* IN THE HIGH COURT OF DELHI
Judgment reserved on : November 18, 2008
% Judgment delivered on : December 03, 2008
+ RFA 01/1995
SHRI RAJBIR & ORS. ..... Appellants
Through: Mr. Harish Malhotra, Sr. Adv.
with Mr.A.P.S.Gambhir, Adv.
VERSUS
SMT.PADMA DEVI & ORS. ..... Respondents
Through: Mr.J.K.Jain, Adv. for R-1 to R-6.
Mr.K.R.Chawla, Adv. for
Mr.Charan Singh (Respondent).
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
: PRADEEP NANDRAJOG, J.
1. The ancestry of the litigating parties may be noted.
The pedigree table is as under:-
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NARBHA
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NANAK RAM DUTT (died issueless)
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CHAJJU RAM
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Jawahar Singh Ghasi Jit Singh
(defendants 1 to 4 (defendants 5 to 8 (plaintiffs
are the sons of are the sons of Ghasi) are the wife,
Jawahar Singh) sons and
daughter of Jit
Singh)
2. Jit Singh filed a suit for partition of a plot of land
admeasuring 1200 sq.yds. assigned No.1572 in village
Magholpur Kalan stating that the village was commonly known
as Mangolpur Kalan and that their ancestors were the
proprietors of vast land in said village and were biswedars i.e.
co-sharers of the abadi land in the village, on which they had a
house and gher/ghitwar. The ancestory was stated to be as per
the afore-noted pedigree table. It was stated that during the
settlement of the abadi, effected in the village in the year
1880, the afore-noted plot number was assigned to the land in
possession of their ancestors. Alleging that the holding was
joint, partition thereof was sought. Right of Ghasi, Jawahar
Singh and Jit Singh was pleaded to be 1/3rd each.
3. On the death of Jit Singh his wife, sons and daughter
RFA No.01/95 Page 2 of 12
were substituted as the plaintiffs being his legal heirs.
4. The children of Ghasi opposed the claim alleging
that they were the exclusive owners of the land and that the
children of Chajju had separated long before they, i.e. children
of Ghasi attained majority.
5. No written statement was filed by the legal heirs of
Jawahar Singh who were impleaded as defendants No.5 to 8.
6. Needless to state, on the pleadings of the parties,
the only material issue which arose for consideration was
whether a separation had taken place amongst the children of
Chajju as alleged in the written statement.
7. Vide impugned judgment and decree dated
25.11.1994, a finding has been returned against defendants
No.1 to 4 holding that said defendants have failed to prove a
partition amongst the children of Chajju; resulting in a
preliminary decree being passed declaring the share of
plaintiffs to be 1/3rd (jointly); that of defendants No.1 to 4 being
1/3rd (jointly); and that of defendants No.5 to 8 being 1/3rd
(jointly).
8. At the trial, which commenced during the life-time
of Jit Singh, he examined himself as PW-1, and in his deposition
reiterated the facts pleaded in the plaint.
9. Relevant would it be to note that during cross-
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examination he was questioned as to what happened to the
agricultural lands owned by the family, to which he replied that
the same were acquired. No suggestion was put to the witness
that the respective family members were assessed separately
for compensation in respect of the acquired lands.
10. One Pyare was examined as PW-2, who deposed
that he was a resident of the village and that no separation
took place amongst the children of Chajju.
11. PW-3, Sagan Kumar Saini, a draftsman by
profession, proved the site-plan of the land, stating that he had
prepared the same i.e. Ex.PW-3/1.
12. Relevant would it be to note that PW-3 was not
cross-examined with respect to the site-plan. He was only
questioned with respect to his qualifications of being a
draftsman. He informed that he had a diploma in the relevant
subject.
13. PW-4, Pawan Kumar Seth, a clerk from the Record
Room (Judicial) Revenue, Tis Hazari produced the record
pertaining to ejectment proceedings initiated by the Gaon
Sabha of Village Mangolpur Kalan against Ghasi and Jawahar
Singh.
14. PW-5, Chaudhary Risal Singh, Advocate, proved
Ex.PW-5/1, being a complaint dated 28.11.1968 made to the
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Revenue Assistant by the Panchayat Secretary on behalf of
Gaon Sabha Mangolpur Kalan alleging that Ghasi and Jawahar
Singh, sons of Chajju had illegally trespassed upon the land of
the Gaon Sabha.
