If appeal is filed against mode of partition, it amounts to automatic stay of proceedings, execution of instrument of partition is only a stage towards execution of order of partition - Possession even if delivered to parties before partition is made effective will not extinguish status as a co-sharer

PUNJAB AND HARYANA HIGH COURT

Before :- Hemant Gupta, J.
RSA No. 3615 of 1987. D/d. 24.1.2005

Lal Chand (Dead) through LRs. - Appellants
Versus
Ganga Ram (Dead) through LRs. - Respondents

For the Appellant :- Mr. A.S. Tewatia, Advocate.
For the Respondent :- Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate.

Punjab and Haryana High Court, Chandigarh

JUDGMENT


Hemant Gupta, J. - The plaintiff pre-emptor is in second appeal aggrieved against the judgment and decree passed by the first Appellate Court whereby his suit for possession by way of pre-emption of the land measuring 16 kanals 11 marlas being a co-sharer and thus have a preferential right to pre-empt the sale was dismissed in appeal by the first Appellate Court.
2. The only question which has been raised before the Courts below is whether the plaintiff was a co-sharer on the date of decree passed by the learned Trial Court. According to the defendant-vendee, the land was partitioned and thus the plaintiff ceased to be co-sharer on the date of the decree of the trial Court, whereas as per the plaintiff the land was not partitioned as no instrument of partition has been drawn so far.
3. The learned trial Court found that the instrument of partition has not been drawn which is not a formality. Reliance was placed upon a single Bench judgment of Himachal Pradesh High Court reported as Shri Khem Dutt v. Palika, 1984 R.R.R. 535 : 1982 PLJ 391, to hold that the instrument of partition has not been prepared so far and consequently the partition proceedings have not been finalised and thus the plaintiff continues to be a co-sharer and that he has a superior right of pre-emption. However, the learned first Appellate Court accepted the appeal filed by the defendant-vendee on the ground that the instrument of partition has been prepared and delivered to the parties on 16.2.1987. The possession was delivered as per the copy of report Roznamcha Vakiyati dated 3.4.1987 and thus the right of pre-emption of a co-sharer stands forfeited.
4. The learned counsel for the appellant has vehemently argued that there is nothing on record that the instrument of partition was prepared in February, 1987. It is also argued that even if it is prepared in February, 1987 it will not defeat the right of the plaintiff as he continues to be co-sharer on all the three material dates i.e. on the date of sale, on the date of filing of suit and on the date of decree passed by the trial Court. Therefore, any loss of character as a co-sharer after passing of the decree by the learned Trial Court will not defeat the right of pre-emption.
5. In view of above arguments of the appellant the following substantial question of law arises for consideration in this appeal :
    Whether the suit of the plaintiff pre-emptor can be dismissed in an appeal on the basis or instrument of partition prepared after the decree passed by the trial Court ?
6. The respondent vendee sought partition of the suit land which was allowed by the Assistant Collector II Grade, Ballabgarh on 21.10.1986 wherein it was ordered that the revenue record in pursuance of the above partition be effected after Kharif, 1986 and that the instrument of partition be prepared after limitation for filing of appeal expires. Ex. P.7 is the memorandum of appeal against the said order passed by the Assistant Collector II Grade and Ex. P.8 is the order dated 24.11.1986 wherein the order passed by the Assistant Collector was stayed. The decree was passed by the learned trial Court on 17.1.1987. There is nothing on record to show that the appeal was decided before the decree was passed by the trial Court or that the instrument of partition was prepared before the said date with the effective date of partition prior to the decree passed by the trial Court.
7. The procedure for partition is contained in Chapter 9 of the Punjab Land Revenue Act, 1887. Section 121 of the said Act contemplates preparation of an instrument of partition after the partition is completed. The date on which the partition is to take effect is also to be recorded therein. Once instrument of partition is prepared, any owner or tenant to whom any land or portion of a tenancy as the case may be is allotted in proceedings for partition, shall be entitled to possession thereof as against other parties to the proceedings. Sections 121 and 122 of the Land Revenue Act reads as under :
    "121. INSTRUMENT OF PARTITION - When a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.
    122. DELIVERY OF POSSESSION OF PROPERTY ALLOTTED ON PARTITION. - An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives and a Revenue Officer shall, on application made to him for the purpose by any owner or tenant at any time within three years from the date recorded in the instrument of partition the last foregoing section give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property."
8. It is not only an order of partition which is necessary to be passed but also the instrument of partition is required to be prepared. In the present case, there is nothing on record to show as to on which date, the appeal was decided or the instrument of partition was prepared. Even if the statement in the judgment and decree passed by the first Appellate Court is to be treated as correct, the instrument of partition was prepared after the decree was passed by the learned Trial Court. The question whether the instrument of partition is required to be prepared came up of consideration before a Division Bench of Lahore High Court in a judgment reported as Hadayat Khan v. Shahamand, AIR 1924 Lahore 155, wherein it has been held that even if the sharers took possession of the plots allotted to them before Kharif 1905, their possession up to that date was merely the possession as that of co- sharers.
9. It was held to the following effect while dealing with Section 121 of the Punjab Land Revenue Act :
    "The present, however, is not such a case. There were no doubt proceedings taken with a view to effect partition long before Kharif 1905, but those proceedings culminated and found their ultimate result and expression in the instrument of partition, and that instrument provided that the land should remain joint up to Kharif 1905, and become severally only in that harvest. From this it follows that even if the sharers took possession of the plots allotted to them before Kharif 1905, their possession up to that date was merely the possession of co-sharers in separate possession of portions of the joint estate."
10. Said view has held the field and applied by the Revenue Courts within the State of Punjab. It is so apparent from an order passed by the Financial Commissioner Punjab in Kartar Singh v. Kapur Singh, 1971 P.L.J. 677. The said view has also been taken by Himachal Pradesh High Court in a judgment reported as Shri Khem Dutt v. Palika and another, 1984 R.R.R. 535 : 1982 P.L.J. 391 although dealing with Sections 133 and 134 of the Himachal Pradesh Land Revenue Act which corresponds to the provisions of Section 121 of the Punjab Land Revenue Act. Still further in Lala Ram v. Financial Commissioner, Haryana, 1992(1) RRR 231 (P&H) : AIR 1992 Punjab and Haryana 62, it has been held that the execution of instrument of partition is only a stage towards the execution of order of partition and is not appealable. It is formal order which is necessary to be prepared to recognise the fact of partition. A party to partition proceedings cannot raise the objection in drawing the instrument of partition. If the memorandum of appeal is filed against the mode of partition it amounts to an automatic stay of proceedings pending disposal of appeal.
11. A perusal of Section 122 of the Act shows that the right to take possession arises only on the basis of instrument of partition. Thus the preparation of instrument of partition is not a mere formality but is a necessary document to make a partition legally effective. The date from which the partition is to take effect is required to be indicated in the instrument of partition and possession even if delivered to the parties before the partition is made effective will not extinguish the status as a co-sharer.
12. Thus, the plaintiff was a co-sharer on the date of decree passed by the trial Court and thus has a right to pre-empt the sale. Consequently, the judgment and decree passed by the first Appellate Court is set aside and that of the Trial Court is restored while allowing appeal of the plaintiff. The plaintiff is granted two months time to deposit the money in terms of the decree passed by the trial Court.

Appeal allowed.
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