Surat Ram Vs. Diwan Chand Through Lrs. and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.orderrajwant sandhu, i.a.s.1. these are two revision petitions of which the first one i.e. revision petition no. 330/98 has been filed against an order dated 12.11.98 passed by the divisional commissioner, shimla in revision petition no. 100/98 while the second, i.e. revision petition no. 322/98 has arisen from a recommendation dated 12.11.1998 made by the divisional commissioner, shimla in revision petition no. 106/98. the facts, points at issue and the parties in these two revision petitions being the same, both are being disposed off vide this single order.2. brief facts of the case are that the parties in dispute are owners in possession of land situated in revenue villages bahli, bhuttidhar and pamlai in tehsil kumarsain, district shimla. shi. surat ram applied for partition of the said land held in joint ownership before the assistant collector 1st grade, kumarsain. during the proceedings, shi. diwan chand and ors. filed a statement before the assistant collector that a private partition had taken place between the parties in the year 1955 and accordingly, the parties are in exclusive possession of the areas with them and they have invested in raising orchards etc. separately. in the partition applications pertaining to revenue villages bahli and pamlai. the assistant collector, 1st grade held on 13-10-1995 that since the parties have raised a question of title on the basis of an unregistered document which can not be brushed aside simply because it is unregistered, the same has to be adjudicated upon by a court of competent jurisdiction. shri surat ram filed two appeals against this order of the assistant collector before the sub divisional collector, rampur bushehar. in the meanwhile the third application for partition pertaining to revenue village bhuttidhar was marked by the assistant collector 1st grade to the assistant collector 2nd grade for framing mode of partition. the plea of adverse possession was taken up before the assistant collector 2nd grade who, after examining the document of private partition observed that the same has no reference to the land under partition and hence he rejected the plea of title and proceeded to frame the mode of partition on 11.10.1994. the assistant collector 1st grade accepted the mode of partition on 20.8.1996 after observing that the parties never sought confirmation of the purported private partition under section 145 of the h.p. land revenue act, 1954. shri diwan chand and others felt aggrieved with this order of the assistant collector, 1st grade and they too filed an appeal before the sub divisional collector, rampur bushehar. the learend sub divisional collector decided all the three appeals vide a common order dated 19-3-1998 holding that no question of title is involved in the cases. he therefore, set aside the order of the assistant collector 151 grade passed on 13-10-1995 relating to villages bahli and pamlai wherein the latter had held that a question of title was involved which the parties should get settled from a court of competent jurisdiction. the learned collector upheld the order dated 20-8-1996 of the assistant collector 1st grade relating to laud situated in village bhuttidhar, wherein the latter had held that no question of title was involved. shri diwan chand and others assailed the order of the collector before the learned divisional commissioner, shimla on the grounds that the parties have executed a private partition in the year 1955 and have been separately and exclusively owning land which they have developed separately and hence a clear question of title was involved in this case. it was averred that they were not afforded opportunity to lead evidence in the matter otherwise they would have proved that the laud in question stood already partitioned. it was contended that shri surat ram had not disputed the factum of private partition before the assistant collector, 1st grade and that the collector has also committed irregularity and illegality in passing his order. the learned commissioner, held in both the revision petitions filed by shri diwan chand and others that since the parties had executed a document of private partition and they were in long standing separate record of possession, therefore, a question of title was involved which must be settled by the civil court. he therefore, set aside the order of the collector and upheld the order of the assistant collector, 1st grade kumarsain dated 13-10-1995 qua the land situated in villages bahli and pamlai, whereby it had been held that a question of title was involved. at the same time he held that the orders of both the assistant collector as well as the sub divisional collector holding that the question of title is not involved qua the land situated in village bhuttidhar are required to be set aside. he has recommended the matter to this court for passing of appropriate orders.3. the record of the courts below was called for and examined and the arguments advanced by the learned counsel for the parties were heard. the written arguments submitted on behalf of shri surat ram were also placed on record and were duly considered. it has been stressed on behalf of shri surat ram that the claim of private partition having been effected in 1955 could not be relied upon as this alleged private partition had never been given effect to in the revenue record. at best it could be considered a family arrangement where different persons were in occupation of different portions of the land. it was stressed that the learned collector while passing his order dated 19-3-1098 had rightly held that the alleged document of partition was just a family arrangement and the assistant collector 1st grade, kumarsain had given a finding on an issue of title being there, without any basis, in case nos. 5/90/5/95 and 4/90/7/95. moreover the order of the learned commissioner taking the view that the order of the learned collector should be set aside was based on his opinion that a question of title existed in the matter due to the alleged partition of 1995. the orders of the learned divisional commissioner in the matter were not reasonable.4. the learned counsel for shri diwan chand and others stressed the issue of private partition and stated that the same could not be disturbed by way of partition proceedings being taken up before the assistant collector, 1st grade. since an issue of title had been raised, this was required to be resolved first before proceedings ahead in the matter.5. having perused the record and hearing the arguments advanced on behalf of both the parties i am of the opinion that the learned commissioner has placed reliance upon the document of 1955 regarding the family arrangement. if appears that the provision of section 135 of the act ibid has been lost sight of in the matter since the same requires that a private partition must be given effect to in the revenue records. in this case the partition is claimed to have taken place in the year 1955 while the proceedings of partition commenced before the assistant collector 1st grade in the year 1990. there was ample time for the parties to get the agreement regarding family partition, if any, implemented in the revenue record but they failed to do so and this plea cannot be raised after the partition proceedings have commenced. however, from the perusal of the copies of jamabandi of all the three relevant revenue villages it appears that the parties are in possession over separate parcels of land. as per the settled principles of partition they are required to be allotted land in their respective possessions as far as possible within the extent of their shares. hence, while not accepting the recommendation made by the learned commissioner to the extent of his observations that a question of title is involved in the matter, and setting aside his order in both the revision petitions to this effect, i remand the matter back to the assistant collector, 1st grade kumarsain with the directions that he may proceed with the partition in all the three revenue villages afresh after providing due opportunity to the parties to put forth their evidence regarding their possessions over specific areas and keeping in view the settled principles of partition by allowing the parties to retain the land in their respective possessions within the extent of their shares keeping also the situation regarding classification and valuation in view.6. announced in the open court today on 6-11-2006. the record of the courts below may be returned. the file may be consigned to the record room after due completion.

