Punjab-Haryana High Court
Ram Kishan And Others vs Daya Nand And Others on 31 August, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA No.2241 of 1991 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No.2241 of 1991 (O&M)
Date of decision:31.08.2018.
Ram Kishan and another ... Appellants
Vs.
Daya Nand and others ... Respondents
RSA No.2242 of 1991 (O&M) Siri Bhagwan and others ... Appellants Vs. Daya Nand and others ... Respondents CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Umesh Aggarwal, Advocate for the appellants.
Mr. Prateek Gupta, Advocate for the respondents.
AMIT RAWAL J.
This order of mine shall dispose of two Regular Second Appeals bearing Nos.2241 and 2242 of 1991.
The appellant-defendants Nos.1 and 2 are in Regular Second Appeals against the judgment and decree dated 03.10.1991 of the Additional District Judge, whereby, suit for pre-emption filed by the 1 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {2} respondent-plaintiffs, dismissed by the trial Court, has been decreed.
The respondent-plaintiffs instituted the suit for possession by way of pre-emption on 04.01.1989 in respect of agricultural land comprised in khewat no.141 khata no.164 rect.killa no.121/15/1(0-12), 14(7-8), khasra No.359 (0-2) and khata no.165 rect and killa no.31/9(7-11), kite 4 total 15 kanals 13 marlas to the extent of 3/20 share i.e. 2 kanals 10 marlas and khewat no.142 khata no.166 rect. and killa no.8/15(7-12), 16/1(3-3), 9/23(6-
16), 23/24/1(4-18), 24/3(1-11), 57/15/4(3-4), 16(7-7) khasra no.121(0-13), 285(0-2), total 35 kanals 13 marlas to the extent of 27/160 share i.e. 6 kanals 4 marlas total measuring 8 kanals 14 marlas situated in village Luksar, Tehsil Bahadurgarh, District Rohtak on the premise that plaintiffs and defendants have been co-sharers of the same khewat. Defendant no.3- Rajinder Singh son of Raghbir sold the disputed land out of the joint khewat to defendants no.1 and 2 for a sale consideration of `49,500/-, therefore, the law of pre-emption which was in vogue, first right of purchase vested with the co-sharers, i.e., plaintiffs. It was averred that defendants no.1 and 2 were asked several times to admit the claim of the plaintiffs on payment of `49,500/- plus the costs of stamp and registration charges but did not accede and therefore, the suit was filed.
Defendants No.1 and 2 filed joint written statement raising various preliminary objections vis-a-vis court fee, jurisdiction etc. On merit, it was alleged that at the time of registration of the sale deed on 26.10.1988, plaintiffs were present in the office of Registrar. It was denied that plaintiffs 2 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {3} were co-sharers in the disputed khewat at the time of sale nor at the time of filing of present suit. Replication was filed controverting the allegations made in the plaint.
Since the parties were at variance, the trial Court framed the following issues:-
"1. Whether the plaintiffs have superior right of pre-emption to pre-empt the suit land in question?OPP
2. Relief."
The plaintiffs examined Daya Nand as PW1 and tendered jamabandi for the year 1984-85 as Ex.P1 and Ex.P.2 and sale deed dated 26.10.1988 as Ex.P3, whereas, the defendants examined Jit Singh as DW1 and tendered Naksha 'B' as Ex.D1. Naksha G. as Ex.D2, order of S.D.M, Bahadurgarh as Ex.D3, order dated 28.3.1990 of Assistant Collector Ist Grade, Bahadurgarh as Ex.D4 and site plan as Ex.D5, order dated 14.3.1990 of A.C.Ist Grade as Ex.D8, order dated 28.3.1990 of A.C.Ist Grade as Ex.D9 and copy of pedigree table as Ex.10 and Ex.D11.
The trial Court on the basis of evidence brought on record did not agree with the contention of plaintiffs that the status of the plaintiffs with defendants was of co-sharers as partition proceedings had already been commenced and few days after filing of the suit, naksha bey i.e., site plan suggesting the mode of partition before ordering sanad takshim i.e., final document of partition had been prepared.
