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Khem Datt and ors. Vs. Palkia and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 215 of 1981
Judge
ActsHimachal Pradesh Land Revenue Act, 1954 - Sections 133 and 134; ;Himachal Pradesh Land Records Manual Rules - Rule 17
AppellantKhem Datt and ors.
RespondentPalkia and anr.
Appellant Advocate Chhabil Dass, Adv.
Respondent Advocate Devinder Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredMulraj v. Murti Raghunathji Maharaj
Excerpt:
- .....appeal to this court.4. the only point which has been canvassed at the bar by shri chhabil dass, learned counsel for the defendants, is that since the partition between the plaintiff and the defendants had been completed and the possession of their respective shares had been delivered to them, the plaintiff had lost his status as a co-sharer with the defendants. it is further contended that the partition in fact had been completed but for the preparing of the instrument of partition. on the contrary, it is vehemently contended by shri d. gupta, learned counsel for the' plaintiff, that the partition cannot be legally effective unless an instrument of partition is drawn. the next contention of the learned counsel is that the possession as delivered to the parties is void inasmuch as.....
Judgment:

H.S. Thakur, J.

1. This appeal is directed against the judgment and decree passed by the learned District Judge, Solan Sessions Division, at Nahan, dated 5th Nov. 1981.

2. The facts relevant to the case may be stated, Shri Palkia respondent No. 1 (hereinafter referred to as 'the plaintiff) filed a suit against the appellants (hereinafter referred to as 'the defendants') and pro forma-respondent No. 2 for the possession of land in suit, by pre-emption on the basis of his being a co-sharer with pro forma-respondent No. 2. It may be pointed out that the respondent No. 2 had sold the land in suit to the defendants. As such, respondent No. 2 was also impleaded as a pro forma-defendant. The learned Senior Sub Judge, Nahan, dismissed the suit of the plaintiff on 29th' Oct. 1979, on the ground that since a partition had taken place between the plaintiff and the defendants, the status of the plaintiff as a co-sharer stood extinguished. The plaintiff preferred an appeal in the Court of the learned District Judge who reversed the judgment of the trial court and passed a decree for possession in favour of the plaintiff, holding that the partition had not been legally effectivesince the instrument of partition had not been drawn.

3. Aggrieved by the said decree and judgment of the learned District Judge, the defendants have preferred this appeal to this Court.

4. The only point which has been canvassed at the bar by Shri Chhabil Dass, learned counsel for the defendants, is that since the partition between the plaintiff and the defendants had been completed and the possession of their respective shares had been delivered to them, the plaintiff had lost his status as a co-sharer with the defendants. It is further contended that the partition in fact had been completed but for the preparing of the instrument of partition. On the contrary, it is vehemently contended by Shri D. Gupta, learned counsel for the' plaintiff, that the partition cannot be legally effective unless an instrument of partition is drawn. The next contention of the learned counsel is that the possession as delivered to the parties is void inasmuch as according to the warrant of possession the same could be delivered on or before 30th June, 1977, and the execution of the warrant had to be reported by that date. The possession in fact had been delivered on 30th July, 1977. According to the learned counsel, even if the possession was then delivered, the same was bad in the eyes of law. It is also contended that the plaintiff on filing a revision petition before the Divisional Commissioner, Himachal Pradesh, obtained a stay order dated 16th August, 1977. Copy of the order placed on record (Ex. P. 3) reads as under :

'I have heard the learned counsel for the appellant. Stay is granted regarding signing of the instrument of partition till the decision of the appeal. Order be communicated telegraphically at the ex-pense of the appellant.'

It is pointed out that no doubt the Assistant Collector First Grade signed the instrument of partition on 18th August, 1977 in spite of the stay order but subsequently the said Assistant Collector on 21st June, 1982 revoked the same when the plaintiff produced a copy of the stay order.

