Jagir Singh vs Hartej Singh

Dr. (Mrs.) Sarojnei Saksena, J.—The petitioners have filed this revision against lower Court''s order dated November 15, 1994, whereby respondentdecreeholders'' petition filed for final decree is allowed and Local Commissioner is appointed to suggest mode of partition of the disputed land.

Skeletal facts of the case are that these decreeholders filed a suit for partition against the petitionerjudgmentdebtors, which was allowed by Assistant Collector Ist Grade, Moga, vide his order dated November 13, 1972. The petitionerjudgmentdebtors, aggrieved by that order, filed civil suit and obtained injunction order against the decreeholders, but their suit was dismissed on February 1, 1978. They filed appeal, which was also dismissed on February 24, 1983. Mohinder Singh, Chamkaur Singh and Darshan Singh decree holders filed an application in the Court of Tehsildar, Moga (with powers of Assistant Collector Ist Grade) on the ground that these applicants earlier filed an application for partition, which was allowed on November 13, 1972 but because the respondents (petitioners herein) started civil litigation, these applicants could not get possession of their respective shares. Considering the provisions of section 122 of the Punjab Land Revenue Act, 1887, the Tehsildar held that after the expiry of three years from the date of application of partition proceedings i.e. issuance of instrument of partition of confirmation of statement, the jurisdiction is with the Civil Court to grant the relief of possession.

Thereafter these decreeholderrespondents filed suit for separate possession of 114/224 shares of land bearing Khewat No. 295 Khatoni No. 824, Khasra No. 324/3 (65), which is part of khasra No. 324 (1213) situated in village Langiana Nawan Tehsil Moga, on May 3, 1983, against these judgmentsdebtorspetitioners. The suit was contested by these judgment debtors. Shri H.R. Kaushik, Sub Judge Ist Class, Moga, decided all the issues in favour of the plaintiffs and held that the plaintiffs are entitled to separate possession of 114/224 shares of the aforementioned land. Its decree is produced at Annexure P1.

Thereafter these decreeholders filed an execution petition, in which order dated August 3, 1991, (Annexure P2) was passed, holding that the decree has been passed for possession of shares to the extent of 114/224 shares. Thus, the decreeholders have become cosharers with judgmentdebtors to the extent of 114/224 shares, but physical possession can only be obtained by the decreeholders by moving application for partition of the suit land before the proper Court. The executing Court held that symbolical possession can be delivered to the decreeholders to the extent of their share decreed. Accordingly, he ordered that warrant of possession for delivery of symbolical joint possession be issued, but on September 14, 1991, the decree holders got their execution petition dismissed as withdrawn.

On December 5, 1994, these decreeholders filed a petition for final decree, praying that suit for separate possession has been decided in their favour (judgment Annexure P1 and decree Annexure P2), hence final decree be passed, shares of the applicantdecreeholders be separated from respondents'' land and its possession be delivered to them. This petition was decided by the impugned order. The Lower Court rejected all the objections raised by the objectors and appointed a Local Commissioner to suggest the mode of partition of the disputed land.

During the pendency of this revision, decreeholdersrespondents have filed copy of the Local Commissioner''s report, wherein he has mentioned that he went to the spot on January 17, 1995, along with Halqa Patwari, who brought the record and village map with him. Parties were present on the spot. In the revenue record only Khasra No. 324 is shown. The mutation on the basis of partition has not been entered or registered in the revenue record. Hence in the revenue record Khasra No. 324/3 (65) is not yet shown. Decree holders have not taken symbolical possession of the disputed property. Therefore, Halqa Patwari expressed his inability to locate and demarcate the suit property.

Respondents'' learned counsel, relying on Narendra Kumar Dass v. Upendra Kumar Dass, AIR 1989 Orissa 196 and Smt. Geetabati and others v. Babulal and others, AIR 1990 M.P. 147, contended that since these respondents have obtained preliminary decree in their favour, their prayer for partition was allowed by the revenue Courts; their suit for separate possession was decreed by the Civil Court; their shares are also determined in the disputed land, but because corresponding entries are not made in the revenue record, as mutation is not yet ordered, therefore, Halqa Patwari was unable to help the Local Commissioner demarcating the share of the decree holders.

This is a very peculiar case of procedural ramples where the decree holders are knocking the doors of various Courts for getting their shares determined and for getting possession of their determined shares; their prayer for partition is allowed; their shares are determined; their suit for separate possession was also decreed by the trial Court; that decree has become final, but still because in the revenue papers Khasra No. 324 is not subdivided as to determine their 114/224 share, they are unable to get possession of their share out of this khasra No. Respondents'' learned counsel submitted that this has arisen because of the difficulty that the direction of the site of khasra number is not indicated in any judgment or decree, so that possession of a particular parcel of land to the extent of their share could be delivered to them. The Civil Court has already decided that these decreeholders are entitled to separate possession of 114/223 shares of Khasra No. 324/3.

In view of conspectus of these peculiar facts and circumstances of the case Tehsildar Moga, is hereby directed to demarcate aforementioned Khasra No. 324/3 (6 Kanals 6 Marlas) out of Khasra No. 324 (12 Kanals 13 Marlas), so that those decreeholders may get possession of their share of 114/224 in the land bearing Khewat No. 295 Khatoni No. 824 Khasra No. 324/2 (65). The Tehsildar is further directed to submit report of mutation to the lower court, so that thereafter the Local Commissioner may perform his assigned job and specific report be submitted before the lower Court for the said purpose. Till today the direction of the land is not suggested by any Court, hence it is hereby ordered that Northern side of the said land be partitioned as per decree of the Civil Court and separate possession of the aforementioned share of the said land be delivered to the decreeholderspetitioners. The revision is disposed of accordingly.