Punjab-Haryana High Court
Jug Lal And Others vs Raghbir Singh (Dead) Through His Lrs on 28 January, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA No.255 of 1993 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
RSA No.255 of 1993 (O&M)
Date of Decision:28.01.2014
*****
Jug Lal and others
. . . .Appellants
Versus
Raghbir Singh (Dead) through his LRs
. . . . Respondents
*****
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: Mr.L.N. Verma, Advocate,
for the appellants.
Mr.Kunal Dawar, Advocate,
for respondent Nos.2, 3, 5 & 6.
*****
RAKESH KUMAR JAIN, J.
The plaintiffs are in second appeal against the judgment of reversal.
The plaintiffs filed suit for possession of land measuring 53 kanals 18 marlas situated in the revenue estate of village Nangli, Tehsil Tohana, Distt. Hisar. Their case is that land measuring 131 kanals 1 marla comprised in Khewat No.87 and 352 kanals and 6 marlas comprised in Khewat No.147, as per jamabandis for the year 1979-80, situated in village Nangli, Tehsil Tohana, District Hisar was jointly owned by the parties to the suit and other co-shares. The co-sharers RSA No.255 of 1993 -2- effected a family partition of their joint holding in 1981-82 and entered into possession of specific field numbers. The factum of private partition was reported to the revenue authorities whereupon mutation No.771 was duly sanctioned on 19.3.1982 (Ex.P1) with the consent and concurrence of all the earlier co-sharers without objection from any one of them. As a result thereof, land measuring 53 kanals and 18 marlas comprised in Rect. No.111, Killas No.6/2(8-0), 14/1/2(0-6), 14/2(5-4), 15(8-0) and Rect. No.112, Killas No.9/2(7-0), 10/2(7-11), 11(8-0), 12(7-8) and 13/1(2-9) (hereinafter referred to as 'the land in dispute') fell to the share of the plaintiffs. However, Jani Ram, predecessor-in-interest of defendants No.1 to 6, forcibly reoccupied the land in dispute in May 1982 when it was lying vacant after the harvest of Rabi crop.
In their written statement filed by defendants No.1 to 6, besides raising multiple technical preliminary objections, it was urged on merits that the plaintiffs were co-sharers in the land in dispute and denied the partition for want of knowledge. It was also urged that they were occupying the land in dispute as tenant gair marusi and have not forcibly occupied it.
On the pleadings of the parties, the learned trial Court framed the following issues on 15.6.1985: - RSA No.255 of 1993 -3-
"1. Whether the plaintiffs have become owners of the suit land by way of family partition? OPP
2. If issue No.1 is proved whether the plaintiffs are entitled to possession of the suit land? OPP
3. Whether the plaintiffs are entitled to mense profit from the defendant, if so to what amount? OPP
4. Whether the suit is not maintainable in the present form? OPD
5. Whether the plaintiffs have got no locus standi to file the present suit? OPD
6. Whether the suit is bad for non-
joinder and mis-joinder of necessary parties? OPD
7. Whether the plaintiffs have got no cause of action to file the present suit? OPD
8. Whether the civil court has got jurisdiction to try the present suit? OPD RSA No.255 of 1993 -4-
9. Whether Sh. Jaini defendant was tenant under the plaintiffs if so to what effect? OPD.
10. Relief.
The plaintiffs examined Juglal and closed their evidence in affirmative whereas defendants examined Dharma (DW1), Rati Ram (DW2) and after tendering documents Ex.D2 and D3 closed their evidence. Nothing was produced by the plaintiffs in rebuttal evidence.
The learned trial Court decreed the suit of the plaintiffs observing that defendants No.1 to 6 had denied the partition only for want of knowledge which otherwise has been proved by the plaintiffs by placing on record copy of mutation No.771 sanctioned on 19.3.1982 (Ex.P1), copy of jamabandi for the year 1979-80 (Ex.P2), Khasra Girdawari (Ex.P3) and jamabandi (Ex.D1) for the year 1984-85. It was observed that copy of mutation depicts the ownership and possession of the plaintiffs on the basis of family settlement/partition. On the basis of revenue documents, the family/private partition was accepted. Insofar as the plea of tenancy raised by defendants No.1 to 6 is concerned, it was held that they were not proved to be tenants because the column of rent is blank which would otherwise prove the factum of tenancy.