5. I have heard the learned counsel for the parties and have also perused the record. It is not disputed by the learned counsel for the parties that the instrument of partition which' was pre-pared by the Assistant Collector had been subsequently revoked, and treated as ineffective. The first question which is material to decide this appeal is whether the partition can be considered to be legally effective till the instrument of partition is drawn? It has been observed by the lower appellate Court that under Sections 133 and 134 of the Himachal Pradesh Land Revenue Act, which relate to the completion of the partition proceedings, instrument of partition has to be prepared wherein the date on which the partition is to take effect is to be recorded and thereafter under S. 134 the delivery of possession of the property allotted on partition is to be effected between the parties. It is further observed that the instrument of partition has got the force and form of a decree. The learned District Judge has also referred to Chap. 18. Rule 17 of the Himachal Pradesh Land Records Manual and has reproduced the same in his judgment. He has also reproduced the form prescribed for the preparation of instrument of partition. Eventually, the learned District Judge has come to the conclusion that instrument of partition is not an empty formality in the process of finalisation of partition but is a sub-stanitial documented proceedings authenticating matters of partition, before the actual possession is transferred to the parties. It is also observed that it is an exercise in futility to contend and countenance any argument that partition can be completed resulting in legal cessation of' the co-sharers' status without the instrument of partition being prepared and in accordance therewith possession delivered to the parties to the partition proceedings. Consequently, he has held that in the absence of the preparation of instrument of partition and the delivery of possession of the allotted portions of the joint land to the parties, no severance of the status of co-sharers takes place.

6. The learned counsel for the parties have mainly placed reliance on a decision in Hadayat Khan v. Shaha-mand (AIR 1924 Lah 155). The relevant portion as referred to may be reproduced:

'It is necessary to consider what the expression 'completion of partition proceedings' means. It means simply that all disputes raised before the Revenue Officer had been decided by him but up to that date the joint estatesremained joint. The parties had not been even inducted into the several shares which it was proposed to allot to them under the scheme of any partition, and apparently no formal order of that kind was ever passed. After appeals to the Settlement Officer and applications for revision to the Financial Commissioner had been rejected the Revenue Officer gave orders for the drawing up of the deed of partition and the deed of partition was accordingly drawn up on the 1st Dec. 1905, and in obedience to the provision of Section 121 of the Land Revenue Act it was provided in that deed that the partition should take effect from kharif 1905. It is, of course, quite possible that a partition should be made, and possession of the several lots be given and taken, and that no formal instrument of partition be prepared, in which case no doubt the giving and taking of possession by the several sharers of their several lots would be held to be the date on which the joint holding ceased to be joint and became severalty. 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 severalty 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.'

On the basis of the above decision, it is contended by the learned counsel for the defendants that since the possession had been delivered to the parties of their respective shares, the partition stood completed. On the other had, it is asserted by the learned counsel for the plaintiff that the operative portion of the judgment clearly indicates that even if the sharers took possession of the plots allotted to them their such possession till the preparation of the instrument of partition was merely the possession of co-sharers in separate possession of portions of the joint estate.

7. The next relevant decision on which reliance has been placed by the learned counsel for the defendants is a decision of the Punjab & Haryana HighCourt in Smt. Har Deyi v. Ram Jas (1974 Pun Lj 345). In that case, an order was passed by the Revenue Officer on 21st May, 1968 in the following terms:

'Counsel for the parties present. Demarcation has been effected on the spot. Partition has been effected according to the plan Now, naqsha seem be obtained for 4-6-1968.'

On 17th June, 1968, another order was passed by the Revenue Officer which recorded that since the period of limitation for filing an appeal against the order dated 21st May, 1968 had expired, therefore, instrument of partition prepared, that was to take effect from Rabi, 1968. On these facts, it was observed that by June, 1968, the joint status of the parties had been severed. The learned counsel for the plaintiff has invited my attention to a decision of a Division Bench of Allahabad High Court in Ish-war Datt v. Mahesh Datt, (AIR 1925 All 747). In this decision, it was held that although the partition proceedings had been brought to an end yet for the purpose of pre-emption the previous relations between the parties were still in existence and did not determine until the partition became effective. On the basis of this judgment, it is contended that even if partition proceedings were brought to an end, the same could not be considered to be effective till the instrument of partition was prepared. It is further pointed out that the stay order for not signing the instrument or partition was obtained by the plaintiff with the purpose that the partition may not be effective and the Divisional Commissioner had in fact made the order with this purpose. The learned counsel has also referred to a decision in Smt. Mathri v. State of Punjab, (AIR 1964 SC 986). While interpreting the provisions as contained under Rules 24 and 25 of Civil P. C. their Lordships observed as under (at p. 989) :

