Dhara Singh & Ors. v. Chatru & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. D. Bansal, Advocate for the appellants. Mr. Ashwani Talwar, Advocate for respondents no.1 to 16. * * * L. N. MITTAL, J. (Oral) : This is second appeal by some of the defendants, having remained unsuccessful in both the courts below. Chatru – plaintiff-respondent no.1 and Manphool – plaintiff no.2 (since deceased and represented by respondents no. 2 to 16 as his legal representatives) filed suit for partition of 05 kanals 06 marlas land claiming to have one-third share therein. Some of the defendants were proceeded ex-parte, whereas the remaining defendants contested the suit and inter alia pleaded that question R. S. A. No. 3825 of 2007 2 title and ownership was already pending before Director of Consolidation of Holdings for adjudicating the shares of the parties in correct and proper manner. It was also pleaded that the plaintiffs have already sold and mortgaged some of the lands, which is required to be adjusted as the plaintiffs got recorded excess share in revenue record by misrepresentation etc.

Plea of private partition was also raised. The defendants claimed to be in possession of their share including buildings and houses constructed by them after private partition. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Safidon, vide judgment and decree dated 20.01.2005, decreed the plaintiffs' suit for partition and passed preliminary decree. First appeal preferred by some of the defendants has been dismissed by learned Additional District Judge, Jind, vide judgment and decree dated 22.11.2006. Feeling aggrieved, instant second appeal has been preferred by some of the defendants. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that suit land measuring 05 kanals 06 marlas is part of 231 bighas 01 biswa land and the plaintiffs had already sold land out of it in excess of their share and therefore, the plaintiffs are left with no share in the suit land.

It was pointed out that Director of Consolidation of Holdings, vide order dated 13.02.2004 R. S. A. No. 3825 of 2007 3 (Ex.D-1) held that the plaintiffs had share of 57 bighas 15 biswas i.e. one- fourth share in 231 bighas 01 biswa land, but the plaintiffs had already sold 61 bighas 01 biswa land out of the said joint land and thus, they had already sold land in excess of their share. It was thus contended that the plaintiffs are left with no share in the suit land. On 19.05.2010, when the aforesaid plea was raised, counsel for respondents no.1 to 16 contended that the suit land measuring 05 kanals 06 marlas, which is abadi land, is not part of 231 bighas 01 biswa land referred to in order dated 13.02.2004 Ex.D-1. However, in affidavit dated

30.07.2010 of respondent no.5, it was conceded that the suit land measuring 05 kanals 06 marlas is part of 231 bighas 01 biswa land mentioned in order Ex.D-1. Faced with the aforesaid situation, learned counsel for respondents no.1 to 16 contended that vide order dated 13.02.2004 Ex.D-1, the Director, Consolidation of Holdings, remanded the matter to Consolidation Officer with certain directions and the Consolidation Officer decided the matter on 21.02.2005 and in appeal preferred by the plaintiffs, the Settlement Officer, vide order dated 19.12.2005, set aside the order dated 21.02.2005 of the Consolidation Officer and in further appeal by the appellants, Deputy Director, Consolidation, set aside the order ated

19.12.2005 passed by the Settlement Officer and remanded the case to Settlement Officer, where the proceedings are still pending. It was thus R. S. A. No. 3825 of 2007 4 contended that order Ex.D-1 has not attained finality and therefore, it cannot be said that plaintiffs are left with no share in the suit land. I have carefully considered the rival contentions. Perusal of order Ex.D-1 dated 13.02.2004 reveals that there is a categorical finding in the said order by the Director, Consolidation of Holdings that the plaintiffs had already sold 61 bighas 01 biswa land, which is in excess of their share of 57 bighas 15 biswas land in the total joint land measuring 231 bighas 01 biswa. The matter was remanded by the Director by the said order Ex.D-1 to the Consolidation Officer to correct the record accordingly. However, the finding that plaintiffs had already sold land in excess of their share has attained finality and was not challenged by either party.

Remand of the case by the Director by order Ex.D-1 to Consolidation Officer has no bearing on the said finding because the case was remanded to Consolidation Officer to only implement the said finding in the record. It may be added that in appeal preferred against order dated 19.12.2005 of the Settlement Officer, vide order dated 30.04.2007 (Annexure P-1) passed by Assistant Director, Consolidation, order dated 19.12.2005 of the Settlement Officer was set aside and the case was remanded to the said Settlement Officer. In order dated 30.04.2007 (Annexure P-1) also, the finding recorded in Ex.D-1 dated 13.02.2004 has been reiterated that the plaintiffs have already sold 61 bighas 01 biswa land, which is in excess of their share being 57 bighas 15 biswas only i.e. one-fourth share in 231 bighas 01 biswa R. S. A. No. 3825 of 2007 5 land. It is thus manifest that suit land measuring 05 kanals 06 marlas is part of 231 bighas 01 biswa land, in which the plaintiffs had total share equivalent to 57 bighas 15 biswas, but they have already sold 61 bighas 01 biswa out of it and thus, the plaintiffs have already sold land in excess of their share and therefore, the plaintiffs are left with no share in 231 bighas 01 biswa land, which includes the suit land measuring 05 kanals 06 marlas.

In other words, the plaintiffs are left with no share in the suit land measuring 05 kanals 06 marlas and therefore, they cannot seek partition thereof. Following substantial question of law arises for determination in the instant second appeal :-

Whether the finding of the courts below that plaintiffs have one-third share in the suit land measuring 05 kanals 06 marlas is illegal, perverse and unsustainable and is based on misreading and misappreciation of evidence ?

For the reasons already recorded herein before, the aforesaid substantial question of law is answered in favour of defendants and against plaintiffs/respondents no.1 to 16. It is held that plaintiffs are left with no share in the suit land having already sold land in excess of their share in the R. S. A. No. 3825 of 2007 6 total joint land measuring 231 bighas 01 biswa, which included the suit land measuring 05 kanals 06 marlas. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside and suit filed by the plaintiffs/respondents no.1 to 16 for partition of the suit land stands dismissed. November 11, 2010 monika ( L. N. MITTAL ) JUDGE