(K.M. Joseph and Hrishikesh Roy, JJ.)
Sujan Singh ________________________________________ Appellant;
v.
Karan Singh and Others _________________________ Respondent(s).
Civil Appeal No. 3876 of 2022 (Arising out of SLP (C) No. 26474 of 2018), decided on May 11, 2022
The Order of the court was delivered by
Order
1. Leave granted.
2. The appellant is the first respondent in RSA No. 463 of 2013. The High Court by the impugned judgment has allowed the said appeal and dismissed Civil Suit No. 774 of 2003 filed by the appellant.
3. It would appear that the parties are joint owners of 52 kanal 4 marla of land. A suit was instituted by the appellant in respect of 10 kanal and 14 marla. He also instituted separate petition purporting to be under Section 111 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as ‘Act’) in respect of 41 kanal and 10 marla of land. The proceedings came to be contested. The Assistant Collector before whom the petition in respect of agricultural land was filed decreed the revenue suit by its order dated 17.12.2003 and listed the matter for further proceedings.
4. The Collector dismissed the revision by the first respondent by order dated 29.07.2005.
5. The Commissioner, Gurgaon, however, by order dated 24.07.2008 allowed the further revision. The appellant, thereupon, challenged the proceedings before the Financial Commissioner, Haryana.
6. The trial Court decreed the present Suit in respect of 10 Kanal 14 marla by decree dated 14.05.2009. First appeal was carried by the first respondent before the first Appellate Court.
7. The Financial Commissioner by order dated 07.04.2010 restored the order of the Assistant Collector relating to partition of agricultural land measuring 41 Kanal 10 marla.
8. On 31.08.2012, the Additional District Judge dismissed the First Appeal filed by the first respondent. The first respondent carried the matter in the Regular Second Appeal. It is in the said Second Regular Appeal, the High Court, by the impugned judgment, allowed the same as noted and the suit came to be dismissed.
FINDINGS IN THE IMPUGNED JUDGMENT
9. The High Court found merit in the contention of the first respondent. It is found that the present suit is bad for partial partition. It is next found in regard to the attempt made by pleading that the land was subjected to land revenue that even applicability of land revenue in the State of Haryana has been repealed long time back. Thereafter, the Court finds that the appellant should have availed the remedy of seeking seeking partition of the entire land in one suit and he was not prevented to do so in law. Thereafter, finding shelter in judgment of this Court in Pankajakshi (dead) through LRs v. Chandrika AIR 2016 SC 1213, the Court proceeded to allow the appeal.
10. We have heard Mr. Gagan Gupta, learned counsel appearing on behalf of the appellant and Mr. Sanchar Anand, learned counsel appearing for the respondent.
11. Learned counsel for the appellant would submit that this is a case where though the land may be estate within the meaning of Section 3(1) of the Act having regard to the findings of the High Court which we have just adverted to viz., that the land revenue has been abolished for the State of Haryana and having regard to the concurrent findings rendered by the two Courts, which held that in the land in question (10 Kanal 14 marla), there are buildings which occupied nearly 8 canals, these findings of fact have been wrongly interfered with. In fact, he would submit that on the reasoning employed by the High Court and the judgment of the coordinate Bench referred to by the learned Single Judge, result should have been in favour of the appellant. The appellant rightly maintained the suit before the civil Court, the land having been transformed from whatever it may have been in the beginning. He would also submit that the order of the Financial Commissioner in respect of the property which was agricultural land has become final.
12. Learned counsel for the respondent, on the other hand, would point out that the proceedings in the Financial Court regarding agricultural land has not become final. He points out that there are four stages; while it may have attained finality in regard to the first stage, it cannot preclude the rights of the first respondent (who alone filed appeals against the trial Court judgment). He would further point out that the matter must receive the attention of this Court with reference to Section 4 of the Act. Therein, if the land is assessed to land revenue then it is Section 111 of the Act which will be attracted. Secondly, there would be an exclusion of the civil Court jurisdiction under Section 158.
