Himachal Pradesh High Court
Deep Ram & Others vs Bhagat Ram & Others on 3 April, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RSA Nos.83 and 85 of 1996.
Judgment Reserved on :13.03.2018
Date of decision: 03.04.2018
.
1. RSA No.83 of 1996
Deep Ram & Others ....Appellants-Plaintiffs
Versus
Bhagat Ram & Others ....Respondents-Defendants
2. RSA No.85 of 1996
Deep Ram & Others ....Appellants-Defendants
Versus
Bhagat Ram & Others ....Respondents-Plaintiffs
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?
Yes.
For the Appellants: Mr.G.D. Verma, Senior Advocates with
Mr.B.C. Verma, Advocate, in both the
appeals.
For all Respondents: Mr.Bhupender Gupta, Senior Advocate
in RSA No.83 of 1996 with Ms.Rinki Kashmiri, Advocate.
&
In RSA No.85 of 1996 for Respondents Nos.1 to 6, 8(a) to 8(c), 9(a)
to 9(c), 10, 11, 23(a), 24(a) to 24(g), 28(a) to 28(f), 29, 32 and 33.
Sandeep Sharma,J.
Both these appeals are being disposed of by a common judgment as they call for determination of common question of law. Moreover, the identity of the parties in both the appeals is the same.
RSA No.85 of 19962. Instant appeal is directed against the judgment and decree passed by learned Additional District Judge, Solan, in Civil Appeal No.11-NS/13 of 93, dated 10.11.1995, affirming Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 05/04/2018 22:55:19 :::HCHP 2the judgment and decree dated 29.8.1992 passed by learned Sub Judge Ist Class, Arki, District Solan, in Civil Suit No.95/1 of 1990, whereby suit for declaration and injunction having .
been filed by respondents-plaintiffs No.1 to 5 came to be decreed.
3. Certain facts, as emerged from the record, are that the respondents-plaintiffs (hereinafter referred to as the 'plaintiffs') filed a suit for declaration that the suit land as described in the judgments of both the Courts below, is jointly owned and possessed by the parties and no partition so far has been effected till date and as such appellants-defendants (hereinafter referred to as the 'defendants') have no right and interest to claim themselves to be the exclusive owners of the property. Plaintiffs further averred that defendant No.1, in connivance with the revenue officials, got mutation No.352 attested at the back of plaintiffs, whereby it came to be wrongly recorded that the suit land stands partitioned and separate possession of their respective shares has been allotted to the parties. Factum with regard to attestation of mutation, as referred above, only came to the notice of plaintiffs when defendants threatened to dispossess them from the land, which is in their possession.
4. Defendants, taking preliminary objections with regard to maintainability, jurisdiction, limitation, valuation and estoppel, opposed the aforesaid claim put forth by the plaintiffs. Defendants further submitted before the Court below that earlier suit land was jointly owned and possessed by the ::: Downloaded on - 05/04/2018 22:55:19 :::HCHP 3 parties, but subsequently private partition was effected interse the parties and after that they all are in possession of their respective shares respectively. As per defendants, partition .
allegedly held interse the parties was reported to Halqua Patwari on 3rd of June, 1981, who, recorded the same in revenue record in accordance with the procedure, whereafter the matter was verified by the Field Kanungo. Defendants further submitted that mutation regarding private partition was attested on 21.8.1982 and parties are in exclusive possession as independent owners qua their respective shares strictly in terms of private partition effected interse parties.
Defendants further claimed that they have spent huge amount for developing the land and now the plaintiffs are claiming themselves to be the joint owners of the suit property which otherwise is in their possession. Defendants also claimed that all the parties were intimated at the time of partition and all of them, of their own free will, entered into the family arrangement and at no point of time raised objection and as such mutation rightly came to be attested.
5. Proforma defendants No.20 and 23 also filed written statement separately and admitted the plea taken by the plaintiff as put forth in the plaint.
6. Plaintiffs by way of replication, while reasserting their claim put forth in the plaint, also stated that the partition was not effected and mutation regarding partition was effected by the A.C. 2nd Grade, whereas, as per law, he had no authority to effect the partition and attest the mutation.
::: Downloaded on - 05/04/2018 22:55:19 :::HCHP 4Plaintiffs claimed that since partition was not conducted in accordance with law by the competent authority and the mutation was not attested by the AC 1st Grade, as required .
under law, mutation is liable to be quashed and set aside.
7. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
"1. Whether the suit land is in the joint ownership and possession of the parties, as alleged? OPP.
2. Whether the mutation No.352 as reflected in the jamabandi is illegal, null & void? OPP.
3. Whether the suit is time barred? OPD.
4. Whether this Court has no jurisdiction to try the suit, as alleged? OPD.
5. Whethr the suit is not maintainable, as alleged?
OPD.
