Partition proceedings under the Punjab Land Revenue Act, 1887, are not complete until an instrument of partition is prepared and the status of co-sharers is severed. Mere approval of Naksha Be does not constitute completion of partition.

G.R.Majithia, J.

1. This Regular Second Appeal is directed against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge dismissing the plaintiff appellants suit for possession by pre-emption of the suit land.

2. The facts :-

One Sarwan Singh sold his land measuring 70 Kanals 7 Marlas to the defendant-respondent, vide sale deed dated August 16,1988. On May 23, 1989, the plaintiff appellant filed a suit for possession by pre-emption on the ground that he was a co-sharer in the suit land at the time of sale and continued to maintain such status till the filing of the suit and decree. The defendant-respondent contested the claim of the plaintiff and alleged that he was not a co-sharer in the suit land.

3. From the pleadings of the parties, the following issues were struck :-

1. Whether the plaintiff has a superior right of pre-emption regarding the suit land for a consideration of Rs. 1,17,000/-? O. P. P.

2. If issue No. 1 is not proved what was the market value of the suit land at the time of sale ? O.P.P.

3. Whether the plaintiff is a co-sharer in the suit land, as alleged ? O. P.P.

4. Whether the plaintiff is estopped by his own act and conduct to file the present suit ? O P.D

5. Whether the plaintiff has got no cause of action ? O.PD.

6. Whether the defendant had made an improvement over the suit land to the tune of Rs. 24,000/- if so, its effect 7 O.P.D.

7. Whether the defendant is entitled to charges of stamp and registration as alleged ? O.P.D.

8. Whether the defendant is entitled to special costs under Section 35-A of the Code of Civil Procedure ? O. P.D.

9. Relief.

4. The only dispute which was raised before the first Appellate Court was whether the plaintiff was a co-sharer and could maintain his claim for possession by pre-emption. The first appellate Court ostensibly relying upon an order, dated October 1, 1990. Exhibit D- 4, whereby Naksha Be was approved since no objections were filed to it, held that the suit land stood partitioned and the plaintiff ceased to be a co-sharer after partition. In coming to this conclusion he relied upon Smt. Harden v. Ram Jas, 1974 P. L. J. 345

5. The first appellate Court has not correctly understood the ratio of the judgment in Hardevis case (supra). In that case, after the sale of the land, one of the co-sharers moved for partition of joint land. On May 21, 1968, it was ordered as under : -

"Demarcation has been effected on the spot. Partition has been effected according to the plan. Now, Naqsha Jeem be obtained for June 4, 1968."

On June 17, 1968, an order was passed reccording that the period of limitation for filing an appeal against the order dated May 21, 1968 had expired and, therefore instrument of partition be prepared and partition would take effect from Rabi, 1968. The Bench found as a matter of fact that the instrument of partition had been prepared. Although it was also observed that on the happening of an event anterior to the date of preparation of the instrument of partition, the partition was complete. These observations when read alongwith subsequent events indicate that the Bench was conscious of the provisions of Section 121 of the Punjab Land Revenue Act, 1887 (for short, the Act).

6. In the instant case, what has come on record is that on October 1, 1990, Naksha Be, Ex. DX-5, was approved and it was ordered that Naksha Jeem be sent for from Halqa Kanungo for October 14, 1990. There is no other order on record to establish that order, Exhibit D-4, was complied with.

7. The first appellate Court did not correctly understand the ratio of the judgment in Hardevis case (supra) and read the observations in the judgment in isolation of the subsequent observations made therein It is in error in holding that the plaintiff ceased to be a co-sharer once Naksha Be has been prepared and after the preparation of Naksha Be, the partition was complete The conclusion arrived at by it cannot be sustained

8. The term "completion