also drawn. Defendants No. 1 and 2 have assailed the order so passed before the Settlement Officer, Kangra. The Settlement Officer accepted the appeal and order to relegate the parties to Civil Court for getting the question of title decided from the Civil Court having jurisdiction over the matter. The partition proceedings initiated on the application filed by the plaintiffs were kept in abeyance till the question of title is decided.
3. The plaintiffs claim that the suit land is joint of the parties. The same has not yet been partitioned ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 4 privately or through intervention of the Court. The suit land measuring 9 Kanals 6 Marlas abuts Una-Hamirpur .
road adjoining to new bus stand, Una, hence valuable.
Defendants No. 1 and 2 allegedly influential persons want to occupy the best portion of the land in dispute abutting the road to the exclusion of the plaintiffs-
appellants forcibly.
The plaintiffs, therefore, seek the declaration to the effect that the suit land is joint of the parties with permanent prohibitory injunction, restraining the defendants from raising any construction thereon by occupying best and valuable portion abutting the road.
4. Defendants No. 1 and 2 when put to notice have contested the suit. According to them, they have nothing to do with the suit land except for a portion of land measuring 9 Kanals 6 Marlas entered in Khewat No. 260, Khatoni Nos. 544, 545 and 546. This land, according to them, stands partitioned between their predecessor-
in-interest Smt. Durgi and predecessor-in-interest of the plaintiff Sh. Bhagat Ram, co-sharers in the year 1952. The said private partition was given effect in the revenue record by lodging rapat in rojnamcha vakayati on ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 5 24.10.1952. As per private partition, land in eastern side bearing Khasra Nos. 3923, 1052 and 1053 measuring 4 .
Kanals 14 Marlas fell in the share of their predecessor-in-
interest Smt. Durgi Devi and remaining 4 Kanals 14 Marlas bearing Khasra No. 3932, 1023, 1052/2 in western side abutting old Una-Arnayala road to that of Sh. Bhagat Ram, co-sharer. Tatimas of the partition of the land so having taken place were carved out by the Patwari, therefore, Smt. Durgi Devi their predecessor-in-interest had no connection with the land of Bhagat Ram and Bhagat Ram with that of her separate parcel. Although, no mutation of such private partition was entered in the revenue record. It has also been pointed that Bhagat Ram, predecessor-in-interest of the plaintiff had retained best portion of the land at that time and the inferior portion thereof that too, under the tenancy on the eastern side was given to Smt. Durgi Devi.
5. One Ajit Singh had acquired the portion of the land measuring 1 Kanal 11 Marlas out of 4-14 Kanals in the share of said Smt. Durgi Devi vide sale deed dated 28th July, 1962. Said Ajit Singh further sold his entire land ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 6 i.e. 1 Kanal 11 Marlas to defendants No. 1 and 2 through registered sale deed dated 12.07.1966. The defendants .
are, therefore, now in possession of 1 Kanal 11 Marlas of land. They have raised construction thereon and also installed a water tap. The vacant land is being used by them for storing coal, fuel wood and other materials. The plaintiffs allegedly were using 4 Kanals 14 Marlas land exclusively without interference of said Smt. Durgi Devi or her successor-in-interest. They even sold the earth also from that portion of the land exclusively with them. It is further pointed out that defendants are not concerned with the suit land except for 1 Kanals 11 Marlas, they purchased from Ajit Singh.
6. Defendants No. 3, 7 to 9 in separate written statement filed on their behalf have not contested the suit and rather admitted the claim of the plaintiffs to be true and correct.
7. Defendants No. 4 to 6 have also admitted the claim of the plaintiffs to be true and correct.
8. On such pleadings of the parties, learned trial Court has framed the following issues:
::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 71. Whether the land had been privately partitioned as alleged ? OPD 1 and 2.
.
2. Whether the plaintiffs are estopped by their act and conduct form filing the suit as alleged? OPD 1&2.
2-A. Whether the suit is barred by principle of res judicata? OPD 1&2.
2-B. Whether the suit is barred under Order 2 ru7le 2-C. If 2 CPC?
r issue OPD.
No. 1 is not proved, possession of defendants No. 1 and 2 has whether ripened into ownership by adverse possession as alleged? OPD, 1 and 2.
2-D. Whether the suit is collusive between the plaintiffs and defendants No. 3 to 5, if so, its effect? OPD.