6. Whether the suit land had already been partitioned through a private partition, as alleged? OPD.
7. Relief.
8. Subsequently, learned trial Court vide judgment dated 29.8.1992 decreed the suit of the plaintiffs declaring that the land as described in the suit is jointly owned and possessed by the parties and no private partition so far has been effected and mutation No.352 and the subsequent entries in the record of rights, pursuant to the mutation, attested are illegal and are set aside with costs.
9. Being aggrieved and dis-satisfied with the aforesaid judgment and decree passed by learned trial Court, defendants preferred an appeal before the learned Additional ::: Downloaded on - 05/04/2018 22:55:19 :::HCHP 5 District Judge, Solan, which also came to be dismissed vide judgment dated 10.11.1995.
10. Being still aggrieved and dissatisfied with the .
aforesaid judgment passed by learned Additional District Judge, Solan, defendants have approached this Court by way of instant proceedings, seeking therein dismissal of the suit having been filed by the respondents-plaintiffs, after setting aside judgments and decrees passed in their favour by the Courts below.
RSA No.83 of 1996.
11. Present appeal has been filed by the appellants-
plaintiffs, (who were appellants-defendants in RSA No.85/1996), laying therein challenge to the judgment and decree passed by the learned Additional District Judge, Solan, in Civil Appeal 12-NS/13 of 1993, dated 10.11.1995, affirming the judgment and decree passed by learned Sub Judge Ist Class, Arki in Civil Suit No.71/1 of 1991, dated 29.8.1992, whereby suit having been filed by the plaintiffs for permanent prohibitory injunction came to be dismissed on account of maintainability.
12. Plaintiffs, while seeking permanent prohibitory injunction restraining the defendants from interfering over the suit land comprised in Khasra No.66, measuring 3 bighas 17 biswas and Khasra No.367/194, measuring 0-2 biswas, which is also the subject matter of suit in RSA No.85 of 1996, situate in Mauja Banjan Pargana Matyanj Kalan, Tehsil Arki, District Solan, H.P., alleged that suit land has fallen to his share by ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 6 way of private partition between the parties, which has further been affirmed by the Revenue Officials and as such the defendants (plaintiffs in Civil Suit No.95/1 of 1990) is liable to .
be restrained from causing interference in the suit land.
Plaintiff further claimed that private partition effected interse parties has been affirmed by Revenue Officials and on the basis of same mutation has been attested in his favour.
Plaintiff further claimed that the defendants are threatening to remove the 'Chill' trees and wheat crop sowed by them over the suit land and as such they deserves to be restrained by way of permanent prohibitory injunction. Defendants (plaintiffs) contested the aforesaid suit having been filed by the plaintiff by taking objections of bad for non-joinder of parties, barred under Section 10 CPC, locus standi and cause of action. On merits, defendants disputed the private partition, if any, interse parties and claimed that the plaintiff, in connivance with Revenue Officials namely; Moti Lal, Patwari and one Mr.Bali, Naib Tehsildar, got mutation effected in the revenue records, but that being done in illegal manner, is not binding upon them. Defendants further claimed that no partition took place between the parties and Civil Suit bearing No.91/1 of 1990 has been filed by them in the Court for permanent prohibitory injunction, which is still pending.
Defendants further claimed that the suit land is in joint possession of the parties and they never threatened to remove any tree.::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 7
13. By way of replication, the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint and controverted the contrary .
averments made in the written statement.
14. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
"1. Whether the plaintiff is owner in possession of the suit land? OPP.
2. Whether the suit is bad for non-joinder of necessary parties? OPP.
3. Whether the suit is hit by Section 10 CPC as alleged? OPD.
4. Whether the suit is not maintainable, as alleged ? OPD.
5. Relief."
15. Subsequently, learned trial Court vide judgment dated 29.8.1992 dismissed the suit of the plaintiff being not maintainable.
16. Being aggrieved and dis-satisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiff preferred an appeal before the learned Additional District Judge, Solan, which also came to be dismissed vide judgment dated 10.11.1995.
17. Being aggrieved and dissatisfied with the aforesaid judgment passed by learned Additional District Judge, Solan, plaintiff approached this Court by way of instant proceedings, praying therein that the suit filed by him be decreed.
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 818. This Court vide order dated 19.12.1996, admitted both the aforesaid appeals on the same and similar substantial questions of law, which are as under:-
.
"1. Whether the provisions of Chapter-9 of HP Land Revenue Act, containing sections 131 to 138 are not applicable in the present case?
2. Whether the private partition and settlement as arrived at between the co-sharers is not required to be affirmed by a Revenue Officer?
3. Whether the land in suit has been partitioned between the parties and they are no longer joint owners over suit land?
4. Whether the private partition is not required to be affirmed by the Revenue Officer to the rank of Assistant Collector IInd Grade?
