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Janku and ors. Vs. Nagnoo and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 30 of 1972
Judge
Reported inAIR1986HP10
ActsHindu Law
AppellantJanku and ors.
RespondentNagnoo and ors.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal allowed
Excerpt:
- .....filed a suit for declaration to the effect that they were the owners of half share in the suit land measuring 76-2-7 bighas situate in mauza neri (fully detailed in the plaint) which was liable to be partitioned in accordance with the shares of the parties. it was alleged by the plaintiffs that they had applied for partition of the land to the revenue authorities but upon the objections of the respondents (hereinafter the defendants) their application for partition was disallowed on 7-11-1967 (ex.pa) and the parties were directed to get the question of title decided through a civil court. in these circumstances, this suit was filed in the court of sub judge sundernagar on 10-5-1968.3. the defendants contested the suit and claimed that there had been a family partition between.....
Judgment:

V.P. Gupta, J.

1. Aggrieved from the judgment and decree dated 8-6-1972 passed by the Addl. District Judge, Mandi, the plaintiff appellants have preferred this appeal.

2. Briefly, the facts are that the appellants (hereinafter the plaintiffs) filed a suit for declaration to the effect that they were the owners of half share in the suit land measuring 76-2-7 bighas situate in Mauza Neri (fully detailed in the plaint) which was liable to be partitioned in accordance with the shares of the parties. It was alleged by the plaintiffs that they had applied for partition of the land to the revenue authorities but upon the objections of the respondents (hereinafter the defendants) their application for partition was disallowed on 7-11-1967 (Ex.PA) and the parties were directed to get the question of title decided through a civil Court. In these circumstances, this suit was filed in the Court of Sub Judge Sundernagar on 10-5-1968.

3. The defendants contested the suit and claimed that there had been a family partition between the parties about 47 years back, and the parties were in separate possession of their respective shares. The right of the plaintiffs to get the disputed land partitioned was denied.

4. The following issues were framed on 2911-1968:-

1. Whether the suit is within limitation? OPP

2. Whether the land in suit is liable to be partitioned? OPP

3. Whether the partition has been effected prior to the first settlement and the parties are in possession of their respective shares since that date OPD.

4. If issue No. 3 is not proved whether the defendants become owners of the suit land by adverse possession OPD

5. Whether the defendant got inferior land at the time of partition and if so. what improvement (sic) to the defendants? OPD.

6. Whether the defendants are entitled to get special costs? OPD

7. Relief.

5. The learned Addl. Sub Judge Sundernagar held that the plaintiffs' suit was within time and the land was liable to be partitioned. He further held that the defendants had not become owners by adverse possession and no private partition had been effected between the parties. The plaintiffs' suit was decreed on 24-3-1971 by him.

6. Aggrieved from the judgment of the Sub Judge, the defendants preferred an appeal No. 19 of 1971 which was decided by the Addl. District Judge, Mandi on 8-6-1972, The learned Addl. District Judge held that a private prtition of the properly had taken place between the parties and the plaintiffs were not entitled to get the disputed land partitioned, The appeal of the defendants was accepted and the judgment and decree of the Addl. Sub Judge Sundernagar was set aside. The plaintiffs' suit was dismissed.

7. I have heard the learned counsel for the parties.

8. The learned counsel for the appellants-plaintiffs contends that private partition has not been proved and the findings of the learned Addl. District Judge are wrong. It is contended that the plaintiffs are co-sharers to the extent of 1/2 and are entitled to the decree prayed for.

9. The learned counsel for the defendants-respondents supports the judgment of the learned Addl. District Judge and contends that the parties had partitioned the land long ago and were in separate possession of different parcels of land since then, The land revenue was being paid by the parties separately and they were also separately enjoying the usufruct of the land possessed by them. He contends that an inference should be drawn from the various facts that there was a private partition of the disputed land.

10. I have considered the contentions of the learned counsel for the parties and have also gone through the records of the case.