'An examination of the provisions of Rules 24 and 25 of Order 21' of Civil P. C. makes the position clear. Rule 24 deals with the issue of process for the execution of decrees and provides in Sub-rule (3) that in every such process 'a day shall be specified on or before which it shall be executed.' Rule 25 then proceeds to say that the officer entrusted with the execution of the process shall endorse thereon the date on and the manner in which it was executed and further that if the latest day specified in the pro-cess for the return thereof has been exceeded the reason of the delay or if it was not executed the reason why it was not executed, and shall return the process with such endorsement to the Court. Mr. Khanna has contended that the words 'reason of the delay' in Rule 25 contemplates a situation where the process has been executed after the date mentioned in it under Rule 24. In our opinion, there is no substance in this contention. If Rule 25 be read as a whole and in the light of the provision in Sub-rule (3) of Rule 24 it is Quite clear that the 'delay'1 mentioned in Rule 25 refers to the delay in returninig the process whether after or without execution and not to any delay in execution. The words in Sub-rule (3) of Rule 24 as quoted above clearly show the intention of the legislature that the execution must be completed by 'the date specified on the process for this purpose. To hold otherwise would be to ignore the force of the words, 'on or before which it shall be executed'. It does not stand to reason that after providing in Rule 24 that the process must be executed on or before the date specified on it for that purpose, the legislature would proceed to undo the effect of these words 'shall be executed' by permitting execution even after that date. There is no justification for reading such intention in the use of the words 'the reason of the delay'. These words, as we have already stated, ran on an ordinary grammatical interpretation be referred to the delay in returning the process to the Court. We are thus clearly of the opinion that the warrants in the present case where a date in April had been specified as the date on or before which they had to be executed caused to be executable in law before June 7, 1960.'

On the strength of this decision, it is argued that since the possession of the respective shares of the parties was delivered after the date of its execution had expired, the possession so delivered was illegal and ineffective. The learned counsel has also drawn my attention to a decision in Mulraj v. Murti Raghunathji Maharaj, (AIR 1967 SC 1386) to show that even if the instrument of partition was prepared by the Revenue Officer in spite of the stay order granted by the Divisional Commissioner, the preparation of the same was illegal and was rightly revoked by the Revenue Officer after he was in-formed about the stay order. He has specifically referred to the observations made in para 11 of the said judgment. The relevant observations may be reproduced (at p. 1390):--

'Though the court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the Court' has knowledge of the stay order. We are of opinion that Section 151 of Civil P. C. would always be available to the Court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under Section 151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the parly concerned asks it to do so. Though, therefore, the court executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set aside the proceedings taken between the time when the stay order was passed and the time when it was brought to its notice, if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside.'

8. I have considered the arguments advanced by the learned counsel for the parties. I have perused the relevant provisions of the Himachal Pradesh Land Revenue Act. I have also perused the form prescribed for preparing an instrument of partition under the Himachal Pradesh Land Records Manual and have also considered Chapter 18 and Rule 17 thereof. The lower Appellate Court has reproduced the same in its judgment. Sections 133 and 134 of the Himachal Pradesh Land Revenue Act which are relevant for the purpose may be reproduced:--

'133. 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.

134. Delivery of possession of property allotted on partition.-- An owneror 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 such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so as it concerns the applicant as if it were a decree for immovable property.'

9. As a result, I agree with the lower Appellate Court that the preparation of the instrument of partition is not a mere formality but it is a necessary document to make a partition legally effective. It is in the instrument of partition that the date from which the partition is to take effect has to be indicated. I also agree with the learned counsel for the plaintiff that the possession even if delivered to the parties before the partition was made effective, did not extinguish the status of the plaintiff as a co-sharer. Moreover, the order for executing the warrant of possession was so executed after the validity of the same had expired. As such, even if the possession had been delivered to the respective parties, the same was ineffective. I further agree with the contention of the learned counsel for the plaintiff that the Revenue Officer had rightly revoked the instrument of partition which was prepared in spite of the stay order obtained by the plaintiff.

10. For the foregoing reasons, I am of the view that the partition has not become legally effective so as to sever the status of the plaintiff as a co-sharer in the land in suit.

11. The result of the above discussion is that the appeal is dismissed with costs, and the decree and judgment passed by the lower Appellate Court is affirmed.


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