Judgment:
ORDER

Rajwant Sandhu, I.A.S.

1. These are two revision petitions of which the first one i.e. revision petition No. 330/98 has been filed against an order dated 12.11.98 passed by the Divisional Commissioner, Shimla in revision petition No. 100/98 while the second, i.e. revision petition No. 322/98 has arisen from a recommendation dated 12.11.1998 made by the Divisional Commissioner, Shimla in revision petition No. 106/98. The facts, points at issue and the parties in these two revision petitions being the same, both are being disposed off vide this single order.

2. Brief facts of the case are that the parties in dispute are owners in possession of land situated in revenue villages Bahli, Bhuttidhar and Pamlai in Tehsil Kumarsain, District Shimla. Shi. Surat Ram applied for partition of the said land held in joint ownership before the Assistant Collector 1st Grade, Kumarsain. During the proceedings, Shi. Diwan Chand and Ors. filed a statement before the Assistant Collector that a private partition had taken place between the parties in the year 1955 and accordingly, the parties are in exclusive possession of the areas with them and they have invested in raising orchards etc. separately. In the partition applications pertaining to revenue villages Bahli and Pamlai. the Assistant Collector, 1st Grade held on 13-10-1995 that since the parties have raised a question of title on the basis of an unregistered document which can not be brushed aside simply because it is unregistered, the same has to be adjudicated upon by a Court of competent jurisdiction. Shri Surat Ram filed two appeals against this order of the Assistant Collector before the Sub Divisional Collector, Rampur Bushehar. In the meanwhile the third application for partition pertaining to revenue village Bhuttidhar was marked by the Assistant Collector 1st Grade to the Assistant Collector 2nd Grade for framing mode of partition. The plea of adverse possession was taken up before the Assistant Collector 2nd Grade who, after examining the document of private partition observed that the same has no reference to the land under partition and hence he rejected the plea of title and proceeded to frame the mode of partition on 11.10.1994. The Assistant Collector 1st Grade accepted the mode of partition on 20.8.1996 after observing that the parties never sought confirmation of the purported private partition under Section 145 of the H.P. Land Revenue Act, 1954. Shri Diwan Chand and others felt aggrieved with this order of the Assistant Collector, 1st Grade and they too filed an appeal before the Sub Divisional Collector, Rampur Bushehar. The learend Sub Divisional Collector decided all the three appeals vide a common order dated 19-3-1998 holding that no question of title is involved in the cases. He therefore, set aside the order of the Assistant Collector 151 Grade passed on 13-10-1995 relating to villages Bahli and Pamlai wherein the latter had held that a question of title was involved which the parties should get settled from a Court of competent jurisdiction. The learned Collector upheld the order dated 20-8-1996 of the Assistant Collector 1st Grade relating to laud situated in village Bhuttidhar, wherein the latter had held that no question of title was involved. Shri Diwan Chand and others assailed the order of the Collector before the learned Divisional Commissioner, Shimla on the grounds that the parties have executed a private partition in the year 1955 and have been separately and exclusively owning land which they have developed separately and hence a clear question of title was involved in this case. It was averred that they were not afforded opportunity to lead evidence in the matter otherwise they would have proved that the laud in question stood already partitioned. It was contended that Shri Surat Ram had not disputed the factum of private partition before the Assistant Collector, 1st Grade and that the Collector has also committed irregularity and illegality in passing his order. The learned Commissioner, held in both the revision petitions filed by Shri Diwan Chand and others that since the parties had executed a document of private partition and they were in long standing separate record of possession, therefore, a question of title was involved which must be settled by the civil Court. He therefore, set aside the order of the Collector and upheld the order of the Assistant Collector, 1st Grade Kumarsain dated 13-10-1995 qua the land situated in villages Bahli and Pamlai, whereby it had been held that a question of title was involved. At the same time he held that the orders of both the Assistant Collector as well as the Sub Divisional Collector holding that the question of title is not involved qua the land situated in village Bhuttidhar are required to be set aside. He has recommended the matter to this Court for passing of appropriate orders.