5. Whether rights acquired by way of private partition have to be incorporated in the record of rights by making a report?
6. Whether the parties to the suit are bound by their admissions and on the principle of estoppel, the Respondents are bound by the same?"
19. Before exploring answer to the aforesaid substantial questions of law, it may be noticed that during the pendency of present appeal, an application bearing CMP No.148 of 1996 came to be filed in RSA No.85/1996 on behalf of appellants-applicants under Order 41 Rule 27 of the Code of Civil Procedure, seeking therein permission to tender in evidence the copy of mutation No.73 attested on 21.8.1982 pertaining to Mauja Pakauti, copies of Rapat Roznamcha Nos.392 and 393, dated 3.6.1981 and copies of Jamabandies from the year 1982 till date of the land situate at Mauja Pakauti and Banjan.
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 920. By instant application, appellants-defendants reiterated that private partition had already been taken place between the parties vide Report No.392 with respect to the .
land situate at Mauja Banjan and Report No.393 was lodged with respect to land situate at Mauja Pakauti and this fact was reported to Patwari Halqua by the parties on 3.6.1981.
Appellants-applicants further claimed that consequent to aforesaid Report Nos.392 and 393, dated 3.6.1981, mutation No.73 came to be entered with respect to land at Mauja Pakauti and another mutation No.352 came to be entered with respect to land at Mauja Banjan. In the said application, appellants-defendants further stated that mutation No.73 with respect to land at Mauja Pakauti came to be attested on 21.8.1982 by A.C. 2nd Grade, Tehsil Arki, whereby land of the share of the appellants-applicants on the basis of private partition was mutated in favour of the respondents. Similarly, land at Mauja Banjan came to be partitioned amongst the parties vide mutation No.352 which was also attested by A.C. 2nd Grade on same date i.e. 21.8.1982 at Mauja Mangu.
21. This Court vide order dated 19.12.1996 ordered that the application shall be considered and decided at the time of final hearing.
22. Now, this Court shall proceed to decide the substantial questions of law, referred hereinabove. All the abovementioned substantial questions of law being interconnected are taken up together for adjudication.
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 1023. Mr.G.D. Verma, learned Senior Counsel representing the appellants-defendants, vehemently argued that learned Courts below while decreeing the suit of the .
plaintiffs have mis-read, mis-construed and mis-appreciated the evidence, as a consequence of which erroneous findings to the detriment of defendants have come on record and as such same deserves to be quashed and set aside. While referring to the documentary evidence adduced on record i.e. Ex.PW-1/A mutation No.352 and Ex.DY Copy of Nakal Roznamcha dated 3.6.1981, Mr.Verma strenuously argued that it stand duly proved on record that the suit land was partitioned amongst all the co-sharers and thereafter mutation was also sanctioned.
He further contended that pursuant to the attestation of mutation on the basis of partition/family arrangement arrived at interse parties all the parties to the suit are in their exclusive possession. While specifically referring to Ex.DY, copy of Nakal Roznamcha dated 3.6.1981, Mr.Verma contended that all the co-sharers jointly made report to the Patwari that their land has been partitioned on the basis of which mutation came to be recorded. Learned Senior Counsel further contended that private partition/family arrangement arrived interse parties was not required to be affirmed by the Revenue Officer and as such findings of learned Courts below are contrary to provisions of Chapter-9 of the Himachal Pradesh Land Revenue Act, 1953 (hereinafter referred to as the 'Act').
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 1124. Mr.Verma, learned Senior Counsel further contended that the plaintiffs-respondents are bound by their own admissions as made by them during the course of .
attestation of mutation No.73 of Mauja Pakati, dated 21.8.1982 and mutation No.352 dated 21.8.1982 of Mauja Banjan, as such they cannot be allowed to take undue advantage over the appellants. Learned Senior counsel further contended that mutation in the case at hand was attested in the year 1982, whereas suit came to be filed in the year 1990 and as such same being barred by limitation ought to have been dismissed by the Courts below.
25. Mr.Bhupender Gupta, learned Senior Counsel, representing the respondents-defendants, while refuting the aforesaid submissions having been made by learned Senior Counsel for the plaintiffs-appellants, contended that there is no illegality and infirmity in the judgments and decrees passed by the learned Courts below and the same deserve to be upheld. Mr.Gupta further contended that though it stands duly proved on record that no family partition was effected interse parties, but even if, for the sake of arguments it is presumed that partition interse parties was effected by way of family arrangement, the same has no validity because admittedly private partition, if any, effected interse parties was required to be affirmed in terms of Section 135 of the Act, but in the case at hand no such affirmation of private partition was effected by the competent Revenue Officer. He further contended that as per Section 135 of Chapter-9 of the Act, ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 12 partition, if any, made without the intervention of Revenue Officer is required to be affirmed by the Revenue Officer, who, after having received application in this regard, is required to .
make inquiry and if he finds that the partition has infact been made, he can pass an order affirming it and proceed under Sections 131, 132, 133 and 134, or any of those sections. He further contended that also it is also not in dispute in the present case that mutation No.352 was attested by Assistant Collector 2nd Grade, but as per provisions contained in the Act mutation could only be effected by the Revenue Officer not below the rank of Assistant Collector 1st Grade and as such mutation, if any, attested by the unauthorized officer is not binding on the parties being void ab initio.