15. After examining PW-1 to PW-5, counsel for the
plaintiffs tendered in evidence the certified copy of the order
dated 30.3.1970, Ex.P-2, passed by the Revenue Assistant
dismissing the complaint of the Gaon Sabha (Ex.PW-5/1)
holding that the disputed land did not belong to the Gaon
Sabha, and that the record of settlement effected in 1880
revealed that the land recorded in the revenue record, vide
serial entry No.1572, was to the effect that the said land was
within the lal dora and that on the promulgation of the Delhi
Land Reforms Act 1954, vide Section 8 thereof, the land was
treated as held by the proprietors thereof i.e. the persons in
possession of the land. He also tendered Ex.P-3, being the
notice issued by the Revenue Assistant when he received the
complaint Ex.PW-5/1.
16. The contesting defendants examined Rajbir i.e. son
of Ghasi as DW-1 who reiterated that a separation had taken
place amongst the children of Chajju.
17. Relevant would it be to note that the date or the
year in which the alleged partition took place was not stated by
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him.
18. DW-2, Ram Naraian, a villager residing in the same
village also deposed about a partition being effected, but did
not state the date or the month or the year when the same
happened.
19. Two witnesses were examined, both were shown to
be DW-3. The first witness examined as DW-3, Budh Ram,
stated that the disputed land was in possession of the sons of
Ghasi and that neither Jit Singh nor Jawahar Singh were ever in
possession thereof. The second witness examined as DW-3, Jai
Kishan, a co-villager deposed that the name of their village was
Mangolpur Kalan.
20. After the trial was over and before arguments
commenced, with the consent of the contesting parties certain
documents, filed by the contesting defendants were taken on
record and were assigned exhibit marks D-1 to D-6. It may be
noted that two documents were assigned the same exhibit
mark i.e. D-5 being a certified copy of LR-5 i.e. a revenue entry
to the effect that the lands detailed therein comprised in
Khasra No.17/1/1, 17/2, 31/7, 31/14, 31/17 and 31/24 were
entered in the revenue record as in the cultivatory possession
of Ghasi and a certified copy of a khatauni evidencing the same
i.e. what was recorded in LR-5.
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21. Case projected by the contesting defendants before
the learned Trial Judge was on Ex.D-1 to D-6 (wrongly referred
to in the impugned decision as Ex.D-1 to D-7; the probable
reason being that two documents were assigned the same
exhibit number i.e. D-5). It was urged that the same show
Ghasi to be the recorded owner of the lands detailed in LR-5
from which an inference of partition was sought to be drawn.
The second contention urged was that the dispute between the
Gaon Sabha and Ghasi evidenced by Ex.P-2, P-3 and Ex.PW-5/1
revealed that only Ghasi was in possession of the disputed
land, where from an inference was sought to be drawn of a
partition being effected. A third contention was urged that the
plaintiffs were not even sure whether the disputed land was
comprised in village Magholpur Kalan or Mangolpur Kalan. As
against that, the plaintiffs urged that partition has to be proved
by cogent evidence and that there was none.
22. Learned Trial Judge has held in favour of the
appellants. The principal reasoning is that there is no evidence
to prove partition. Exhibits D-1 to D-6 were held to be
irrelevant evidence as the same did not pertain to the land in
dispute. Learned Trial Judge has held that no witness of the
plaintiffs was examined on the issue of the name of the village
and hence concluded that the identity of the land was not in
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dispute.
23. At the hearing of the appeal, the very same
contentions which were urged before the learned Trial Judge
were pressed. One additional submission was urged, being
that, Jawahar Singh had filed another suit for partition which
was directed to be clubbed with the instant suit and that the
learned Trial Judge has erred in deciding the instant suit
without deciding the suit filed by Jawahar Singh. It was urged
that a contradictory finding may result if suit filed by Jawahar
Singh is decided by holding that a partition took place.
24. Pertaining to the name of the village, suffice would
it be to state that in para 3 of the plaint, the plaintiffs clearly
pleaded that the name of the village was Magholpur Kalan and
that it was commonly known as Mangolpur Kalan. There is no
evidence on record that in Delhi there exist two villages, one
called Magholpur Kalan and the other called Mangolpur Kalan.
Thus, we concur with the findings recorded by the learned Trial
Judge that the contesting defendants were trying to confuse
the issue.
25. The contention of the contesting defendants with
reference to Ex.P-2, P-3 and PW-5/1 may be dealt with.
