Amrik Singh v. Gurdip Singh & Anr.

Present : Mr. M.S.Bedi, Advocate for the appellant. None for the respondents. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellant against the judgment dated 18.10.1984 passed by Shri R.K.Synghal, District Judge, Gurdaspur vide which the appeal preferred by the present plaintiff-appellant against the judgment dated 18.10.1983 passed by Shri R.N.Moudgil, Additional Senior Sub Judge, Batala was dismissed. Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that land in dispute is joint property of plaintiff and defendants in equal shares. According to the plaintiff land has not been partitioned between the parties and it is held by them as joint. The RSA No.803 of 1985 2 defendants in collusion with the revenue officials got the mutation sanctioned showing it to have been partitioned between the parties. The mutation is illegal void, in-operative and nullity.

The plaintiff never appeared before the revenue official at the time of sanctioning the mutation. Consequently, suit for declaration claiming ownership to the extent of 1/3rd share in the land measuring 350 kanals 16 marlas was claimed with consequential relief of correction of revenue record. The suit was resisted by the defendant. It is pleaded that land is not joint. The suit for declaration is barred under the provisions of Specific Relief Act. The parties appeared before the revenue official and made a statement admitting the factum of private partition on the basis of which mutation has been sanctioned on 21.6.1979. The plaintiff sold some specific khasra numbers out of the land which fell to his share and as such by his act and conduct, the plaintiff has confirmed and ratified the partition and validity of the said mutation. The plaintiff is estopped by his act and conduct from filing the present suit.

The allegation of collusiveness of defendants with revenue officials is totally ruled out. The plaintiff was given land in two kurahs whereas the defendants were given land in five kurahs. The defendants also paid Rs.10,000/- to the plaintiff by way of compensation in the presence of respectable and relations. The mutation was sanctioned and had installed tube well in their kurahs by spending huge amount. Defendant No.2 has also further transferred ¾ share of her land in favour of her son and mutation regarding the same has been effected. From the pleadings of the parties, following issues were framed :- RSA No.803 of 1985 3

Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPP

Whether the suit is maintainable in the present form ?OPP

Whether the plaintiff is in joint possession of the suit land ? OPP.

Whether the mutation in dispute is void, illegal as alleged ? OPP.

Whether the suit is barred under the provisions of Specific Relief Act, ?OPD.

Whether the plaint is sufficiently stamped ? If so, its effect ? OPP.

Relief. The Trial Court after recording evidence of both the parties and hearing the counsel for both the parties, decided issue Nos.1 and 6 in favour of the plaintiff as these issues were regarding Court fee, which was made good by the plaintiff whereas all other issues were decided against the plaintiff and consequently dismissed the suit of the plaintiff vide judgment and decree dated 18.10.1983. Feeling dis-satisfied with the above said judgment dated

18.10.1983, the plaintiff/appellant preferred the First Regular Appeal. The said appeal was dismissed by Shri R.K.Synghal District Judge, Gurdaspur vide judgment dated 18.10.1984. Still feeling dis-satisfied with the judgment dated 18.10.1983 passed by Shri R.N.Moudgil, Additional Senior Sub Judge, Batala and judgment dated 18.10.1984 passed by Shri R.K.Synghal District Judge, Gurdaspur, the present regular second appeal has been preferred by the plaintiff/appellant. RSA No.803 of 1985 4 Although in the grounds of the appeal no substantial question of law has been framed by the appellant but during the course of arguments, learned counsel for the appellant has submitted that following substantial questions of law be decided :-

1. Whether the Assistant Collector IInd Grade was competent to sanction the mutation in respect of private partition in view of Section 126 of the Punjab Land Revenue Act, 1887? The learned counsel for the appellant has submitted that according to Section 126 of the Punjab Land Revenue Act, 1887 (hereinafter mentioned as - `the Act' ) only the Assistant Collector Ist Grade is competent to sanction the mutation including the mutation in respect of partition. Since the mutation has been admittedly attested by Assistant Collector 2nd Grade ( Naib Tehsildar) and as such the same is required to be set aside. The learned counsel for the appellant to fortify his arguments has relied upon authority Arjan Singh vs. Hem Raj 1986 RRR 458 (Punjab & Haryana ) The case of the plaintiff is that no family partition has taken place between the parties. There is concurrent finding of both the Courts below that on the basis of family settlement, the land between the parties has been partitioned and mutation regarding the same has been sanctioned.

This being a concurrent finding of both the Courts below cannot be interfered in present appeal. The appellant could succeed only if he is able to prove that no partition has taken place. The trial Court observed that plaintiff himself along with defendant appeared before the Revenue official and admitted the private partition and on the basis of which specific parcel of land has been given to each individual/co-sharers. It has been observed RSA No.803 of 1985 5 that parties are in possession of separate khasra numbers, which have been allotted to them in the partition. The plaintiff admitted before the trial Court that parties are in separate cultivating possession. It is also admitted by the plaintiff before the trial Court in the cross-examination that defendants have installed their tube-wells in their respective lands and they are in exclusive possession of the land allotted to them in the partition.

It is also observed by the trial Court that plaintiff has received Rs.10,000/- as compensation towards the adjustment of the shares between the parties. The parties are near relatives and as such the finding of both the Courts below, that partition has taken place, cannot be interfered. So far as legal question raised by the appellant is concerned, the learned trial Court has rightly held that Revenue Officer has only given the approval of private partition, which has already been taken place between the parties. In case, the partition proceedings are contested, in that case, the proceedings can be conducted only by Assistant Collector Ist Grade. The plaintiff himself has executed the sale deeds in respect of specific khasra numbers, allotted to him in the private partition, rectifying the same. So far as, the authority Arjan Singh's case (supra) is concerned that authority is distinguishable to the facts of the present case as in that case, the partition was not reflected in the revenue records whereas in the present case, the partition has been duly reflected through the impugned mutation.

Otherwise according to the Land Revenue Act, if the mutation is contested, the same can be decided by the Assistant Collector Ist Grade only. However, in case the parties agreed to the mutation in that case Assistant Collector IInd Grade is competent to attest the mutation. RSA No.803 of 1985 6 In view of the above discussion, the point raised by the appellant stands determined against the appellant. Consequently, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. July 01th , 2010 (K.C. PURI) JUDGE