26. Lastly, Mr.Gupta contended that since mutation No.352 was attested by incompetent officer in the year 1982, it was not required to be laid challenge by the appellants-
defendants being void ab initio and as such there is no force in the contention of Mr.Verma, learned Senior Counsel representing the appellants-defendants that the suit filed by the plaintiffs ought to have been dismissed on the ground of limitation. He further contended that otherwise also there is no bar under law to lay challenge to mutation which is per se illegal, by way of suit for declaration, whereby, plaintiffs, being threatened by the defendants under garb of mutation, approached trial Court, seeking therein declaration that the mutation is illegal.
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 1327. I have heard learned Senior Counsel for the parties and gone through the record.
28. In nutshell, case of the appellants-defendants is .
that suit having been filed by the plaintiffs ought to have been dismissed by the Courts below after having perused Ex.PW-
1/A i.e. mutation No.352 and Ex.DY, copy of Nakal Rapat Roznamcha dated 3.6.1981, whereby AC 2nd Grade attested mutation showing plaintiffs as well as defendants in the exclusive possession of their respective shares pursuant to the family arrangement/private partition arrived at interse them.
On the other hand, case of respondents-plaintiffs is that suit land is still joint between the parties and at no point of time partition, if any, has taken place between the parties.
Plaintiffs further claimed that mutation No.352 Ex.PW-1`/A is illegal because same was attested by Officer, who was not authorized under the Act to attest the mutation.
29. Question which needs to be decided in the instant proceedings is that "Whether private partition, if any, arrived at between the parties was required to be confirmed by Revenue Officer and whether mutation No.352 Ex.PW-1/A was attested by the competent officer?" Partition of the suit land interse parties is seriously disputed by the plaintiffs, but appellants-defendants with a view to prove private partition interse parties adduced on record oral as well as documentary evidence. Shri Deep Ram i.e. power of attorney of his father Shri Hari Ram stated before the Court below that the suit was partitioned and it was given effect in the revenue record in the ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 14 year 1982. He further contended that private partition/family arrangement was executed interse parties with their mutual consent and thereafter agreement remained in possession of .
one of co-sharer namely; Roop Chand. At this stage, it may be noticed that private partition/family arrangement allegedly arrived interse parties was not placed on record. This witness in his cross-examination claimed that agreement of private partition/family partition remained in possession of one Shri Roop Chand and as such he could not produce the same in the Court. Interestingly, this witness, in his cross-examination, while denying suggestion put to him that no such written agreement of family partition was executed, admitted that said Roop Chand died in the year 1980, but, to the contrary, perusal of Ex.DY i.e. copy of Nakal Rapat Roznamcha dated 3.6.1981, suggest that all the co-sharers of Khata Nos.3,6,7,8, & 9, personally presented themselves before the Patwari in Patwarkhana and got registered a rapat that their family partition has been effected and it be accordingly registered for partition and they all agreed to it. Similarly, Ex.P2 i.e. the copy of Nakal Rapat Roznamcha Vakyati pertains to year 1979- 80, dated 8.12.1979, wherein Naginder son of Gita Ram has made a rapat to the Patwari that his real brother Roop Chand son of Gita Ram has expired on 8.11.1979 leaving behind three sons; namely; Om Parkash, Tulsi, Ramesh Chand and three daughters namely; Nandi Devi, Heera Devi, Shakuntala and his widow Saraswati and as such mutation of inheritance qua the land situated in Kati in Banjan be registered. Though ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 15 defendants while placing reliance upon documents Ex.P2 and Ex.DY coupled with his own statement, made an endevaour to prove that private partition was effected and reduced into .
writing and thereafter the same was handed over to one of the co-sharers Roop Chand, but bare perusal of Ex.P-2 clearly suggests that Roop Chand had expired on 8.12.1979 and as such version put forth by DW-1 that partition allegedly arrived interse parties in the year 1981 was handed over to Roop Chand cannot be accepted. It is not understood that when Roop Chand had passed away on 8.12.1979, where was the occasion for the defendants to keep the private partition/family arrangement with Roop Chand. In view of aforesaid contradiction, story put forth by the defendants with regard to execution of private partition/family arrangement does not appear to be correct and as such Courts below rightly rejected the same.