13. He would take us though the stand of PW 2 in his deposition and point out that it will reveal that he has admitted that the land in question has been assessed to land revenue.
14. He was also at pains to point out with reference to the Jambandi that barring five marlas, the rest of the land was indeed assessed to land revenue. He also sought to draw inspiration from section 48 of the Act.
15. We have already noted the admitted position that the parties jointly held 52 odd kanals of land. The stand of the appellant-plaintiff is that the plaint scheduled property consisting of 10 Kanal and 14 marla is not agricultural land and therefore, outside the scope of section 158(2)(xvii) of the Act. The bar against civil Court to entertain the suit is not attracted.
16. For understanding the scope of this dispute, it is necessary that we set out the following sections:
17. Section 3(1):
“3. Definition:— In this Act, unless there is something repugnant in the subject or context;
(1) “estate” means any area—
(a) for which a separate record-of-rights has been made; or
(b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed; or
(c) which the 1[State Government] may, by general rule or special order, declare to be an estate;”
18. Section 4:
“4. Exclusion of certain land from operation of Act:— (1) Except so far as may be necessary for the record, recovery and administration of village cesses, nothing in this Act applies to land which is occupied as the site of a village and is not assessed to land revenue. (2) A Revenue-officer may define, for the purposes of this Act the limits of the site of a village:
Explanation:— For the purposes of this section a site within the limit of a municipality or a notified area shall not be deemed to be the site of a village.”
19. Section 111
“111. 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, with the proposed plan of partition indicating the quality and location of the land in question alongwith the reasons for partition and copy of the latest Jamabandi, if,-
(a) on the date of 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 the date; or
(c) a written acknowledgement that right has been executed by all persons interested in the admission or denial thereof.”
20. Section 158(2)(xvii)
158. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue-officers:—
Except as otherwise provided by this Act-
(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely:—
(xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;
21. So far as 41 and odd kanals out of the total extent is concerned, undisputedly, the Revenue Court under Section 111 has decided the case as it stands in favour of the appellant at whatever stage it may be.
22. We must notice that the first respondent did object to the maintainability of the suit before the Revenue Court also on the scope that the suit is bad for partial partition. The said plea apparently did not find favour as things stand and the petition under section 111 stands decreed in favour of the appellant.
23. Before the civil Court, we notice the following findings:
“48. The onus was case upon the defendant. In this regard Ld. Counsel for the defendants have defendants have contended that the suit property being agricultural in nature and land revenue is being assessed. Therefore, civil court has jurisdiction.
49. However, in this case it has come in the testimony of DW4 that on the part of the suit property construction was raised by him in the year 1982 and thereafter in the year 1989, 1990, 1991, 1997. It has further come in the testimony of DW-7 that three shops, latrine, bathroom, tin shed and gallery was constructed by him in the year 2003. Further more it has come in the report of the local commissioner Ex. P-8 and site plan Ex.P-13 that the suit property is having a boundary wall which clearly shows that the suit property is not being used for agricultural purposes for the last more than 20 years, from the time of filing of the suit. Thus the nature of the suit property is gairmumkin and is being used for residential and commercial purpose.
50. Therefore, in view of ratio of law laid down by our own Hon’ble High Court in case Jagga Singh v. Surjeet Singh (supra), the court has the jurisdiction to entertain and try the present suit. The ratio of law in case Fauja Singh v. Pritam Singh (supra) is not application because the suit property is not subject to land revenue and further it is being used for residential and commercial purposes for the last more than 20 years. The jurisdiction is barred if the suit property is being used for agricultural purposes. Thus the ratio of law in case of Fauja Singh v. Pritam Singh (supra) is of no help. Thus this issue is decided against the defendant.
ISSUE NO. 4
51. The onus was cast upon the defendant. However, while adjudicating on issues No. 1 to 3 the court come to the conclusion that plaintiff is co-sharer to the extent of ½ share and suit property has not been partitioned so far and therefore, his suit for partition is maintainable. Hence, this issue is decided against the defendant.