3. Relief.
9. The parties were put to trial. On appreciation of the evidence comprising oral as well as documentary, learned trial Court has decreed the suit. Learned lower appellate Court has affirmed the judgment and decree so passed and dismissed the appeal vide judgment and decree under challenge in this appeal before this Court.
10. The challenge to the judgment and decree is on the grounds inter-alia that the plea of private partition ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 8 raised by defendants No. 1 and 2 has erroneously been accepted by both Courts below. The revenue record .
does not support the plea of private partition so raised.
The factum of the defendants did not assert any claim for award of separate compensation during the course of acquisition proceedings of a portion of the suit land r to and rather received the compensation jointly, is stated to be not taken into consideration. Over-whelming evidence available on record showing that the land in suit being most valuable and adjoining the main highway and as such, could have not fallen in the share of defendants in private partition is erroneously ignored.
The case law cited on behalf of plaintiffs has not been applied and to the contrary, the judgment of the Apex Court relied upon by learned lower appellate Court has wrongly been applied. Neither there was any order of private partition passed by a competent Revenue Officer nor the property ever privately partitioned, but such facts have erroneously been ignored. The evidence available on record is stated to be misread, mis-appreciated and mis-construed.
::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 911. The appeal has been admitted on the following substantial questions of law:
.
1. Whether the presumption of private partition could be raised merely on the ground that in the revenue record the parties have been recorded in separate possession? In the absence of any instrument of partition and delivery of possession as envisaged under the Land Revenue Act, could the presumption of partition be raised merely on the basis of report Rojnamcha which was inadmissible in evidence?
2. Whether both the courts below have erroneously ignored from consideration that the admission of defendants-respondents exhibit the status of the parties as co-owners by accepting the Award of Land Acquisition and not assailing the same in any proceedings?
12. As per description already given at the very out, the suit land though is 25 Kanals 14 Marlas, however, for the purpose of the present controversy, it is the land measuring 9 Kanals 6 Marlas entered in Khewat No. 260, is the subject matter of dispute. Rather real controversy is ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 10 qua 1 Kanal 11 Marlas, out of the same purchased by defendants No. 1 and 2, S/Sh. Surinder Lal and Abnash .
Chand. It is they who alone contested the suit that too, qua the suit land to the extent of 1 Kanal 11 Marlas, they purchased and qua remaining, it is their case that they have nothing to do therewith. Since the plaintiffs claim that the entire suit land including 9 Kanals 6 Marlas aforesaid is joint of the parties, whereas, defendants No. 1 and 2 have raised the plea of private partition and also that the same stands duly acted upon by giving effect in the revenue record, therefore, the legal question need adjudication is that the evidence available on record substantiates the plea of private partition and the same having given due effect in the revenue record or not?
13. Sh. Bhupender Gupta, learned Senior Advocate has argued that mere separate possession for convenience of cultivation without any instrument as required to be drawn under Section 133 followed by delivery of possession as required under Section 134 of the H.P. Land Revenue Act cannot at all be taken as partition of the suit land having taken place in ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 11 accordance with law. This Court, however, find no substance in the argument so addressed for the reason .
that instrument of partition is required to be prepared in those cases where partition has taken place with the intervention of a Revenue Officer. Therefore, Sections 133 and 134 of the H.P. Land Revenue Act has no application in the case in hand. True it is that in a case where partition has taken place without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for affirmation thereof under Section 135 of the Act. In the case in hand, the partition of the suit land entered in Khewat No. 260 measuring 9 Kanals 6 Marlas had taken place in October, 1952. Reference in this behalf can be made to Ext. DW-5/A rapat rojnamcha Vakayati, Hindi version whereof is Annexure A-3 to the application, CMP No. 3936 of 2015. In this document, out of the suit land measuring 9 Kanals 6 Marlas bearing Khasra Nos. 3923, 1052 and 1053, 4 Kanals 14 Marlas in western side was taken by Bhagat Ram, predecessor-in-interest of the plaintiffs for himself and 4 Kanals 14 Marlas in eastern side was given to Smt. Durgi ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 12 Devi, predecessor-in-interest of defendants No. 1 and 2.
In this document, word "Garv" stands for west and word .