30. Apart from above, mutation No.352 was attested by DW-2 Shri I.N. Bali, exercising the powers of A.C. 2nd Grade, in the presence of parties. Chapter-9 of Himachal Pradesh Land Revenue Act, 1953 specifically deals with the partition between the co-shares. Undisputedly, there are different modes of partition, as has been envisaged under head 'Partition' from Sections 122 to 138 of the Himachal Pradesh Land Revenue Act, which are reproduced hereinbelow:-
"Partition"
"122. Effect of partitions of estates and tenancies on joint liability for revenue and rent. -(1) A ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 16 partition of land, either under this Chapter or otherwise, shall not, without the express consent of the Financial Commissioner, affect the joint liability of the land or of the land-owners thereof for the revenue payable in respect of the land, or operate to create a new estate, and, if any conditions are attached to that consent, those .
conditions shall be binding on the parties to the partition.
(2) A partition of a tenancy shall not, without the express consent of the land-lord, affect the joint liability of the co-sharers therein for the payment of the rent thereof.
123. Application for partition. - Any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if-
(a) at the date of the application the share is recorded under Chapter IV as belonging to him, or
(b) his right to the share has been established by a decree which is still subsisting at that date, or
(c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.
124. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
125. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
126. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
127. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
128. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
129. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
130. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
131. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
132. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
133. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
134. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
135. Affirmation of partition privately affected. - (1) In any casein which a partition has been made without the intervention of a Revenue Officer, any ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 17 party there to 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 131, .
132, 133 and 134, or any of those sections, as circumstances may require, in the same manner as if the partition hod been made on an application to himself under this Chapter.
136. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
137. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ...
138. Officers who may be empowered to act under this Chapter. - The Revenue Officer by whom proceedings may be taken under this Chapter shall be a Revenue Officer of a class not below that of Assistant Collector of the first grade."
31. Section 123 of the Act specifically provides that any joint owner of land can apply to a Revenue Officer for partition of his share in the land. But, if the written application is not made and the partition is effected privately between the parties, even then parties i.e. co-sharers can apply to the Revenue Officer under Section 135 for affirmation of private partition between themselves.
32. It is quiet apparent from the aforesaid provisions of law that Revenue Officer, after having received application, if any, for the affirmation of private partition, shall inquire into the case and thereafter proceed under Sections 132 to 135 of the Act. Section 138 of the Act further provides that Revenue Officer by whom proceedings may be taken under this Chapter shall be a Revenue Officer of class not below that of the Assistant Collector of the first Grade.
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 1833. In the case at hand, mutation No.352 came to be attested by DW-4 Shri I.N. Bali, A.C. 2nd Grade, but, as has been taken note hereinabove, mutation could only be attested .
by the Revenue Officer not below the rank of A.C. 1st Grade and as such there is considerable force in the arguments of Shri Bhupender Gupta, learned Senior Counsel representing the respondents-plaintiffs that no procedure, as prescribed under the Act, was followed by the Revenue Agency before attesting mutation No.352 and as such same being illegal cannot be allowed to sustain. Otherwise also, as has been taken note hereinabove, Roop Chand, one of the co-sharers, in whose custody private partition/family arrangement allegedly was kept, had already expired before the execution of such private partition and as such, it is not understood that when Shri Roop Chand had passed away on 8.12.1979, how he could remain present at the time of recording of Rapat Roznnamcha, dated 3.6.1981, wherein, all the co-sharers allegedly made a report to the Patwari that their land has been partitioned. Leaving everything aside, mutation, if any, pursuant to the private partition, could only be effected by the A.C. 1st Grade and as such mutation No.352, having been attested by A.C. 2nd Grade,is illegal and not binding upon the parties.
34. True, it is, that mutation, if any, is required to be challenged within one year as provided by law. But, in the case at hand, as has been discussed above, mutation having been attested by an incompetent officer is void ab initio and as ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 19 such, plaintiff, who was being threatened by the defendants in the garb of mutation, rightly filed suit for declaration.
Otherwise also mutation No.352 is based upon private .
partition/family arrangement, which never came to be affirmed in terms of Section 135 of the Act, rather, very existence of private partition/family arrangement is doubtful in view of non-production of same in the Court.