ISSUE NO. 5
52. The onus was case upon the defendant Ld. Counsel for the defendants have basically contended that when the construction was being raised no objection was raised by the plaintiff and therefore, he is stopped from claiming partition. However, I do not find merit in his contention because mere non raising of objection does not mean that plaintiff admitted the defendant No. 1 as exclusive owner of the suit property. Plaintiff simply permitted the defendant to use the property but never admitted him as exclusive owner by his Act. Thus ratio of law in case of Venkataswami Naidu v. Muniappa Mudallar (supra) is no help to the defendant. Moreover the plaintiff approached the civil court for the gairmumkin area and the revenue authorities for the agricultural land which clearly shows that he wants the partition of the entire property by meats and bonds. Hence, this issue is also decided against the defendant.
ISSUE NO. 6 (RELIEF)
53. In sequence of my findings on the aforesaid issues the plaintiff succeeded and his suit is decreed. A preliminary decree is passed in favour of plaintiff and he is entitled for possession to the extent of 1/6 share from the suit property. The defendants No. 1 & 2 are also entitled to the extent of 16 share each and defendant No. 3 is entitled to the extent ½ share in the suit property. Costs is also awarded in favour of the plaintiff. Decree sheet be prepared. File be consigned to record room.”
24. We further notice the findings rendered by the first appellate Court.
“15. It is not disputed that a local commissioner was appointed in this case who submitted his report Ex.P8 and prepared site plan Ex. P13 and as per the report, nine shops were existing and three new shops were being constructed, Ex.DW2/1 to Ex. DW1/6 are rent note which show that tenant Devender (DW(9), Hira Lal (DW 10), Ved Parkash (DW3) are paying rent to defendant No. 1 Mason Balbir singh (DW4), Chand Ram (DW7) and Satpal(DW8) have stated that shops, rooms, toilet, bathroom, tin shed, gallery were constructed by them at the instance of defendant No. 1. Defendant No. 1 is in possession of blue portion shown in the site plan Ex.DW1/1 and on the eastern portion, part of Killa No. 16 is in possession of defendant No. 3. It is not disputed that Samadhi (monuments) of Kanhiya Lal and Balbir Singh are existing on the killa line as shown in the site plans Ex.DW/1 and Ex.DW11/1 which show that portion on which the Samadhi of Kanhiya Lal was constructed came to the share of the family of Kanhiya Lal and the portion having Samadhi of Balbir Singh came to the share of the family of Balbir singh. Admittedly, in the revenue record, both parties are being shown as joint owners to the extent of their share. Defendant No. 1 in his site plan has depicted possession of the plaintiff over land failing in Killa No. 22 and eastern portion of Killa No. 21. From Ex. DW11/1 and Ex. DW1/1, it emerges out that the portion which has been given to the plaintiff in Ex.DW1/1 is in fact of Nihal Singh. From the site plan Ex.P1 produced by the plaintiff, it transpires that the western portion of the suit property is in possession of defendant No. 1 and eastern portion is in possession of Defendant No. 3. The portion which defendant no. 1 claimed to the possessed by plaintiff is not possessed by plaintiff is not possessed by the plaintiff as per the site plan of defendant No. 3 Ex. DW11/1. The family settlement has not been reflected in the revenue record. Defendant no. 1 has not disclosed the exact area being possessed by the plaintiff and defendant No. 2. If a family settlement has taken place and parties are having separate possession for use, it does not mean that the land has been partitioned by metes and bounds and it does not sever their status of joint owner. It has been so held in Ram Chand’s case (supra). In Dhian Singh v. Sheela Devi (Supra), it has been held that if private partition is not reflected in the revenue record, it would be deemed that the land is still joint for all purpose. As per DW4, construction was raised by him in one part of the suit property in the year 1982 and thereafter in the year 1989, 1990, 1991 and 1997. DW7 has stated that three shop, latrine, bathroom, tin shed and gallery were constructed by him in the year 2003. A boundary wall is there as per the report of the local commissioner Ex.P8. Thus, the suit property is not being used for agricultural purposes for the last more than 20 years from the date of filing of the suit. Thus, the nature of the suit property is Gair Morusi and is being used for residential and commercial purposes. In these circumstances, the civil court has jurisdiction to entertain and try the suit. Reliance can be placed on Jaggar Singh’s case (supra). There is no illegality or infirmity in the findings recorded by learned Additional Civil Judge (Sr. Division), Rewari and the same are perfectly legal and valid and are upheld.