"Shak" for east. There is no dispute qua it. The partition had taken place with mutual consent between the co-
sharers, namely, Bhagat Ram and Durgi Devi and a rapat Ext. DW-5/A was entered in Rojnamcha Vakayati of the concerned Patwar Circle. The rapat rojnamacha ultimately was given effect in the Jamabandi for the year 1956-57, Ext. P-13, in which defendants No. 1 and 2 have been shown owners and in separate possession of 1/6 shares of the suit land denoted by Khasra Nos. 3923, 1052, 1053/2/2. The other owners have been shown in separate possession of the land to the extent of their respective shares i.e. 1/3 of Gurdass Ram etc., and half share that of the plaintiffs. If coming to the Jamabandi for the year 1976-77, while Khewat number of the land is 260, the same has been bifurcated in different Khatonis i.e. 544, 545 and 546. Land purchased by defendants No. 1 and 2 has been denoted by Khatoni No. 545 measuring 1 Kanal 11 Marlas, Khasra Nos.
4689/3923/1052min, 1053min. The Khatoni of the land ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 13 with the plaintiffs is 544, Khasra Nos. 4689/3923.1052, 1053min measuring 4 Kanals 14 Malras. The remaining 3 .
Kanals 1 Marla has been denoted by separate Khatoni No. 546 and denoted by Khasra Nos. 4689/3923/1052min, 1053. As a matter of fact, as per this document, land measuring 4 Kanals 14 Marlas is that of the plaintiffs and it has been gifted to them by their predecessor-in-interest Sh. Bhagat Ram, whereas, 1 Kanal 11 Marals with defendants No. 1 and 2 and 3 Kanal 1 Marla, total 4 Kanal 14 Marlas with Gurdass Ram etc., was in the share of their predecessor-in-interest of Smt. Durgi Devi. Smt. Durgi Devi had sold 1 Kanal 11 Marlas to one Ajit Singh vide sale deed Ext. DW-9/A. It is from said Sh. Ajit Singh, defendants No. 1 and 2 have purchased the same further. In the sale deed Ext. DW-9/A location of the land sold to Sh. Ajeet Singh by Durgi Devi find mentioned. The same tallies with the entries in the rapat rojnamcha Ext.
DW-5/A. If coming to Khasra Girdawari Ext. DW-7/A for the year 1952-53, Hindi version whereof is at page No. 547 of the trial Court record, tatima has been drawn and as per the same, out of the suit land, 4 Kanals 14 Marlas ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 14 was given to Smt. Durgi Devi, predecessor-in-interest of defendants No. 1 and 2 in eastern side. The location of .
the land sold to Ajit Singh and thereafter by Ajit Singh to defendants No. 1 and 2, if compared with tatima drawn and Khasra Girdawari Ext. DW-7/A, the same tallies with each other. In Khasra Girdawari for the year 1957-58, Ext.
D-7 also land with Durgi Devi is in the direction "Shak" i.e. east, whereas, that of Sh. Bhagat Ram aforesaid in direction "Garv" i.e. west. In Khasra Girdawari Ext. D-8 map has also been drawn. As a matter of fact, this document clinched the point in issue because name of Smt. Durgi Devi in the map so drawn is on the top, whereas, that of defendants No. 1 and 2 below her name. Meaning thereby that 1 Kanal 11 Marlas of the suit land in the ownership and possession of defendants No. 1 and 2 was adjoining to the remaining land 3 Kanal 13 Marlas. In Khasra Girdawari for the year 1969-70, 1971-72 and 1972-73, Ext. D-9 also, out of 4 Kanal 14 Marlas land belonging to Smt. Durgi Devi 1-11 Kanals in eastern side though has been shown in the ownership and possession of said Smt. Durgi Devi, however, through ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 15 defendants No. 1 and 2 and the remaining 3-3 Kanals in her share again in her ownership but through Gurdass .
Ram etc., whereas, the land in the ownership and possession of the plaintiffs in western side. Therefore, from this document also, it is crystal clear that in the eastern side the land fell in the share of Smt. Durgi Devi, whereas, in the western side in that of Bhagat Ram, the predecessor-in-interest of the plaintiffs. One Smt. Sandla, as per Ext. P-22 was the Special Power of Attorney of the plaintiffs. If coming to Ext. DW-9/B, Hindi version whereof is at page No. 461, she claimed the plaintiffs to be exclusive owners in possession of 4 Kanals 14 Marlas i.e. half share out of suit land measuring 9 Kanals 6 Marlas.