RSA No.255 of 1993 -5-
The learned lower Appellate Court, however, allowed the appeal of the defendants in view of Section 123 of the Punjab Land Revenue Act, 1887 [for short 'the Act'] on the ground that after the private partition, no application was moved to the revenue authority for the purpose of affirmation and did not give any value to mutation Ex.P1 in which the factum of family partition was recorded. The Appellate Court relied upon the judgment of the Himachal Pradesh High Court rendered in the case of "Khem Dutt and others Vs. Palkia and another" 1982 PLJ (Himachal Pradesh) 391 and judgment of this Court in the case of "Arjan Singh and others Vs. Hem Raj and others" 1983 PLJ 56. As regards, the tenancy is concerned, it was held that Jani Ram predecessor-in-interest of defendants No.1 to 6, was in possession of suit land as gair marusi although the rate of rent has not been mentioned but the plaintiffs never filed any suit for ejectment against Jani Ram, being a trespasser.
Learned counsel for the appellants has submitted that the Ist Appellate Court has erred in reading the evidence on record, resulting into miscarriage of justice and has framed following substantial questions of law, which arises for adjudication of this case: -
"1. Whether failure of contesting respondents to challenge mutation Ex.P-1 sanctioned on the basis of RSA No.255 of 1993 -6- private partition and the subsequent entries of revenue records would imply acceptance of the factum of private partition?
2. Whether a person recorded as gair Marusi tenant at will could be recorded as tenant without there being any evidence on record about the mode/factum of payment of rent?
Insofar as the first question is concerned, it is not disputed by the defendants that the plaintiffs were co-sharers with them in the land in dispute. There is no dispute regarding mutation no.771 dated 21.7.1982, sanctioned on 19.3.1982, without objection from any co-sharer regarding the factum of private partition. On the basis thereof, girdawari entries have been changed w.e.f. Kharif 1982 but before the next crop, Jani Ram, predecessor-in-interest of defendants No.1 to 6, forcibly occupied the land in dispute in May, 1982.
The learned Appellate Court dismissed the suit of the plaintiffs on the ground that the plaintiffs did not seek affirmation of the private partition from the revenue authorities in terms of Section 123 of the Act. In this regard, RSA No.255 of 1993 -7- it would be relevant to refer to Section 123 of the Act, which reads thus: -
"Affirmation of partition privately affected: -
(1) In any case in which a partition has been made without the intervention of a Revenue-officer, and party thereto may apply to a Revenue-
officer for an order affirming the partition.
(2) On receiving the application, the Revenue-officer 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 section 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter."
There is no dispute that Chapter IX of the Act deals with the 'partition' of agricultural land through the intervention of Court and also recognizes partition effected privately by the co-sharers.
RSA No.255 of 1993 -8-
Chapter IV of the Act deals with 'records of rights and annual records' in which Section 34 forms part of 'procedure for making records'. It primarily deals with acquisition of a right for sanctioning of mutation in terms of Chapter VII of the Punjab Land Records Manual. There is no dispute that the plaintiffs brought to the notice of the revenue department the factum of private partition dated 21.7.1981, on the basis of which mutation No.771 (Ex.P1) was sanctioned on 19.3.1982 without objection from any co- sharer and also entered into exclusive possession of 53 kanals 18 marlas of land shown in the khasra girdawari.
The law recognizes that co-sharers in the joint holding can effect private partition of the land as per their shares and approach the Halqa Patwari to enter into register of mutation the factum of partition. In this regard, no formal application is required to be made as contemplated under Section 123 of the Act. After the entry is made in the register of mutation, it is placed before the revenue officer for the purpose of attestation and sanctioning and if any objection is raised, which the revenue officer considers to be valid, he would refuse to sanction the mutation, but if no objection is raised, then the mutation is sanctioned and its effect is reflected in the other revenue records. It is also manifestly clear that the revenue officer does not effect partition in case of private partition, rather he only affirms it. The learned RSA No.255 of 1993 -9- lower Appellate Court has erred in relying upon decision in the case of Khem Dutt and others (Supra) in which the partition was made with the intervention of the revenue officer and is not applicable to the facts of the present case. As regards, judgment in the case of Arjan Singh and others (Supra) is concerned, it was observed therein that "if partition of agricultural land takes place even by consent of the parties, it is recognised only when report is made to the Patwari and then proceedings are taken under the Land Revenue Act for finalization of partition in accordance with law. Admittedly, nothing of the sort was done in this case". Again the said judgment is not applicable because in that case, the private partition was not brought to the notice of the Patwari in any manner, whereas in the present case, it is very much brought to the notice of the revenue authorities by way of application dated 21.7.1981 on the basis of which, mutation No.771 (EXP1) was duly sanctioned on 19.3.1982 without any objection and the parties entered into their respective exclusive possession thereafter.