The Lower Appellate Court in appeal preferred by the plaintiffs decreed the suit as noticed above, therefore, the appeal by defendants no.1 3 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {4} and 2.
Mr. Umesh Aggarwal, learned counsel appearing on behalf of the appellant-defendants submitted that judgment and decree of the Lower Appellate Court is not sustainable in the eyes of law except for final document of partition i.e. naksha zeem (zeal) which was prepared post decree, i.e., on 27.3.1992, whereas the suit was decreed on 31.10.1990 but fact of the matter is that naksha bey suggesting the mode of partition had already been prepared during the pendency of the suit, i.e., on 16.01.1989 as the suit was filed on 04.01.1989, in essence, plaintiffs were aware of the partition proceedings and therefore, did not have the locus standi to institute the suit.
In support of the aforementioned contention, relied upon the judgment rendered by this Court in Zora Singh Vs. Laxmi Narain and others 2014(62) RCR (Civil) 787, wherein, it has been held that plaintiffs had lost their status of co-sharers on confirmation of proposed mode of partition much before passing of the decree by the trial Court, in other words, it was stated that right of pre-emption was not alive till passing of decree by the trial Court, therefore, the suit could not have been decreed.
Per contra, Mr. Prateek Gupta, learned counsel appearing on behalf of the respondent-plaintiffs submitted that naksha bey is not a final document of partition, it is only sanad takshim as per the provisions of Punjab Land Revenue Act, 1887 (in short "1887 Act") and status of the parties at the time of filing of the suit on 04.01.1989 was of co-sharers in the 4 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {5} joint khewat and therefore, the judgment and decree of the Lower Appellate Court being the last Court of facts and law is liable to be upheld.
In support of the aforementioned contention, relied upon the judgment rendered by this Court in Jamil Vs. Hassan Mohammad and others 2014(3) RCR (Civil) 324 to contend that even if the possession as per the site plan had been delivered to the parties before the partition was made effective, it would not extinguish the status as co-sharer. The partition is permitted only when naksha zeem is called and approved, in other words, the separation of jointness in status will come into force with the delivery of possession as per the date fixed in the instrument of partition and on similar lines, Jeet Ram Vs. Sadhu Ram 2013(22) RCR (Civil) 653, wherein while interpreting the provisions of Section 123 of 1887 Act, it was held that naksha bey which has effectively been relied upon by the defendants cannot be amounting to cessation of ownership. It would be a sanad takshim, i.e., instrument of partition which would create division.
On similar lines, also relied upon Division Bench judgment of this Court in Amar Khan and others Vs. State of Punjab and others 2009 (1) Recent Civil Reports (Civil) 741.
Mr. Prateek Gupta also laid emphasis on the judgment cited by the appellants in Zora Singh's case (supra), wherein, the Court held that status of co-sharer would cease to exist only on confirmation of proposed mode of partition before passing of the final decree. However, in the instant case, for the sake of repetition, sanad takshim, i.e, final document of 5 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {6} partition was passed on 27.03.1992, whereas, the suit had already been dismissed, vide judgment and decree dated 31.10.1990 and thus, urged this Court for upholding the findings rendered by the Lower Appellate Court.
I have heard the learned counsel for the parties, appraised the judgments and decrees as well as record of both the Courts below.
Section 15 of Punjab Pre-emption Act, 1913 (in short "1913 Act") at the relevant point of time before it was repealed empowered the co- sharer to pre-empt the sale deed by other co-sharer in respect of land arising out of joint khewat by depositing the amount of sale deed. However, would be precluded from maintaining the suit in case the partition proceedings had already been culminated by issuance of sanad takshim, i.e. final document of partition. After repealing the aforementioned Act, right to pre-empt the land only vested with the tenants.
Now the question raised in the present appeals which has already been answered by the Appellate Court against the appellant- defendants is whether the preparation of naksha bey on 16.01.1989, i.e., during the pendency of the suit which was filed on 04.01.1989, would be a final document of partition and leads to cessation of co-sharer between the plaintiffs and defendant no.3 or not. In order to answer the aforementioned question, I would be dealing with procedure and the judgments cited at bar.
