Punjab-Haryana High CourtRam Kishan And Others vs Daya Nand And Others on 31 August, 2018Author:Amit RawalBench:Amit RawalRSA No.2241 of 1991 (O&M)                                        {1}


            IN THE HIGH COURT OF PUNJAB & HARYANA
                       AT CHANDIGARH


                                           RSA No.2241 of 1991 (O&M)
                                           Date of decision:31.08.2018.

Ram Kishan and another                     ... Appellants


                           Vs.


Daya Nand and others                       ... RespondentsRSA No.2242 of 1991 (O&M)

Siri Bhagwan and others                    ... Appellants


                           Vs.


Daya Nand and others                       ... Respondents

CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

Present:-    Mr. Umesh Aggarwal, Advocate
             for the appellants.Mr. Prateek Gupta, Advocate
             for the respondents.AMIT RAWAL J.This order of mine shall dispose of two Regular Second

Appeals bearing Nos.2241 and 2242 of 1991.The appellant-defendants Nos.1 and 2 are in Regular Second

Appeals against the judgment and decree dated 03.10.1991 of the

Additional District Judge, whereby, suit for pre-emption filed by the




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respondent-plaintiffs, dismissed by the trial Court, has been decreed.The respondent-plaintiffs instituted the suit for possession by

way of pre-emption on 04.01.1989 in respect of agricultural land comprised

in khewat no.141 khata no.164 rect.killa no.121/15/1(0-12), 14(7-8), khasra

No.359 (0-2) and khata no.165 rect and killa no.31/9(7-11), kite 4 total 15

kanals 13 marlas to the extent of 3/20 share i.e. 2 kanals 10 marlas and

khewat no.142 khata no.166 rect. and killa no.8/15(7-12), 16/1(3-3), 9/23(6-16), 23/24/1(4-18), 24/3(1-11), 57/15/4(3-4), 16(7-7) khasra no.121(0-13),

285(0-2), total 35 kanals 13 marlas to the extent of 27/160 share i.e. 6

kanals 4 marlas total measuring 8 kanals 14 marlas situated in village

Luksar, Tehsil Bahadurgarh, District Rohtak on the premise that plaintiffs

and defendants have been co-sharers of the same khewat. Defendant no.3-

Rajinder Singh son of Raghbir sold the disputed land out of the joint khewat

to defendants no.1 and 2 for a sale consideration of `49,500/-, therefore, the

law of pre-emption which was in vogue, first right of purchase vested with

the co-sharers, i.e., plaintiffs. It was averred that defendants no.1 and 2 were

asked several times to admit the claim of the plaintiffs on payment of

`49,500/- plus the costs of stamp and registration charges but did not accede

and therefore, the suit was filed.Defendants No.1 and 2 filed joint written statement raising

various preliminary objections vis-a-vis court fee, jurisdiction etc. On merit,

it was alleged that at the time of registration of the sale deed on 26.10.1988,

plaintiffs were present in the office of Registrar. It was denied that plaintiffs




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were co-sharers in the disputed khewat at the time of sale nor at the time of

filing of present suit. Replication was filed controverting the allegations

made in the plaint.Since the parties were at variance, the trial Court framed the

following issues:-"1.       Whether the plaintiffs have superior right of pre-emption

            to pre-empt the suit land in question?OPP2.        Relief."The plaintiffs examined Daya Nand as PW1 and tendered

jamabandi for the year 1984-85 as Ex.P1 and Ex.P.2 and sale deed dated

26.10.1988 as Ex.P3, whereas, the defendants examined Jit Singh as DW1

and tendered Naksha 'B' as Ex.D1. Naksha G. as Ex.D2, order of S.D.M,

Bahadurgarh as Ex.D3, order dated 28.3.1990 of Assistant Collector Ist

Grade, Bahadurgarh as Ex.D4 and site plan as Ex.D5, order dated 14.3.1990

of A.C.Ist Grade as Ex.D8, order dated 28.3.1990 of A.C.Ist Grade as Ex.D9

and copy of pedigree table as Ex.10 and Ex.D11.The trial Court on the basis of evidence brought on record did

not agree with the contention of plaintiffs that the status of the plaintiffs

with defendants was of co-sharers as partition proceedings had already been

commenced and few days after filing of the suit, naksha bey i.e., site plan

suggesting the mode of partition before ordering sanad takshim i.e., final

document of partition had been prepared.The Lower Appellate Court in appeal preferred by the plaintiffs

decreed the suit as noticed above, therefore, the appeal by defendants no.1




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and 2.Mr. Umesh Aggarwal, learned counsel appearing on behalf of