35. It is quiet apparent from the material available on record that prior to passing of the order by the competent authority no partition by metes and bounds ever took place between the parties. Though, in the case at hand, existence of private partition/family arrangement, if any, is itself doubtful as no documentation in this regard has been adduced on record by the appellants-defendants, but, otherwise also H.P. Land Revenue Act, 1953 provides complete mechanism for preparing revenue record. Under Section 35 of the Act, any person acquiring right in an estate as a land owner is required to report the same to the Patwari of the estate, who in turn, is required to enter this fact in the register of mutations maintained by him. It is also apparent from the provisions of law contained in the Act, taken note hereinabove, that whenever there is partition without intervention of the Revenue Officer, private party is required to apply to the Revenue Officer for order of confirmation/affirmation of partition, whereafter, Revenue Officer is necessarily required to inquire the fact as to whether partition, if any, has ever effected interse parties or not. In this regard Revenue Officer ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 20 is required to follow the statutory provisions laid down under Chapter 9 of the Act. But, in the instant case, no such procedure appears to have been followed by the Revenue .
Officer while attesting the mutation on the basis of private partition/family arrangement allegedly arrived interse parties and as such partition, if any, arrived interse parties in the year 1981 is no partition in the eye of law and learned Courts below rightly decreed the suit of the plaintiffs. In this regard reliance is placed upon Mangat Ram vs. Gulat Ram (since deceased) through his LRs Jagdeep Kumar & Ors, Latest HLJ 2011 (HP) 274, wherein this Court has held as under:-
"19. Prior to passing of the order by the competent authority, no partition by metes and bounds ever took place between the parties. Court below rightly came to the conclusion that private partition was actually an arrangement for the purpose of cultivation of land. It was not a final partition of the land by metes and bounds so as to effect severances of joint holdings. Had it been so, parties would have definitely got this fact recorded in the revenue record and resorted to the mandatory provisions of Sections 35 and 135 of the Act. Act is a complete code in itself. It provides procedure for preparing revenue record. Under Section 35, any person acquiring right in an estate as a land owner is required to report the same to the Patwari of the estate, who in turn, is obliged to enter this fact in the register of mutations maintained by him. Whenever there is partition without intervention of the Revenue Officer, Private party is required to apply to the Revenue Officer for order of confirmation/affirmation of partition. The Act provides that in such like cases Revenue Officer is mandatorily required to inquire the fact as to whether in fact partition was ever effected upon or not. Revenue Officer is required to comply with the statutory provisions laid down under Chapter 9 of the Act. Admittedly in the instant case parties have not resorted to such measures. Partitions ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 21 entered into in the year 1961 and 1972/74 is no partition in the eyes of law.
20. This Court in Leetho vs. Chamelo & Ors., 2001 2 ShimLC 238, while dealing with the question of jurisdiction of the Civil Court to entertain a suit filed by the plaintiff, assailing the order, .
of partitioning the land, passed by the competent authority, has specifically held that partition, whether by way of family settlement or family arrangement or by Revenue Officer by giving effect to the family partition or settlement by metes and bounds, should be such which may conclusively establish the respective shares of the parties so as to stop further dispute in between them. Mere arrangement in regard to cultivation of land cannot be termed as partition though such arrangement at the time of final partition by Revenue Officer should be given due consideration in order to maintain possession rof the parties intact.
21. Significantly while passing the order in question, Revenue Authority has kept this principle in mind and suit land pertaining to only two khasra numbers has been ordered to be handed over to Gulat Ram as his share in the estate of his father. Significantly possession of the parties qua other joint land has not been disturbed. This in fact is in consonance with the statements of the parties and more particularly that of Mangat Ram, made before the Revenue authorities to the effect that they were ready to distribute the land for settlement of equities amongst the share holders.
22. While considering the provisions of Section 123 of the Punjab Land Revenue Act, which are paramateria with Section 135 of the Act, Punjab and Haryana High Court in Chander Bhan vs. Hari Ram & Ors.,1996 1 Shim L.J. 696 has held that requirement of reporting the factum of private partition to the revenue authorities is must.
23. In Janku & Ors. vs. Nagnoo & Ors., 1986 AIR(HP) 10, in almost similar circumstances where on the basis of respective possession of the parties land revenue was not assessed separately in the revenue record (jamabandi), Court repelled the contentions of the parties that the land stood partitioned by way of private partition.::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 22
24. In the instant case also, as is evident from the revenue record Ext.P6 to Ext.P-19, it cannot be contended that the land between the parties stood partitioned by metes and bounds or assessed to separate land revenue. Thus it cannot be contended that the Court below erred in misreading or misinterpreting the oral and .
documentary evidence on record while holding that no private family partition ever took place between the parties."
