Punjab-Haryana High Court
Naranjan Dass vs Nirmal Dass Etc on 23 September, 2014
RSA-631-2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA-631-2011 (O&M)
Date of decision: 23.9.2014
Naranjan Dass
..... Appellant
Versus
Nirmal Dass and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of the local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
PRESENT: Mr. Mohd. Yousaf, Advocate for the appellant.
Mr. HS Thiara, Advocate for respondent No. 1.
R.P. NAGRATH, J.
Suit was filed by plaintiff/respondent No. 1-Nirmal Dass for partition of the land comprised in Khewat No. 6, Khatauni No. 18, Khasra No. 50/10 (1-10) and Khewat/Khatauni No. 23//22/1 (4-5) total measuring 5 kanals 16 marlas by metes and bounds. There is no dispute that this is a gair mumkin property over which construction has been raised. The suit land was originally the joint property in the ownership of Atma Ram and Dheera Ram sons of Chajju Ram. The parties to the suit are the heirs of Atma Ram and Dheera Ram aforesaid. According to plaintiff-respondent No. 1, the land in dispute had not been partitioned by metes and bounds.
2. The suit was contested by defendant No. 1-appellant and RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -2- defendants No. 4, 5 and 8 on the plea that there was an oral family partition between the parties since long. Defendant No. 1-appellant was in fact rasing the new construction after demolishing the old structure over his property. Learned trial Court framed the following issues from pleadings of the parties:-
"1. Whether the plaintiff is entitled to get his share separated through partition? OPP
2. Whether the defendants are threatening to alienate the suit property and are also threatening to raise construction? OPP
3. Whether the suit of the plaintiff is bad for material concealment of facts? OPD
4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee? OPP (as amended on 6.10.2009).
5. Relief."
3. The plaintiff-respondent No. 1 appeared as PW-1 and he examined Amar Nath (PW-2) whereas defendant No. 1-appellant made statement as DW-1. The learned trial Court held that once partition had taken place between the parties about 30 to 35 years ago and the plaintiff- respondent No. 1 also wants to stick to the said family partition during his statement as PW-1, the suit was dismissed.
4. The plaintiff-respondent No. 1 was successful before the learned Ist Appellate Court and against the said decree passed by the Ist Appellate Court, defendant No. 1-appellant has preferred this Regular RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -3- Second Appeal (RSA).
5. The learned counsel for the appellant-defendant No. 1 has proposed the following questions of law:-
(i) Whether the Ld. Lower Appellate Court has acted contrary to the provisions of Section 58 of Indian Evidence Act?
(ii) Whether the Ld. Lower Appellate Court has misread the evidence?
(iii) Whether oral family partition is permissible under the law?
(iv) Whether non-implementation of oral partition in the revenue record affects the rights of the parties?
(v) Whether the Ld. Lower Appellate Court has ignored the admissions made by respondent No. 1?
(vi) Whether the lower Appellate Court has failed to appreciate the evidence and facts proved on the record?
6. I have heard learned counsel for the appellant, learned counsel for respondent No. 1, perused the judgments and records of the Courts below and find that the conclusions reached by the learned Ist Appellate Court to be quite correct and there is no scope to contend that any substantial question of law arises.
7. In the revenue record, the land is still entered in the names of RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -4- co-sharers. There is no reflection of any partition in the said record. The learned Ist Appellate Court observed as under:-
"16. Ld. Counsel for the contesting respondents after drawing attention of this court towards the testimony of PW Amar Nath submitted that as per Amar Nath, partition amongst the cosharers occurred some fifty years ago and after the partition, each of the co-sharer came in his own exclusive share, whereupon also raised construction of the houses but a careful perusal of the testimony of Amar Nath reveals that upon alleged partition of the joint land, no share was given to the plaintiff Nirmal Dass and his other brothers, sisters or mother. Amar Nath disclosed that Nirmal Dass is residing at a distance of five/six houses from the suit property.
As already noted, parties may be living in separate parcels of the joint land. They may be living so, for a long time but this fact in itself does not make out that parties had partitioned their joint holdings. Hon'ble Apex Court in Md. Mohammad Ali (Dead) by Lrs. Vs Sri Jagdish Kalita & Ors. 2003 (2) Apex Court Judgments 473 (SC) has laid down that long and continuous possession in itself does not constitute adverse possession. Our Hon'ble High Court in Ram Niwas vs Jai Ram 2000(3) RCR (Civil) 738 has laid RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -5- down that when a piece of land is jointly owned by a number of cosharers and when no partition is effected, by merely raising construction on the joint land, defendants cannot oust the plaintiff who is a cosharer."
