The Court disposed of an appeal challenging a partition suit where the trial court found no scope for fraud and dismissed the suit as time-barred. Holding that the factual records were undisputed and no substantial questions of law arose, the High Court dismissed the appeal.
The appeal was dismissed as no substantial questions of law arose.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.1100 of 2014 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1100 of 2014 (O&M) Date of decision:29.04.2014
Mange Ram and another
....Appellants
Versus
Het Ram and others
....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
RAKESH KUMAR GARG, J
The appellants filed the instant suit seeking declaration to the effect that they are owners in possession of the suit land as cosharers whereas the instrument of partition dated 20.2.1996 passed by the Assistant Collector IInd Grade, Bhuna, Sub Tehsil Bhuna, District Fatehabad (showing them as owners in possession of land measuring 31 kanals 6 marlas instead of 31 Kanals 16 Marlas, the defendants No.1 to 7 to the extent of 8 Kanals instead of 7 Kanals 17 marlas and the defendants No.9 to 12 to the extent of 7 Kanals 19 Marlas instead of 7 Kanals 17 Marlas) along with resultant mutation No.5445 dated 28.5.1996 was wrong, illegal, null and void and not
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binding on the rights of the plaintiffs.
According to the plaintiffs, their share in the suit land is to the extent of 1/3rd of total land measuring 95 kanals 7 marlas as detailed in the head note of the plaint whereas defendants No.1 to 7 were owners to the extent of 1/12th share, defendants No.8 to the extent of 1/4th share and defendants No.9 to 12 to the extent of 1/12th share. According to the appellants, defendants have succeeded in obtaining order dated 20.02.1996 regarding the partition of the joint land on the basis of their thumb impressions which they obtained on mis-representation that the same were required for Warabandi. According to the plaintiffs, in the alleged petition, they have been given land measuring 31 kanals 6 marlas whereas their share was to the extent of 31 kanals 16 marlas. It is their further case that total land measuring 17 kanals have been used for Khal and Rasta and even if 0 Kanal 6 marlas i.e. 1/3rd share of the plaintiffs is deducted, they were entitled to land measuring 31 kanals 10 marlas. However, they were given only 31 kanals 6 marlas. It is their further case that defendants No.1 to 7 have been given land measuring 8 Kanals instead of their entitlement to the extent of 7 Kanals 17 Marlas whereas defendants No.9 to 12 have been given land measuring 7 kanals 19 marlas instead of their entitlement of 7 kanals 17 marlas and thus, their area has been reduced to the extent of 4 marlas illegally and unauthorizedly. Thus, the impugned instrument of partition dated 20.02.1996 as well as resultant mutation No.5445
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sanctioned on 28.5.1996 on the basis of said partition was totally illegal, null and void. The said instrument of partition has never been acted upon. The plaintiffs were still owners in possession of the land measuring 31 kanals 16marlas i.e. 1/3rd share of the total land measuring 95 kanals 7 marlas. Since the defendants refused to accept their claim, hence the necessity arose to file the instant suit.
Upon notice, defendants No.8 and 10 appeared and contested the suit by filing written statement. It was contended that partition was conducted in the presence of the witnesses and with their consent and thereafter, the instrument of partition dated 20.02.1996 was prepared. Even the plaintiffs were also present at the time of sanctioning of the Mutation No.5445 dated 28.5.1996. The entire story of the plaintiffs was false and frivolous. They were having knowledge about the partition proceedings which were conducted in their presence and with their consent. The defendants never obtained their thumb impressions by representing that the same were required for Warabandi. There was no illegality or infirmity in the impugned partition as well as mutation sanctioned on the basis thereof. The parties to the suit have been in possession of the land as per the mutation on the basis of instrument of partition, and thus, dismissal of the suit was prayed for.
On the basis of the pleadings of the parties, following issues were framed:-
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illegal, null and void being procured of fraud and misrepresentation? OPP
While dismissing the suit vide judgment and decree dated 8.12.2011, the trial Court held that there was no illegality or infirmity in the instrument of partition dated 20.02.1996. The plaintiffs have failed to prove the factum of fraud and misrepresentation and even the possession was delivered to the parties in the partition proceedings in pursuance of instrument of partition dated 20.02.1996. Moreover, the suit was held to be beyond limitation as the same was filed on 15.6.2009 whereas, the instrument of partition could have been challenged within three years. The trial Court further found that the Civil court had no jurisdiction to try the suit as there was no illegality or infirmity in the impugned order of partition.
Still not satisfied, plaintiffs filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment
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and decree dated 5.2.2014.
Still not satisfied, plaintiffs have filed the instant appeal submitting that following substantial questions of law arise in this appeal:-
Learned counsel for the appellants has vehemently argued that the civil Court has jurisdiction to set aside the instrument of partition. According to the learned counsel for the appellants, if a writ is maintainable to challenge the instrument of partition, the Civil Court had also the jurisdiction as both the remedies are same except the fact that writ jurisdiction was a more efficacious remedy. It is the further contention of the appellant that instrument of partition and subsequent sanctioned mutation were erroneous and liable to be set aside as revenue authority had no jurisdiction to reduce the land as per his share.
I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below.
There is no substance in the contention raised.
At this stage, it may be noticed that there is not an iota of
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evidence to prove that the order of partition was the result of fraud and misrepresentation on the part of defendant-respondents. In fact, appellants had appeared in those proceedings and the same were to their knowledge. Mere difference of 3-4 marlas in the land allotted to the co-sharers in partition is not sufficient to prove fraud. In partition of land measuring 95 Kanals 7 Marlas the deficiency or surplus of 3-4 marlas is ignorable. The partition of land cannot be conducted by adopting a golden weighing scale, since there was no illegality in the partition proceedings.
At this stage, it may be noticed that even if findings on the issue of jurisdiction are incorrect, there is nothing on record on the basis of which interference is warranted in the findings recorded by both the Courts below on merits of the case.
In view thereof, this Court is of the view that no substantial questions of law, as raised, arise in this appeal.
Dismissed.
April 29, 2014 savita
(RAKESH KUMAR GARG) JUDGE
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3 issues framed by the court
Whether the Civil Court had jurisdiction to set aside an instrument of partition when a writ petition is maintainable?
Whether the limitation period for challenging the partition instrument started from the date of threat of dispossession or the date of the partition?
Whether revenue officers have power to reduce the area allotted to a co-owner in a partition?
Mange Ram
Het Ram
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