36. While placing reliance upon the aforesaid judgment, Mr.G.D. Verma, learned Senior Counsel representing the appellants, also made a serious attempt to persuade this Court to agree with the contention that since mutation in the instant case came to be attested in the year 1982, suit, if any, could have been filed within a period of one year from the date of attestation of mutation. He further contended that since suit came to be filed in the year 1990, Court below ought to have dismissed the same on the ground of limitation. Mr.Verma also placed reliance upon the judgment rendered by Hon'ble Apex Court in R.Ravindra Reddy and Others vs. H.Ramaiah Reddy and Others, (2010)3 SCC 214. But, this Court, having perused ratio of law laid down in that case, sees no application of the same in the instant case. Facts of the case decided by Hon'ble Apex Court in the case referred above were altogether different because in that case, Land Tribunal, Anekal had passed order on 11.12.1975, whereas the suit was filed by the petitioners in 2005 seeking declaration, partition and permanent injunction in respect of the properties which were the subject-matter of the order of the Tribunal. Hon'ble Apex Court, taking note of ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 23 the facts of the case arrived at the conclusion that an attempt has been made to bring the said suit within the period of limitation by indicating that respondents No.2 to 5 had tried .
to disturb the possession of the petitioners during the year 2004-2005. Hon'ble Apex Court further held that question as to whether appellant was an occupancy tenant or not and whether respondent had given his consent to such claim is in the domain of the Land Tribunal and as such Court below rightly came to the conclusion that the Civil Court had no jurisdiction to decide such a question.
37. Reliance placed on another judgment of Hon'ble Supreme Court by the learned Senior Counsel in case Sneh Gupta vs. Devi Sarup and Others, (2009)6 SCC 194, is also misplaced because in that case suit was dismissed as withdrawn on the basis of a compromise entered into before the appellate Court. In that background, Hon'ble Apex Court has held that if the order is void or voidable, the same must be set aside. The compromise may be void or voidable, but it is required to be set aside by filing a suit within the period of limitation because there was a compromise decree passed on the basis of compromise placed on record by the respective parties. In the aforesaid background, Hon'ble Apex Court, while holding that Limitation Act is a statute of repose, further held that if a suit is not filed within the period of limitation, the remedy would be barred. But, at the cost of repetition it would be relevant to note that in that case compromise/consent decree was passed, which could only be ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 24 set aside by filing appeal that too within prescribed period of limitation.
38. In the case at hand, facts are altogether different .
from the facts which were before Hon'ble Apex Court while passing aforesaid judgments and as such, findings returned in those cases by Hon'ble Apex Court have no application in the present case. Private partition/family arrangement arrived interse parties never came to be confirmed in terms of Section 135 of the Act and moreover same was not approved by the competent officer i.e. A.C. 1st Grade and as such same being nullity ought not have been laid challenge by plaintiff before filing suit for injunction.
39. True, it is, that plaintiff did not avail any remedy available under the mechanism provided in the Act within a statutory period of one year, but this Court is of the view that order of 1982 having been passed by an incompetent officer is void ab initio and as such, same was not required to lay challenge by the plaintiffs being a nullity in the eye of law. In this regard reliance is placed upon Ajudh Raj and others vs. Moti S/o Mussadi, AIR 1991 SC 1600, wherein Hon'ble Apex Court has held as under:-
"5. The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 25 subject-matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it clearer before proceeding further. On the other hand if the order has been passed jurisdiction, the same can be ignored as nullity, that is, non existent in the eye of law .
and it is not necessary to set it aside; and such a suit will be covered by Article 65. In the present case the controversial facts have been decided in favour of the plaintiff- appellant and the findings were not challenged before the High Court. The position, thus, is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right-of a tenant or a sub-tenant. The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 27(4) of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void, in which case the suit undoubtedly will be governed by Article 65.
6. The provisions of Section 27(4) of the Act as also the other provisions are limited in their scope. The preamble indicates that the object of the Act is to provide for the abolition of the big landed estates and to reform the law relating to tenancies in the H. P. The expressions 'tenant', 'sub-tenant' as also other similar expressions have to be understood in the sense they have been used in the other statutes dealing with the relationship of landlord and tenant in agricultural lands.
Section 27 of the Act provides for a transfer by law of the right, title and interest of the land owner to the State Government under sub-section (1). Sub-section (2) is by way of an exception with respect to land under the personal cultivation of the land owner. Sub- section (4) directs that the right, title and interest of the land owner thus acquired, shall be transferred by the State, on payment of compensation, to the tenant who cultivates such land. Under this provision, the order in the present case was passed in favour of Moti. If Moti was not a tenant or sub-tenant he was not entitled to the benefits under the sub-section. If the land was in cultivating possession of the plaintiffs, as held in the present suit, the Compensation Officer did not have the jurisdiction to pass any order in defiance of sub-section (2) and the land did not vest in the State at all. Further, for the ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 26 additional reason that Moti was not a tenant of the land the order passed in his favour under Section 27(4) was again without jurisdiction. In absence of the conditions necessary for the exercise of power under Section 27(4) the Officer lacked jurisdiction to act and it was not necessary for the civil .
court to formally set aside his order before passing a decree. What necessitated the plaintiff to come to the civil court was the challenge to his title, and the suit must be held to be covered by Article 65, and, therefore, not barred by shorter periods of limitation either under Article 100 or Article
113."