11. The plaintiffs are the descendants of Jindu s/o Kanu and defendants Nos. 1 to 5 are the descendants of Sunku s/o Kanu. Kanu had three more sons, Janth, Lohar and Tikhu, who died issueless. The plaintiffs and defendants Nos. 1 to 5 have half share each as is also proved from the various revenue records. In Ex.PB = Ex.DW 1/E Jambandi Misil Haqiat Bandobast, the plaintiffs are owners of half share and the defendants Nos. 1 to 5 are also owners of half share in disputed land measuring 76-2-7 bighas. Out of the disputed land. 0-17-10 bighas is shown in joint possession of the parties under Gairmurnkin houses. The remaining land is entered in separate possession of the parties. The plainiiffs are in possession of 18-19-8 bighas. Tikhu (defendant No. 1) in possession of 8-3-6 bighas, Soju (defendant No. 2) in possession of 8-13-6 bighas, Purkhu (defendant No. 3) in possession of 14-16-3 bighas and Lamphy (defendant No. 5) in possession of 1412-14 bighas. The land revenue is not assessed separately in the Jamabandis on the basisof the respective possession of the parties but it is assessed on the whole land measuring 76-2-7 bighas. The parties, therefore, are not in possession of the disputed land according to their shares and there is no other documentary evidence to prove that the parties are in possession of separate parcels of land according to their shares.

12. From Misil Bandobast Kanuni Sabka (Exs.DW 1/4, DW 1/B DW 1/C and DW 1/D) it is not proved that the entries relate to the disputed land. These documents also do nol prove that a partition of the disputed land was effected. The defendants have also produced copies of some receipts regarding payment of land revenue (Exs.DW 4/A. DW4/B. DW4/C. DW4/D, DW 7/A, DW7/B, DW7/C and DW 7/D). These revenue receipts only prove that a part of the land revenue was paid by some of the defendants but these are not sufficient lo prove that division of land revenue was made according to shares or on account of any partition.

13. The defendants have also produced some oral evidence. All the witnesses including the defendants state that the defendants have been cultivating the land separately for the last about 35 years and were taking its produce themselves. They also state that some of the land was broken by the defendants about 8/9 years back. There is no other evidence regarding partition of the disputed land or of any other properties of the parties.

14. In the written statement the defendants allege that a private partition look place about 47 years back, that is, in or about 1921. No deed/writing of partition was produced by the defendants and there is also no evidence to prove as to when this private partition look place between them or their ancestors. It is also not proved as to what property was put in hotch-pot in the partition and which portions of the property were allotted lo each of the cosharers/co-owners. No report was given lo the revenue authorities with the result that no mutation of partition was sanctioned. There is also no entry in the revenue records to prove that any co-sharer is in possession of separate parcel of land on account of partition. The entries on the contrary show ihat separate possessions are recorded in the capacity of a co-sharer,

15. In the case of co-sharers, every co-sharer has an interest in the whole property and also in every parcel of it and possession of the joint property by one-sharer is, in the eyes of law, possession of all, even if all but one are actually out of possession. A mere occupation of a larger portion or even of an entire joint property cannot necessarily amount to an ouster as the possession of one co-sharer is deemed to be the possession on behalf of all. If, however, the co-sharers are in possession of separate parcels of land under some arrangement, then such an arrangement cannot be disturbed except by filing proceedings For partition and during these proceedings the proper mode of partition can be framed and respective possession of the parties/co-sharers can be respected to the extent to which it is possible,

16. The learned counsel for the defendants frankly concedes that the defendants do not claim the property by adverse possession.

17. There is no oral or documentary evidence to prove a private partition of the property as has been alleged by the defendants. It is also not possible to draw any inference regarding private partition in view of the entries in the revenue records and the disproportionate portions of land possessed by the parties.

18. In view of the evidence discussed above, it is proved that the parties are co-sharers/co-owners in the disputed land and the plainiiffshave half share in the disputed land. The private partition alleged by the defendants is not proved.

19. No other point was urged before me.

20. As a result of the above discussion, the present appeal is accepted and the judgment and decree passed by the Addl. District Judge, Mandi dated 8-6-1972 is set aside and the judgment and decree passed by the Addl. Sub Judge, Mandi dated 24-3-1971 is restored. The plaintiffs' suit is decreed. In the facts and circumstances of the case the parties are left to bear their own costs.


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