Learned counsel for the respondents has also relied upon judgment of this Court in the case of "Harbans Lal Vs. Gurdev Singh" 2010 (2) RCR (Civil) 769 but again the said judgment is not applicable because it was found therein that land was shown to be joint in the jamabandi to which presumption of correctness is attached and no evidence in RSA No.255 of 1993 - 10 - rebuttal was to lead to challenge its correctness. In view thereof, relying upon judgment of this Court in the case of "Darbara Singh and another Vs. Gurdial Singh" 1994(1) RRR 459, it was held that where partition takes place without intervention of revenue officials, then it has to be brought to the notice of the revenue officers for confirmation.
Learned counsel for the appellants has also referred to a judgment of this Court in the case of "Ajmer Singh Vs. Dharam Singh" 2006(1) PLJ 442 in which this Court has held that failure to seek affirmation of private partition, if otherwise proved on record, cannot be negated only for reason of non-affirmation from revenue authorities. In the said case, suit was filed for pre-emption on the basis of being a cosharer and the evidence was led that the plaintiff was no more a co-sharer because the land was already privately partitioned. The issue was with regard to the recognition of private partition about which this Court has held that since the word has been used as 'may' in Section 123 of the Act, therefore, the provision is directory. Again this judgment is not relevant for the purpose of this case because admittedly, the plaintiffs had brought to the notice of the revenue authorities about the factum of private partition on the basis of which land in dispute was partitioned between the parties and mutation No.771 (Ex.P1) was duly sanctioned by the revenue officers without any objection by any one of RSA No.255 of 1993 - 11 - the co-sharers. The parties thereafter, entered into their respective possession and the suit for possession had to be filed when other co-sharer namely, Jani Ram (predecessor-in- interest) forcibly entered into possession.
Thus, in view of the aforesaid discussion, the first question of law raised by the plaintiffs is decided in affirmative in their favour holding that sanctioning of mutation at the instance of the plaintiffs about the private partition is a sufficient compliance of Section 123 of the Act.
Insofar as the second question of law is concerned, admittedly, defendants No.1 to 6 are not recorded paying any rent to the plaintiffs. All that has been recorded is their status as gair Marusi tenant (tenant at will). The Supreme Court in the case of "Natha Singh and others Vs. The Financial Commissioner, Taxation, Punjab and others" 1976 PLJ 293 says that in the absence of payment of rent or in the absence of material to show that there is a contract absolving the latter of the liability to pay rent, would not clothe the latter person in possession with the status of a tenant. Similarly in the case of Jarnail Singh (deceased) Vs. The Dialpur Bhaika Cooperative Agricultural Service Society Ltd. Dialpur Bhaika" 1983 PLJ 99, it has been held that tenancy is always a matter of contract, may be either expressed or implied and in order to find out the status of a tenant-at-will, reference has to be made to the column of rent. RSA No.255 of 1993 - 12 - If no evidence is found regarding payment of rent, the possession is not as a tenant. In the case of "Ram Rakha and another Vs. Pritam Singh" 1984 PLJ 83, it has been held that if there is an entry in the jamabandi of tenant-at-will without payment of rent, no conclusion can be drawn that his possession is of a tenant. In the case of "Surjit Singh Vs. The Dialpura Bhaika Cooperative Agricultural Service Society Ltd. Dialpura Bhaika" 1984 PLJ 554, it has been held that any occupant of agricultural land other than owner is generally entered as tenant-at-will but the payment of rent determines status of occupant. In the case of "Jit Singh Vs. Bhupinder Pal Kaur and others"
1993 PLJ 53, it has been held that the relief of possession could be declined if defendant either pleaded tenancy or adverse possession and prove the same.
Since, in the present case, the defendants have failed to prove their status over the land in dispute of being a tenant, nor could they establish that they have become the owners by way of adverse possession, the suit for possession filed by the plaintiffs has to be decreed. Consequently, this question of law is also decided in affirmative in favour of the plaintiffs holding that in order to find out the status of a tenant-at-will, recorded in the revenue record, the column of rent is to be considered. If the tenant-at-will is not paying any rent either in cash or by way of share in crop, then he RSA No.255 of 1993 - 13 - would not be considered to be a tenant over the land in dispute.
No other point has been urged on behalf of the parties.
In view of the aforesaid discussion, the present appeal is, thus, allowed and judgment and decree of the Appellate Court is set aside and that of the trial court is restored with costs.
(RAKESH KUMAR JAIN) 28.01.2014 JUDGE Vivek Pahwa Vivek 2014.01.31 09:48 I attest to the accuracy and integrity of this document