(Emphasis supplied)
40. It is quiet apparent from the aforesaid exposition of law laid down by Hon'ble Apex Court that if the order is without jurisdiction, the same can be ignored as nullity i.e. non-existent in the eye of law. In the aforesaid judgment Hon'ble Apex Court has categorically held that if the Officer having no jurisdiction conduct the proceedings and make an order, in that eventuality entire order made by him would be nullity. In the case at hand also, as has been discussed above, AC. 2nd Grade had no power under the Act to confirm partition and attest mutation and as such, this order being nullity is/was not binding upon the parties. What necessitated the plaintiffs to come to the Civil Court is/was the challenge to his title and as such same is not barred by limitation as prescribed under Article 100 or Article 113.
41. In view of detailed discussion made hereinabove, this Court sees no reason to differ with the findings returned by the Courts below that private partition and settlement allegedly arrived interse co-sharers is not in accordance with ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 27 the provisions contained in Chapter-9 of the Act and as such same is not binding upon the parties. The provisions of Chapter-9 of the Act are applicable in the present case and .
private partition, if any, arrived interse parties was required to affirmed by the Revenue Officer in terms of Section 135 of the Act. Similarly, mutation, if any, on the basis of private partition, could only be effected by the Revenue Officer not below the rank of A.C. 1st Grade and as such, mutation Nos.352 and 73 attested by A.C. 2nd Grade are void ab initio not binding on the parties. Since this Court has come to the conclusion that very existence of private partition/family arrangement arrived interse parties is doubtful, Rapat Roznamcha, if any, recorded by the Patwari on the basis of same in the presence of parties or co-sharers has no relevance and, as such, parties to the suit are not bound by their admission. Substantial questions of law are answered accordingly.
42. At this stage, this Court deems it fit to deal with the application made under Order 41 Rule 27 CPC. By way of application, referred hereinabove, appellants-defendants have sought permission to place on record copies of mutation No.73 attested on 21.8.1982 pertaining to Mauja Pakauti, copies of Rapat Roznamcha Nos.392, 393 dated 3.6.1981 and the copies of Jamabandies with respect to land situate at Mauja Pakauti and Banjan, but, this Court, after having carefully perused averments contained in the application itself, sees no relevance of documents, referred hereinabove, as far as ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 28 adjudication of the case at hand is concerned. Applicants have categorically stated in application that mutation No.73 in respect of land at Mauja Pakauti was attested on 21.8.1982 by .
A.C. 2nd Grade, Arki. As has been held hereinabove that A.C. 2nd Grade was incompetent to attest mutation No.352 on the basis of Rapat Roznamcha, mutation No.73 in respect of land at Mauja Pakauti, which was also attested by A.C. 2nd Grade, Arki, is not binding upon the parties being nullity in the eye of law, as such, no fruitful purpose would be served in case documents, sought to be placed on record by way of instant application, are taken on record, hence the application is dismissed.
43. Though learned Senior Counsel representing the appellants-defendants in support of his application under Order 41 Rule 27 CPC, referred hereinabove, has placed reliance upon the judgments of Hon'ble Apex Court as well as of this Court in Surjit Singh and Others vs. Gurwant Kaur and Others, (2015)1 SCC 665 and Shyam Lal and Others vs. Vidya Sagar and Others, 2013(1) Shim.LC 99, but this Court, in view of findings recorded in para supra, sees no application of the same in the facts and circumstances of the present case.
44. Shri Bhupender Gupta, learned Senior Counsel appearing for the respondents-plaintiffs, supported the judgments passed by both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 29 of the fact that both the Courts below have very meticulously dealt with each and every aspect of the matter. He also urged that scope of interference by this Court is very limited .
especially when two Courts have recorded concurrent findings on the facts as well as law. In this regard, to substantiate the aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Apex Court has held as under:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
45. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. But, in the case at hand, this Court, while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence ::: Downloaded on - 05/04/2018 22:55:20 :::HCHP 30 led on record by the respective parties, perusal whereof certainly suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the .
impugned judgments and decrees passed by both the Courts below. Moreover, learned Senior Counsel representing the appellants-defendants was unable to point out perversity, if any, in the impugned judgments and decrees passed by both the Courts below and, as such, same do not call for any interference.
46. Consequently, in view of detailed discussion made hereinabove as well as law laid down by Hon'ble Apex Court, this Court sees no illegality and infirmity in the judgments and decrees passed by both the Courts below and the same are upheld. Hence, both the aforementioned appeals fail and are dismissed, accordingly. There shall be no order as to costs.
47. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
April 3, 2018 (Sandeep Sharma)
(aks) Judge
::: Downloaded on - 05/04/2018 22:55:20 :::HCHP