As a matter of fact, in this document, the land in question was given to a brick kiln owner for extraction of earth on payment of charges. The entries in the Jamabandi for the year 1952-53, Ext. D-12, makes it crystal clear that 4 Kanal 14 Marlas of land given to predecessor-in-interest of the defendants was in the possession of the tenants. The remaining 4 Kanal 14 Marlas taken by Sh. Bhagat Ram, the predecessor-in-::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 16
interest of the plaintiffs, however, was not under the tenancy of anyone. Therefore, at the time of partition, .
said Sh. Bhagat Ram had taken best piece of land.
14. The documentary evidence discussed supra, make it crystal clear that the suit land measuring 9 Kanal 6 Marlas stands partitioned between Bhagat Ram and Smt. Durgi Devi, predecessor-in-interest of the parties to the suit. It is for this reason different Khatonis i.e. 544, 545 and 546 in respect of the same have been prepared.
While land entered in Khewat No. 260, Khatoni No. 545, Khasra Nos. 4689/3923/1052, 1053min measuring 1-11 Marlas has been purchased by defendants No. 1 and 2, the remaining 3-1 Marlas in the share of Smt. Durgi Devi entered in Khewat No. 260, Khatoni No. 546, Khasra Nos.
4689/3923/1052min, 1053min measuring 3-1 has been recorded in the ownership and possession of Gurdass Ram etc. Similarly, the land measuring 4-14 Marlas of plaintiffs in this very Khewat has been denoted by separate Khatoni i.e. 544. It is, therefore, satisfactorily proved that suit land measuring 9 Kanals 6 Marlas stand duly partitioned with mutual consent amongst the co-::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 17
shares i.e. Sh. Bhagat Ram and Smt. Durgi Devi long back in the year 1952. The partition so taken place was .
given effect by making entries in the Rojnamcha Vakayati vide rapat Ext. DW-5/A. Thus, the partition so taken place has been given effect in the revenue record also, because the entries in the jamabandi for the year 1956-57, Ext. P-13 and Jamabandi for the year 1976-77, Ext. P-10 show that the land is in separate possession of the plaintiff, defendants No. 1 and 2 and other co-
sharers. The contentions to the contrary that for want of instrument of partition and delivery of possession, the legal and valid partition of the suit land cannot be inferred, are without any substance for the reason, already stated in para supra. Instrument of partition is required to be prepared in a case where the partition is effected through a Revenue Officer. Here, it is private partition having taken place with mutual consent. The Punjab and Haryana High Court in Dhan Kaur (Died) through LRs versus Shamsher Singh and others, 2005(3) Civil Court Cases 673 (P&H) has held as follows:::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 18
"17. It is also well settled that there is no prohibition by law about oral partition and .
that a memorandum of past oral partition is not required to be registered. In this regard, reliance may also be placed on various other judgments of the Supreme Court in the cases of Bakhtawar Singh v. Gurdev Singh, 1969(9) S.C.C.370, Hans Raj Agarwal v. CIT, 2003(2) Devram S.C.C.428.
S.C.C. 295 and Digambar Adhar Patil v.
Girdhar Patil, 1995 Supp.(2) The facts of the present case are required to be examined in the light of the principles laid down by the Supreme Court in the above mentioned judgments. The learned lower appellate Court has fallen in a grave error by discarding documents Mark 'A' and 'B'which are mere memorandum of family partition. There is no necessity for everyone of the co-sharer to thumb-mark, sign and acknowledge such a memorandum. I am further inclined to hold that a family settlement once given effect to by the parties then the Courts should be very slow in interfering with the same......... .........The evidence on record supports only one view that partition in fact has taken ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 19 place and parties were in possession even earlier to the oral partition. Therefore, the .
findings on the issue as returned by the lower appellate Court are not sustainable because there are categorical admissions made by defendants, document Mark 'A' and 'B'- memorandum of partition and the recitals in Ex. P-1, P-3 and P-3. There is no evidence to the contrary.
to Revenue record cannot be considered in isolation.
r It was to be reckoned according to factual position. It is also pertinent to mention that possession of the parties in respect of their lands is long and settled. Therefore, the findings of the lower appellate Court are liable to be set aside and that of the trial Court deserve to be restored."
15. The point in issue in the present lis is squarely covered by the ratio of the judgment supra. The parties herein are also in separate possession, as is apparent from the over-whelming documentary evidence in the form of Jamabandis, Khasra Girdawaris as well as Rapat Rojnamcha etc. discussed hereinabove.