Section 111 of 1887 Act provides the procedure for submission of an application for partition by a joint owner or joint tenant. An application can be submitted to revenue officer for partition of the share in the land or tenancy subject to the restriction and limitations on partition 6 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {7} proposed in Section 112 of 1887 Act, which is not applicable in the present case. Section 121 of 1887 Act deals with the preparation of instrument of partition, when the partition proceedings are completed, in essence, 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, whereas, as per Section 122, owner and tenant shall be entitled to the possession thereof against the other parties to the proceedings. For the sake of brevity, Sections 121 and 122 of 1887 Act read as under:-
"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."
7 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {8} Before drawing the instrument of partition as per Section 116 of 1887 Act, the revenue officer shall ascertain the questions with regard to the property to be divided or mode of partition. For the sake of brevity, Section 116 reads as under:-
"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."
The revenue officer on receipt of the application will call for naksha alf and thereafter, the parties will be at liberty to file the objections. Naksha alf only refers to the share of the parties, land in their possession and excess or deficiency is to be made good. Thereafter, the parties are called upon to file the objections. Mode of partition (takika taksheem) in which the land is to be partitioned is prepared on the basis of statements of the parties and thereafter, the mode of partition is approved. Any effected party can also avail the right of appeal. Thereafter, naksha khe is asked for and the parties are also at liberty to file the objections. After the decision of naksha khe and its approval. The purpose of nakhsa khe is that all the co- sharers are identified to be possessing the particular area on completion of 8 of 11 ::: Downloaded on - 08-10-2018 00:54:59 ::: RSA No.2241 of 1991 (O&M) {9} the partition and thereafter, naksha zeem is called and finally, instrument of partition is prepared under Section 121 of 1887 Act.
Naksha bey is prior to issuance of naksha khe. Naksha kha and naksha bey are also almost like a preliminary decree and thereafter, while drawing final decree, naksha zeem is prepared. In the instant case, the instrument of partition, thus, at the time of decretal of the suit was not prepared. Concededly, the same was prepared on 27.03.1992, much after dismissal of the suit, i.e., on 31.10.1990. This is what the import of the judgment and decree of the Lower Appellate Court.
In view of such position, judgment relied upon in Zora Singh's case (supra) does not come to the aid of the appellants, for, non- maintainability of the suit as in other judgments, it has been consistently held that status of the co-sharers ceased to exist only after the final partition order is passed but in the present case, there is no such partition order. Thus, question posed hereinabove is answered in the aforementioned manner.
Before parting with the judgment, I cannot remain oblivious of the fact that during the pendency of the appeals, two orders dated 12.11.1991 and 12.12.1991 were passed. For the sake of brevity, the same read as under:-
12.11.1991 "Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Anil Khetarpal, Advocate.
Notice.
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RSA No.2241 of 1991 (O&M) {10}
Dispossession stayed ad interim. Notice regarding stay for 5.12.1991."
12.12.1991 Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. Subhash Goel, Advocate.
Mr. R.S.Mittal, Senior Advocate with Mr. P.K.Sharma, Advocate.
After hearing the learned counsel for the parties, the ad-interim stay order is made absolute subject to the following conditions:-
i) The appellants will furnish security for due performance of the decree ultimately passed by this Court within three months from today. The security will be accepted by the executing Court after notice to the decree-holder-respondents.
ii) The respondent-decree-holders are permitted to withdraw the pre-emption amount and the sale price deposited by them and the same will be re-deposited as and when directed by this Court while deciding the appeal.
C.M. is disposed of accordingly."
From the perusal of the aforementioned orders, respondent- decree holders were permitted to withdraw the pre-emption amount.
In view of the aforementioned, two months time is granted to the decree holders to re-deposit the amount failing which judgment and decree of the Lower Appellate Court affirmed by this Court will become un- executable.
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RSA No.2241 of 1991 (O&M) {11}
As an upshot of my findings, I do not find any illegality and perversity in the judgment and decree of the Lower Appellate Court being the last Court of facts and law, much less no substantial question of law arises for adjudication of the present appeal.
No ground is made out for interference in the impugned judgment and decree.
The appeals are dismissed.
(AMIT RAWAL)
JUDGE
August 31, 2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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