the appellant-defendants submitted that judgment and decree of the Lower

Appellate Court is not sustainable in the eyes of law except for final

document of partition i.e. naksha zeem (zeal) which was prepared post

decree, i.e., on 27.3.1992, whereas the suit was decreed on 31.10.1990 but

fact of the matter is that naksha bey suggesting the mode of partition had

already been prepared during the pendency of the suit, i.e., on 16.01.1989 as

the suit was filed on 04.01.1989, in essence, plaintiffs were aware of the

partition proceedings and therefore, did not have the locus standi to institute

the suit.In support of the aforementioned contention, relied upon the

judgment rendered by this Court inZora Singh Vs. Laxmi Narain and

others2014(62) RCR (Civil) 787, wherein, it has been held that plaintiffs

had lost their status of co-sharers on confirmation of proposed mode of

partition much before passing of the decree by the trial Court, in other

words, it was stated that right of pre-emption was not alive till passing of

decree by the trial Court, therefore, the suit could not have been decreed.Per contra, Mr. Prateek Gupta, learned counsel appearing on

behalf of the respondent-plaintiffs submitted that naksha bey is not a final

document of partition, it is only sanad takshim as per the provisions ofPunjab Land Revenue Act, 1887(in short "1887 Act") and status of the

parties at the time of filing of the suit on 04.01.1989 was of co-sharers in the




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joint khewat and therefore, the judgment and decree of the Lower Appellate

Court being the last Court of facts and law is liable to be upheld.In support of the aforementioned contention, relied upon the

judgment rendered by this Court inJamil Vs. Hassan Mohammad and

others2014(3) RCR (Civil) 324 to contend that even if the possession as

per the site plan had been delivered to the parties before the partition was

made effective, it would not extinguish the status as co-sharer.The partition

is permitted only when naksha zeem is called and approved, in other words,

the separation of jointness in status will come into force with the delivery of

possession as per the date fixed in the instrument of partition and on similar

lines,Jeet Ram Vs. Sadhu Ram2013(22) RCR (Civil) 653, wherein while

interpreting the provisions ofSection 123of 1887 Act, it was held that

naksha bey which has effectively been relied upon by the defendants cannot

be amounting to cessation of ownership. It would be a sanad takshim, i.e.,

instrument of partition which would create division.On similar lines, also relied upon Division Bench judgment of

this Court inAmar Khan and others Vs. State of Punjab and others2009

(1) Recent Civil Reports (Civil) 741.Mr. Prateek Gupta also laid emphasis on the judgment cited by

the appellants inZora Singh's case (supra), wherein, the Court held that

status of co-sharer would cease to exist only on confirmation of proposed

mode of partition before passing of the final decree. However, in the instant

case, for the sake of repetition, sanad takshim, i.e, final document of




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partition was passed on 27.03.1992, whereas, the suit had already been

dismissed, vide judgment and decree dated 31.10.1990 and thus, urged this

Court for upholding the findings rendered by the Lower Appellate Court.I have heard the learned counsel for the parties, appraised the

judgments and decrees as well as record of both the Courts below.Section 15of Punjab Pre-emption Act, 1913 (in short "1913

Act") at the relevant point of time before it was repealed empowered the co-

sharer to pre-empt the sale deed by other co-sharer in respect of land arising

out of joint khewat by depositing the amount of sale deed. However, would

be precluded from maintaining the suit in case the partition proceedings had

already been culminated by issuance of sanad takshim, i.e. final document

of partition. After repealing the aforementioned Act, right to pre-empt the

land only vested with the tenants.Now the question raised in the present appeals which has

already been answered by the Appellate Court against the appellant-

defendants is whether the preparation of naksha bey on 16.01.1989, i.e.,

during the pendency of the suit which was filed on 04.01.1989, would be a

final document of partition and leads to cessation of co-sharer between the

plaintiffs and defendant no.3 or not. In order to answer the aforementioned

question, I would be dealing with procedure and the judgments cited at bar.Section 111of 1887 Act provides the procedure for submission

of an application for partition by a joint owner or joint tenant. An

application can be submitted to revenue officer for partition of the share in

the land or tenancy subject to the restriction and limitations on partition




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proposed inSection 112of 1887 Act, which is not applicable in the present

case.Section 121of 1887 Act deals with the preparation of instrument of

partition, when the partition proceedings are completed, in essence, 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, whereas,

as perSection 122, owner and tenant shall be entitled to the possession

thereof against the other parties to the proceedings. For the sake of brevity,Sections 121and122of 1887 Act read 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 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 far as it

            concerns the applicant as if it were a decree for immovable

            property."7 of 11::: Downloaded on - 08-10-2018 00:54:59 :::RSA No.2241 of 1991 (O&M)                                         {8}