16. Otherwise also, in the present lis the Court is concerned with the suit land measuring 9-6 Marlas. Out ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 20 of 4-14 Marlas in the share of Smt. Durgi Devi, defendants No. 1 and 2 had purchased 1-11 Marlas because the .
remaining defendants have not contested the claim of the plaintiffs. In view of the ratio of the judgment of a Division Bench of this Court in Smt. Lila Wati and others versus Paras Ram and others, AIR 1977 Himachal Pradesh Interestingly 1, partition of a particular property leaving the remaining joint is legally permissible.
17.
enough, the plaintiffs have withdrawn the previous suit bearing No. 183 of 1979, filed for decree of declaration to the effect that suit land measuring 9-6 Marlas, which is subject matter of dispute in the present lis is unpartitioned and that till the partition thereof, the defendants be restrained from raising any construction on the best and specific portion thereof, unconditionally and without reserving liberty to file fresh suit, as is apparent from the perusal of order Ext. P-15 passed by learned Sub Judge, 1st Class, on 28.04.1981 in the said suit. Therefore, even the maintainability of the present suit is doubtful, as no fresh suit could have been filed. True it is that in the joint statement Ext. P-3 of ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 21 learned counsel representing the defendants including defendants No. 1 and 2 herein, it was stated that till the .
partition of the suit land is effected, they will not raise construction thereon and will maintain status quo qua the same as on that day. It is on the statement Ext. P-3, learned counsel representing the plaintiffs in that suit vide statement Ext. P-4 has not pressed the suit and sought the dismissal thereof. The liberty to file fresh suit, however, was not sought to be reserved by learned counsel for the plaintiff. Mr. Gupta, learned Senior Advocate has laid emphasis on the statement Ext. P-3 and has urged that the defendants had themselves agreed not to raise any construction over the suit land till the same is partitioned. However, the submissions so made are without any substance for the reason that statement Ext. P-3 cannot be taken to arrive at a conclusion that the defendants, particularly defendants No. 1 and 2 had admitted the suit land being unpartitioned. The issue that the same stands partitioned or not was not yet decided at the time of making statement Ext. P-3. If on the basis of statement Ext. P-3, it ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 22 is to be inferred that the defendants had admitted the suit land unpartitioned, why the plaintiffs have filed the .
present suit. It appears that on construction of bus stand Una adjoining to the suit land and the suit land in the ownership and possession of defendants No. 1 and 2 is abutting to Una-Hamirpur highway, became more valuable and the plaintiffs with a motive to grab the same have instituted the suit to unsettle the position settled long back in the year 1952, when the partition thereof had taken place with mutual consent. The arguments addressed on behalf of the appellants-
plaintiffs that on the construction of Una-Hamirpur highway, this piece of land has become valuable and as such they are entitled to seek partition thereof are without any substance, because position qua suit land settled long back in the year 1952 cannot be allowed to be unsettled at this stage, that too, when the predecessor-in-interest of the plaintiffs at that time had taken the best portion of the suit land for himself and portion thereof under the tenancy was given to Smt. Durgi Devi by putting her in an advantageous position.
::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 23Now, with the passage of time if the Una-Hamirpur road has been constructed adjoining to the portion of the suit .
land in the possession of defendants No. 1 and 2, the possession of the said defendants cannot be unsettled, particularly when they as per entries in the jamabandis Ex. P-10 and Ext. P-13 have raised construction of their house and using the remaining vacant land as go-down to store the coal, fuel wood etc.. The law laid down in Surat Singh versus F.C. (Appeals) and another, 2008(1) Shim,LC 3 is not applicable in the case in hand for the reason that here it is not only Khasra Girdawaris which substantiates the plea of private partition but also the entries in the jamabandis and Rapat Rojnamcha Vakayati discussed hereinabove. As regards law laid down by the Apex Court in Md. Mohammad Ali (Dead) by LRs versus Jagadish Kalita and others, (2004)1 Supreme Court Cases, 271 and by Punjab and Haryana High Court in Bhartu versus Ram Sarup 1981 Punjab Law Journal, 204 there cannot be any quarrel qua the same, however, here the suit land measuring 9-6 Marlas has lost its characteristics of joint property after its private ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 24 partition having taken place in the year 1952. If coming to the law laid down by Punjab and Haryana High Court .
