1984 Supreme(MP) 426

R. K. Vijaywargiya, J.
Raisingh v. Keshar Singh.
S.-A. No. 35 of 1974 (I); Decided on 6-8-1984.

Headnote:(1) Partition -- mere separate residence and separate cultivation -- do not prove mutual partition in absence of separate mutation.

        (2) Land Revenue Code, 1959 (M. P.) -- S. 178 -- mutual partition -- mere separate residence and separate cultivation -- do not prove partition in absence of mutation.

        (3) Hindu Law -- partition -- purchaser of a share in joint Hindu property -- may bring a suit for partition demanding stay as to possession in previous suit against him.

        The plaintiff filed the present suit for declaration that the sale of agricultural land in suit by the defendant No. 4 Girwarsingh in favour of the defendants No. 1 to 3 (Appellants) vide registered sale-deed dated 21-5-62 was unauthorised and void and not binding on the plaintiff and for possession of the suit land. According to the plaintiff the agricultural land bearing Khata No. 19 measuring 83.13 bighas situate at village Molta Malo Thar was jointly owned by the plaintiff and the defendant No. 4. it was the undivided ancestral property of the parties. The defendant No. 4 transferred the said land measuring 17 bighas and 16 biswas to the defendants Nos. 1 to 3, by a registered sale deed dated 21-5-1962. According to the plaintiff the defendant No. 4 was not authorised to alienate the said land. The plaintiff therefore prayed for possession of the suit land.

        The defendants Nos. 1 to 3 resisted the suit. According to them there was a partition between the plaintiff and the defendant No. 4 some 25 years ago whereunder the lands held by the parties was divided and they were in exclusive possession of the land which fell to their shares. The land sold by Girwarsingh fell to his share and he was in exclusive possession thereof. The plaintiff was left with no right title or interest in the suit land and therefore has no right to challenge the alienation made by Girwarsingh.

        Held : Mere separate residence and separate cultivation do not prove partition. By mutual arrangement parties may Li"Ve separately and cultivate separately but merely on that ground it cannot be held that the status of the parties was altered and there was a partition between them.

        It has also to be taken note of that the Khata continued to be in the joint names of the plaintiff and the defendants. Had there been a partition as alleged by the plaintiff there is no reason why the land was not separately mutated in the names of the parties. The defendants Nos. 1 to 3 alleged that there was a partition between the plainl1ff and the defendant Girwarsingh. The evidence adduced by them was to the effect that a partition took place between the further of the plaintiff and the defendant Girwarsingh.

        It was next contended by the learned counsel for the appellant that a direction should have been added to the decree staying the execution of the decree for possession for a certain period so as to enable the appellants to bring a suit for partition of the joint Hindu family property with the prayer that the land sold by the defendant Girwarsingh to the appellants be allotted to his share so that the equities between the parties may be adjusted.

        This contention is well founded. In a similar case a Full Bench of this Court in Ramdayal v. Manaklal (1973 JLJ 764) added the following direction to the decree passed by the Court below directing the purchaser to deLi"Ver pos· session of the property to the plaintiff :--

        "The execution of the decree in so far as it directs the purchaser to deLi"Ver possession of the property to the plaintiff be stayed for a period of six months and if before the expiry of that period the purchaser brings a suit for general partition, then the stay should continue until the disposal of the suit but if no such suit is brought within that period then the stay of execution will stand cancelled."

        In the present case it is not in dispute that the land purchased by the defendants from Girwarsingh was less than share of Girwarsingh which was the case in the aforesaid Full Bench case also. The purchasers have paid full consideration to the defendant Girwarsingh and there is no reason why such a direction should not be added to the decree in the present case also the sale made by Girwarsingh in favour of the appellants may not be binding on the plaintiff but is binding on Girwarsingh. 1973 JLJ 764 (FB) followed. Appeal partly allowed.