             Before drawing the instrument of partition as perSection 116of 1887 Act, the revenue officer shall ascertain the questions with regard to

the property to be divided or mode of partition. For the sake of brevity,Section 116reads as under:-"116. Procedure for admission of application: -If the

             Revenue-officer, does not refuse the application under the last

             foregoing section, he shall ascertain the question, if any, in

             dispute between any of the persons interested distinguishing

             between--(a) question as to title in the property of which partition

                   is sought; and(b) questions as to the property to be divided, or the

                   mode of making the partition."The revenue officer on receipt of the application will call for

naksha alf and thereafter, the parties will be at liberty to file the objections.

Naksha alf only refers to the share of the parties, land in their possession

and excess or deficiency is to be made good. Thereafter, the parties are

called upon to file the objections. Mode of partition (takika taksheem) in

which the land is to be partitioned is prepared on the basis of statements of

the parties and thereafter, the mode of partition is approved. Any effected

party can also avail the right of appeal. Thereafter, naksha khe is asked for

and the parties are also at liberty to file the objections. After the decision of

naksha khe and its approval. The purpose of nakhsa khe is that all the co-

sharers are identified to be possessing the particular area on completion of




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the partition and thereafter, naksha zeem is called and finally, instrument of

partition is prepared underSection 121of 1887 Act.Naksha bey is prior to issuance of naksha khe. Naksha kha and

naksha bey are also almost like a preliminary decree and thereafter, while

drawing final decree, naksha zeem is prepared. In the instant case, the

instrument of partition, thus, at the time of decretal of the suit was not

prepared. Concededly, the same was prepared on 27.03.1992, much after

dismissal of the suit, i.e., on 31.10.1990. This is what the import of the

judgment and decree of the Lower Appellate Court.In view of such position, judgment relied upon in Zora Singh's

case (supra) does not come to the aid of the appellants, for, non-

maintainability of the suit as in other judgments, it has been consistently

held that status of the co-sharers ceased to exist only after the final partition

order is passed but in the present case, there is no such partition order. Thus,

question posed hereinabove is answered in the aforementioned manner.Before parting with the judgment, I cannot remain oblivious of

the fact that during the pendency of the appeals, two orders dated

12.11.1991 and 12.12.1991 were passed. For the sake of brevity, the same

read as under:-12.11.1991

             "Present:    Mr. Ashok Aggarwal, Senior Advocate with
                          Mr. Anil Khetarpal, Advocate.Notice.9 of 11::: Downloaded on - 08-10-2018 00:54:59 :::RSA No.2241 of 1991 (O&M)                                       {10}Dispossession stayed ad interim. Notice regarding

              stay for 5.12.1991."12.12.1991

              Present:       Mr. Ashok Aggarwal, Senior Advocate with
                             Mr. Subhash Goel, Advocate.Mr. R.S.Mittal, Senior Advocate with
                             Mr. P.K.Sharma, Advocate.After hearing the learned counsel for the parties, the ad-interim

              stay order is made absolute subject to the following

              conditions:-i)     The appellants will furnish security for due performance

              of the decree ultimately passed by this Court within three

              months from today. The security will be accepted by the

              executing Court after notice to the decree-holder-respondents.ii)    The respondent-decree-holders are permitted to withdraw

              the pre-emption amount and the sale price deposited by them

              and the same will be re-deposited as and when directed by this

              Court while deciding the appeal.C.M. is disposed of accordingly."From the perusal of the aforementioned orders, respondent-

decree holders were permitted to withdraw the pre-emption amount.In view of the aforementioned, two months time is granted to

the decree holders to re-deposit the amount failing which judgment and

decree of the Lower Appellate Court affirmed by this Court will become un-

executable.10 of 11::: Downloaded on - 08-10-2018 00:54:59 :::RSA No.2241 of 1991 (O&M)                                     {11}As an upshot of my findings, I do not find any illegality and

perversity in the judgment and decree of the Lower Appellate Court being

the last Court of facts and law, much less no substantial question of law

arises for adjudication of the present appeal.No ground is made out for interference in the impugned

judgment and decree.The appeals are dismissed.(AMIT RAWAL)
                                                     JUDGE
August 31, 2018
savita

Whether Speaking/Reasoned                            Yes/No
Whether Reportable                                   Yes/No




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