in Suba Singh versus Mohinder Singh and others, 1983 Revenue Law Reporter 384 and in Dhoom Singh and another versus Ram Kumar and another 1988 Punjab Law Journal 72. the same is also not attracted as in the case in hand the private partition arrived at between the parties with mutual consent was reported to the Revenue Authorities and consequently Rapat Ext. DW-
5/A was entered in Rojnamcha Vakayati. Not only this but the partition so taken place has also been given due effect in the revenue record, such as jamabandis and Khasra Girdawaris. The law laid down by this Court in Mangat Ram versus Gulat Ram (since deceased) through his LRs Jagdeep Kumar and others Latest HLJ 2011(H.P.) 274 is also distinguishable on facts, because here not only the private partition has taken place but the co-
owners have given effect to the same in the revenue record and separate Khatonis have also been prepared with respect to the separate piece of land in possession of plaintiffs, defendants No. 1 and 2 and remaining ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 25 defendants. As regards, the law laid down by this Court in Sunder and others versus Hukmi Devi and another .
1999(1) CLJ (H.P) 314, the same has also no application in the case in hand, because in that case the private partition was set aside, whereas, in the case in hand the private partition having been duly proved cannot be set aside. Similarly, in Janku and others versus Nagnoo and others AIR 1986 Himachal Pradesh 10, there was no oral or documentary evidence showing the partition of the property having taken place. However, in the case in hand, there is over whelming oral as well as documentary evidence to arrive at a conclusion that suit land measuring 9-6 Marlas stands already partitioned.
The judgment of this Court in Khem Dutt and others versus Palkia and another 1983 Shim.L.C 77 deals with the case pertaining to the partition of the land by a Revenue Officer under the H.P Land Revenue Act, hence not applicable in the case in hand. Learned lower appellate Court has rightly placed reliance on the judgment of the Hon'ble Apex Court in Kale versus Deputy Director of Consolidation, AIR 1976 SC 807, as the ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 26 parties to the present suit should honour the private partition having taken place long back in the year 1952 .
by mutual consent. I am not persuaded to take a view of the matter that the family settlement is only to be honoured and the same does not prohibit a party to seek partition in accordance with law for the reason that in the case in hand it is not merely a family settlement but the plea of private partition set up by defendants No. 1 and 2 is proved on record satisfactorily.
18. In view of what has been said hereinabove, present is not a case of mere separate possession of the suit land but a case where partition thereof has taken place with mutual consent. In a case of this nature, no instrument of partition is required to be prepared and an information to the Revenue Officer is sufficient. Such information in the form of Rapat Rojnamcha Ext. DW-5/A was duly received by the Revenue Officer and entered in Rojnamcha Vakayati. On and after entry of the rapat, the partition so arrived at was given effect in the revenue record because as per entries in the jamabandis and Khasra Girdawaris not only the parties ::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 27 to the suit have been shown owner in possession of the suit land to the extent of their respective shares but .
separate Khatonis pertaining to the land in their respective shares also stand prepared.
19. If coming to 2nd substantial question of law, the acceptance of award by defendants No. 1 and 2 along with plaintiffs and defendants No. 3 to 9 in respect of acquired land cannot be taken to be a circumstance to belie the plea of private partition because it is not the case of the plaintiffs that out of the land in the ownership and possession of Sh. Ajit Singh, predecessor-in-interest of defendants No. 1 and 2, no portion thereof was acquired. The presumption, therefore, would be that out of the land Sh. Ajit Singh aforesaid had purchased and in their ownership and possession, some portion was acquired and they have been paid compensation in respect of such acquired land. The acceptance of the compensation, therefore, cannot be treated as an admission qua the suit land unpartitioned on the part of defendants No. 1 and 2 by any stretch of imagination.
::: Downloaded on - 15/04/2017 18:16:41 :::HCHP 2820. In view of reappraisal of the given facts and circumstances and also evidence available on record, .
no legal question much less substantial question of law as formulated arise for determination in the present appeal. On the other hand, the concurrent findings recorded by both Courts below on appreciation of the r to evidence available on record in its right perspective need no interference in the present appeal.
judgment and decree under challenge being legally The and factually sustainable is hereby affirmed.
21. This appeal, therefore, fails and the same is accordingly dismissed. No orders so as to costs.
May 28, 2015 (Dharam Chand Chaudhary)
(naveen) Judge
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