16. No other point was urged.
17. In net result; the appeal fails and the same is hereby dismissed. Patties are left to bear their own costs. Decree sheet be prepared accordingly. The trial court recorded along with a copy of this judgment be remitted back to the court concerned. Appeal file be consigned to record room after due compliance.”
25. It is in the background of these findings that the second appeal in question came to be considered.
26. Learned counsel for the appellant does not dispute that the plaint schedule property constituted ‘estate’ for the reason that there is a record of rights within the meaning of Section 3(1) which has been made in respect of plaint scheduled property. When it comes to Section 4; Section 4 apparently declares after the omission of the word ‘town or’ in the year 1958 that nothing in the Act will apply to land which falls in a village and which is not assessed to land revenue.
27. As far as section 48 relied upon by the learned counsel for the respondent is concerned, it is correctly pointed out by the learned counsel for the appellant that the said provision stands repealed, as far as the State of Haryana is concerned. The property with which this Court is dealing with is in the State of Haryana.
28. Therefore, according to the appellant, the case must be dealt with in the light of the repeal of Section 48 as far as the State of Haryana is concerned and it appears, according to the appellant, to be the foundation for the observation in the judgment that the applicability of land revenue has been done away with in Haryana.
29. For the reason that we are remitting the matter back, we do not venture to say anything more.
30. As far as the learned Judge purporting to draw support from the judgment of the coordinate Bench is concerned, according to the appellant, the said judgment actually supports the case of the appellant. We are taken through that judgment. It appears to indicate that where the land is built upon, it may take it outside the purview of Section 111 and also beyond the purview of the bar of civil Courts jurisdiction under Section 158.
31. As far as partial partition is concerned, we are of the view that if the land in question is found to be property which can be dealt with by the Revenue Court then, undoubtedly, it would be bad for partial partition. On the other hand, if it is found that the plaint scheduled property falls outside the scope of Section 4 and Section 158(2)(xvii), then it is not open to the first respondent to urge the plea of partial partition.
32. We would think that still further we must notice that though in Pankajakshi (dead) through LRs (supra), this Court has held that it is not necessary for the High Court to frame substantial question of law under Section 100 CPC under Section 41 of the Punjab Courts Act 1918 which applies the jurisdiction of the High Court has been found to be narrower than the jurisdiction of the High Court in a appeal under Section 100 CPC. We would think in the nature of the order which has been passed, the matter calls for a remand which ordinarily we would have hesitated to pass, since we feel that we are left with no choice because of the nature of the facts involved.
33. Accordingly, the impugned judgment will stand set aside. The appeal is allowed. The impugned judgment will stand set aside. We remand the matter back to the High Court. The parties will bear their respective costs. We request the High Court to hear the matter as early as possible.
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Civil Appeal No. 3876/2022
(Arising out of SLP (C) No. 26474/2018)
(Arising out of impugned final judgment and order dated 26-03-2018 in RSA No. 463/2013 passed by the High Court of Punjab & Haryana at Chandigarh)
Sujan Singh.….Appellant(s)
v.
Karan Singh & Ors.….Respondent(s)
[TO BE TAKEN UP AS ITEM NO. 1]
Date: 11-05-2022 This matter was called on for hearing today.
(Before K.M. Joseph and Hrishikesh Roy, JJ.)
For Appellant(s) Mr. Gagan Gupta, AOR
For Respondent(s) Mr. Sanchar Anand, Adv.
Mr. Sameer Kumar, AOR
UPON hearing the counsel the Court made the following
ORDER
34. Leave granted.
35. The appeal is allowed in terms of the signed oder.
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