26. The same pertain to a claim by the Gaon Sabha that
the land in question belonged to the Gaon Sabha and that
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Ghasi and Jawahar Singh had illegally trespassed upon the
same and hence were liable to be ejected under Section 86-A
of the Delhi Land Reforms Act 1954. In said proceedings, the
defence taken was that in the settlement effected in the year
1880 the land in question was, vide serial No.1572, shown as
belonging to and in possession of the ancestors of Ghasi and
Jawahar Singh and that it was within the abadi of the village
and that with the promulgation of the Delhi Land Reforms Act
1954, vide Section 8 thereof, was treated as abadi land with
proprietary right vested in the occupants of the land. The issue
of partition was not in the forefront in said proceedings.
Needless to state, the defence succeeded by proving that the
ancestors of Ghasi and Jawahar Singh were the proprietors of
the land in question. No finding was returned that after the
original settlement which took place in the year 1880, by and
under a partition effected amongst the children of Chajju, Ghasi
and/or Jawahar Singh came into the possession of the land in
dispute.
27. Ex.D-1 to D-7 are certainly relevant, but not
conclusive of the proof of partition. The relevance of the
documents is that they show Ghasi as the bhumidar of
agricultural land comprised in Khasra No.17/1/1, 17/2, 31/7,
31/14, 31/17 and 31/24 in the revenue estate of village
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Mangolpur Kalan. It could be urged there from that the
exclusive bhumidari rights in favour of Ghasi establish a
partition. But this contention ignores the fact that to urge so, it
has to be proved that the brothers of Ghasi were likewise
recorded as exclusive bhumidars of some other lands which
were ancestral.
28. Ghasi could have independently acquired title to
certain agricultural lands in the village. It would be
impermissible to draw conclusions by assuming the existence
of a fact which has not been proved. In addition to this we may
note that PW-1, Jit Singh stated in his examination in chief that
all agricultural land belonging to the family was acquired by the
government in the year 1954. The same went uncontested in
the cross examination.
29. Law is clear that possession by one co-sharer, in the
eyes of law, is possession of all and a mere occupation of a
large portion or even of an entire joint property necessarily
does not amount to an ouster or a proof of partition. In the
decision reported as AIR 1961 Punjab 528 Sant Ram Nagina
Ram vs. Daya Ram Nagina Ram it was held as under:-
“(1) A co-owner has an interest in the whole property
and also in every parcel of it.
(2) Possession of joint property by one co-owner is in
the eye of law, possession of all, even if all but one are
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actually out of possession.
(3) A mere occupation of a larger portion, or even of an
entire joint property does not necessarily amount to
ouster as the possession of one is deemed to be on behalf
of all.
(4) The above rule admits of an exception when there is
ouster of a co-owner by another. But in order to negative
the presumption of joint possession on behalf of all, on
the ground of ouster, the possession of a co-owner must
not only be exclusive but also hostile to the knowledge of
the other as, when a co-owner openly asserts his own title
and denies that of the other.
(5) Passage of time does not extinguish the right of the
co-owner who has been out of possession of the joint
property except in the event of ouster of abandonment.
(6) Every co-owner has a right to use the joint property
in a husband like manner not inconsistent with similar
rights of other co-owners.
(7) Where a co-owner is in possession of separate
parcels under an arrangement consented to by the other
co-owners, it is not open to any body to disturb the
arrangement without the consent of others except by
filing a suit for partition.”
30. The contention that the learned Trial Judge ought to
have decided both suits i.e. the instant suit as also the suit filed
by Jawahar Singh which is now being prosecuted by his sons,
as noted above was urged in appeal and not before the learned
Trial Judge.
31. No prejudice has been caused to either party and
the question of any contradictory decisions does not arise. The
reason is obvious. Jawahar Singh who was not originally
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impleaded as a defendant in the suit filed by the plaintiffs was
subsequently impleaded as a defendant and his legal heirs
were brought on record on his death. The children of Jawahar
Singh would be bound by the impugned judgment and decree.
We may note that the necessity of the second suit arose
because Jawahar Singh was not impleaded as a defendant in
the instant suit and he rightly thought as to how would he
protect his interest. In any case, the instant decree would
operate as res judicata in the second suit.
32. The appeal is dismissed with costs in favour of the
contesting respondents.
33. Trial Court Record be returned forthwith.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
December 03, 2008
dk
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