3. The record of the Courts below was called for and examined and the arguments advanced by the learned Counsel for the parties were heard. The written arguments submitted on behalf of Shri Surat Ram were also placed on record and were duly considered. It has been stressed on behalf of Shri Surat Ram that the claim of private partition having been effected in 1955 could not be relied upon as this alleged private partition had never been given effect to in the revenue record. At best it could be considered a family arrangement where different persons were in occupation of different portions of the land. It was stressed that the learned Collector while passing his order dated 19-3-1098 had rightly held that the alleged document of partition was just a family arrangement and the Assistant Collector 1st Grade, Kumarsain had given a finding on an issue of title being there, without any basis, in case Nos. 5/90/5/95 and 4/90/7/95. Moreover the order of the learned Commissioner taking the view that the order of the learned Collector should be set aside was based on his opinion that a question of title existed in the matter due to the alleged partition of 1995. The orders of the learned Divisional Commissioner in the matter were not reasonable.

4. The learned Counsel for Shri Diwan Chand and others stressed the issue of private partition and stated that the same could not be disturbed by way of partition proceedings being taken up before the Assistant Collector, 1st Grade. Since an issue of title had been raised, this was required to be resolved first before proceedings ahead in the matter.

5. Having perused the record and hearing the arguments advanced on behalf of both the parties I am of the opinion that the learned Commissioner has placed reliance upon the document of 1955 regarding the family arrangement. If appears that the provision of Section 135 of the Act ibid has been lost sight of in the matter since the same requires that a private partition must be given effect to in the revenue records. In this case the partition is claimed to have taken place in the year 1955 while the proceedings of partition commenced before the Assistant Collector 1st Grade in the year 1990. There was ample time for the parties to get the agreement regarding family partition, if any, implemented in the revenue record but they failed to do so and this plea cannot be raised after the partition proceedings have commenced. However, from the perusal of the copies of jamabandi of all the three relevant revenue villages it appears that the parties are in possession over separate parcels of land. As per the settled principles of partition they are required to be allotted land in their respective possessions as far as possible within the extent of their shares. Hence, while not accepting the recommendation made by the learned Commissioner to the extent of his observations that a question of title is involved in the matter, and setting aside his order in both the revision petitions to this effect, I remand the matter back to the Assistant Collector, 1st Grade Kumarsain with the directions that he may proceed with the partition in all the three revenue villages afresh after providing due opportunity to the parties to put forth their evidence regarding their possessions over specific areas and keeping in view the settled principles of partition by allowing the parties to retain the land in their respective possessions within the extent of their shares keeping also the situation regarding classification and valuation in view.

6. Announced in the open Court today on 6-11-2006. The record of the Courts below may be returned. The file may be consigned to the record room after due completion.