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2014 Supreme(P&H) 720
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAKESH KUMAR JAIN, J.
Jug Lal and others - Appellants
Versus
Raghbir Singh (Dead) through his LRs - Respondents
RSA No.255 of 1993 (O&M)
Decided On: 28.01.2014
Advocate Appeared
Mr. L.N. Verma, Advocate, for the appellants.
Mr. Kunal Dawar, Advocate, for respondent Nos.2, 3, 5 & 6.
The main legal point established in the judgment is that the sanctioning of mutation at the instance of the plaintiffs about the private partition was a sufficient compliance of Section 123 of the Punjab Land Revenue Act, 1887.
Headnote:
family partition - Punjab Land Revenue Act, 1887 - Section 123 - Chapter IX, Chapter IV, Section 34 - [123]
Fact of the Case:
The plaintiffs filed suit for possession of land after a family partition. The trial court decreed the suit, but the lower Appellate Court allowed the appeal of the defendants based on Section 123 of the Punjab Land Revenue Act, 1887.
Finding of the Court:
The court found that the private partition was duly sanctioned and affirmed by the revenue authorities, and the defendants failed to prove their status as tenants. Therefore, the suit for possession filed by the plaintiffs was decreed.
Issues: The issues included ownership of the suit land, entitlement to possession, mense profit, maintainability of the suit, locus standi, non-joinder and mis-joinder of necessary parties, cause of action, and jurisdiction of the civil court.
Ratio Decidendi: The court held that the sanctioning of mutation at the instance of the plaintiffs about the private partition was a sufficient compliance of Section 123 of the Act. Additionally, the court emphasized that the status of a tenant at will, as recorded in the revenue record, is determined by the column of rent.
Final Decision: The appeal was allowed, and the judgment and decree of the Appellate Court were set aside, restoring that of the trial court with costs.
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 197980, situated in village Nangli, Tehsil Tohana, District Hisar was jointly owned by the parties to the suit and other coshares. The cosharers effected a family partition of their joint holding in 198182 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 cosharers 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(80), 14/1/2(06), 14/2(54), 15(80) and Rect. No.112, Killas No.9/2(70), 10/2(711), 11(80), 12(78) and 13/1(29) (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 cosharers 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:
“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
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 197980 (Ex.P2), Khasra Girdawari (Ex.P3) and jamabandi (Ex.D1) for the year 198485. 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.
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 t