8. For coming to this conclusion, learned Ist Appellate court has also found as under:-
"12. ...........Generally various cosharers, especially those co-owners who have Abadi lands in common, do possess some exclusive shares, which sometimes may be in excess to their entitlement but this arrangement in itself does not amount to partition of the joint holdings. Infact, separate position is needed to carry on the affairs of their respective families by the co- shareres. Unless a partition occurs, every co-sharer is as much owner of the entire property as sole owner till it is partitioned. It has been observed by a Full Bench of our Honourable High Court in Ram Chander vs Bhim Singh & ors. 2008 (4) Civil Court Cases, 2 that:
'For the purpose of better management co- owners often hold separate possession of joint land but this separation of possession, without a corresponding intent, to sever the joint status of the joint owners do not confer a right upon a co- sharer in separate possession to assert his separate ownership - A joint owner is owner of RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -6- a specific share in the entire joint property but is not entitled to claim separate ownership of any specific and particular portion of the joint property till such time, as property remains joint.' It has further been laid down that:
'A co-sharers asserts joint title and possession even where other co-sharers/joint owners are in separate possession of different parcels of land and as a natural consequences, a co-sharer in possession of a specific area of joint property possesses the property for and on behalf of all other co-sharers/joint owners.' It has further been laid down that:
'A co-owner has an interest in the whole property and also in every parcel of it; (2) Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession; (3) A mere occupation of a larger portion or even an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all; (4) The above rule admits of an exception whether there is ouster of a co-owner by another; But in order to negative the RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -7- presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co- owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other; (5) Passage of time does not extinguish the right of co-owner who has been out of possession of the joint property except in the event of ouster or abandonment; (6) Every co-owner has a right to use the joint property in a husband-like manner not inconsistent with similar rights of other co-owners; (7) Where a co-owner is in possession of separate parcels under an arrangement consented by the other owners, it is not open to any body to disturb the arrangement without the consent of other except by filing a suit for partition.'
13. Hon'ble Apex Court in Re: M. Venkataramana Bebbar (D) By L.R.s Vs M. Rajagopal Hebbar & Ors.
2007 (2) RCR (Civil) 404 has laid down that:
'Despite a separation in joint status, parties may continue to possess the lands jointly unless a partition of the joint family property takes place by metes and bounds and a partition by metes and bounds occurs when a property is divided RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -8- by demarcating its areas to be held in severalty.' It has been defined by the Hon'ble Apex Court in Shub Karan Bubna @ Shub Karan Parsad Bubna vs Sita Saran Bubna & Ors. 2009 (4) RCR (Civil) 304 that:
1. 'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/co-parceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees - The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.
2. When all co-owners get separated, it is a partition - For example, where four brothers owning a property divide it amount themselves by metes and bounds, it is partition.'
9. The learned Ist Appellate Court was quite correct in the aforesaid observations which are based on the settled principles on the subject. Learned counsel for the appellant has not referred to any case law in support of his contention which could controvert the conclusions of the Ist Appellate court. The matter cannot be left in lurch forever RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document RSA-631-2011 (O&M) -9- because the co-sharers will not be able to deal with their property unless their exclusive share is determined by metes and bounds though in the evidence the parties have stated that they are in separate respective possession of the built-up property out of the joint land. The plaintiff- respondent No. 1 stated that the property was partitioned almost 30-35 years ago and the co-sharers have built up their houses on their respective shares and that nobody can interfere in the houses of each other. It was also stated that the no one has demanded the portion of his possession and the portion in possession of the appellant. These are the questions which can be raised at the time of partition by metes and bounds by making a prayer to respect the possession already with them, but if some of the co-sharers were in possession in excess of his share, that has to be safeguarded when the judgment and decree is implemented.
10. Learned Ist Appellate Court ultimately also determined the respective shares of the co-sharers as under:-
"20. The suit land was co-shared by Chhaju Ram son of Jawahar Lal to the extent of ½ share, Ujagar Ram son of Jassa Ram son of Jawahar Ram to the extent of 1/3 share and Lal Chand, Dev Raj, Ramji Dass, Madan Lal, Kishore Lal, Manohar Lal sons of Nazar Ram and Smt. Sibo widow of Nazar Ram son of Labhu Ram to the extent of 1/6th share. Both sons of Chajju Ram (namely Atma Ram and Dheera Ram) must inherit their father equally to the extent of ¼ share each (½ x ½ ).
RISHU KATARIA 2014.09.29 16:54 I attest to the accuracy and authenticity of this document
RSA-631-2011 (O&M) -10-
21. In other words, plaintiff alongwith his brothers Assa Ram, Labhu Ram, Mulkh Raj, Tirat Ram and Manna Ram and sisters Parkasho, Gurmeeto and Sheela being a successor of Dheera Ram is entitled to 1/4th share (½ x ½ ) in the suit land and is entitled to separate possession of his 1/4th share by metes and bounds."
11. The determination of share by the Ist Appellate Court has not been challenged in the instant appeal or during the course of arguments. No substantial question of law arises.
12. Dismissed.
September 23, 2014 ( R.P. NAGRATH )
rishu JUDGE
RISHU KATARIA
2014.09.29 16:54
I attest to the accuracy and
authenticity of this document