- (1.) Appellant-Defendant No.1 is aggrieved of the judgment and decree of the Lower Appellate Court, whereby the suit instituted at the instance of the respondent-plaintiffs qua partition has been decreed, though vis-a-vis relief of declaration for setting-aside the revenue entries and Rapat Roznamcha No.313 dated 26.3.1984 has been dismissed being barred by law of limitation.
(2.) Mr.Puneet Bali, learned Senior Counsel assisted by Mr.Ranjit Saini, representing appellant-defendant No.1, in support of the grounds of appeal, has raised the following manifold arguments:- 1) Khewat No.178 consists of 103 kanals 7 marlas, whereas the partition has been sought of only 4 kanals 14 marlas of land. In fact, Basanti Devi, vide sale deed dated 7.5.1968, had sold land measuring 4 kanals 14 marlas bearing Khewat No.76, Khatoni No.93, 94 and 95, Khasra No.184//7/2 (3-12), 8/1(1-2) out of total land measuring 127 kanals 7 marlas, as per jamabandi for the year 1962-63, i.e., 1/6th share out of 21 kanals 4 marlas, i.e., 94/424 share which comes to 4 kanals 14 marlas and thereafter to Banwari Lal, father of appellant-defendant No.1 and had put him into specific possession of Khasra No.184//7/2 (3-12), 8/1(1-2); 2) The plaintiffs are none else but the grand sons of Basanti Devi, who had inherited the remaining property of their grand mother. Father of appellant-defendant No.1 remained in possession of the aforementioned property till his death and thereafter appellant-defendant No.1 came into possession of the same pursuant to the decree dated 20.10.1987 passed in civil suit titled as "Mohan Lal Versus Sat Rup; 3) Neither Basanti Devi nor L.Rs challenged the entries, much less possession of the defendant during his life time. The suit had been filed in the month of July, 2001 asserting therein that the entries were illegal and wrong on the premise that Rapat Roznamcha No.313 dated 26.3.1982 was illegal, null and void as the aforementioned entry was got done by Banwari Lal in connivance with the revenue officials by recording him as a co-sharer. In fact, the aforementioned entries were without notice and consent of the other co-sharers; 4) The entries in the jamabandies for the years 1983-84, 1988-89, 1993-94 and 1998-99 are based on wrong entries; 5) The trial Court, on the basis of the oral and documentary evidence, dismissed the suit, but the Lower Appellate Court vis-a-vis the relief qua revenue record and Rapat Roznamcha dismissed the suit, but granted partition. In fact, the suit was hit by partial partition; 6) During the pendency of the matter, the plaintiffs had sold some piece of land vide sale deed dated 14.11.2006 to plaintiff No.5, who is none else but an Advocate. It is plaintiff No.5 who had filed the appeal before the Lower Appellate Court; 7) The entire khewat is consisting of 103 kanals 7 malas and since the land agreed to be sold is Banjar Jadid, therefore, cannot be said to be non-agricultural and, therefore, the Civil Court as per the provisions of sub-section (2) of Section 158 of the Punjab Land Revenue Act, 1887 (for short "1887 Act") did not have the jurisdiction and the suit was hit by law of limitation; 8) The Lower Appellate Court has relied upon the judgment rendered by the Single Bench of this Court in Khushal Singh and others Versus Gurdip Singh and others, 1987 PunLJ 369, which has been held to be no longer good law by the Division Bench of this Court in Fauja Singh Versus Pritam Singh, 1993 2 RRR 640; 9) The question, which arises for consideration, is whether as per the averments of the plaintiffs, the land which is Banjar Jadid would be out of the realm of provisions of Section 111 of 1987 Act seeking partition for agricultural land or not or whether the expression used in Section 158 of 1987 Act regarding the estate would include the entire chunk of land situated in the village including the joint khata. In support of his contention, he has drawn the attention of this Court to the findings rendered by the Division Bench of this Court in Fauja Singh's case to contend that the word "land" has been defined in Section 4 of the Punjab Tenancy Act, 1887, whereas the "estate" has been defined in Section 3. The language in clause (xviii) of sub-section (2) of Section 158 of 1887 Act debars the jurisdiction of the Civil Court, much less any claim for partition of an estate, holding or tenancy and not with regard to the land and, therefore, the Civil Court did not have the jurisdiction. In support of his contention, he has relied upon para 10 of the aforementioned judgment; 10) As regards the partial partition, Mr.Bali has relied upon the judgment rendered by the Hon'ble Supreme Court in Kenchegowda (since deceased) by legal representatives Versus Siddegowda alias Motegowda, 1994 4 SCC 294 and Nihalu and another Versus Chandar and others, 1959 AIR(P&H) 115 to contend that one of the co-owners in a suit for partition shall include whole of the common property even though interests of the purchaser are confined to some specific part thereof, in essence the person seeking the partition should bring before the Court all persons having right in the property, for then alone can the rights of the co-owners and of purchasers from co-owners be properly and effectually adjudicated upon; 11) With regard to jurisdiction of the Civil Court, he has relied upon the judgment rendered in Kidra and others Versus Mange and others, 2001 2 PunLJ 213. He submits that the suit was, ex-facie, barred by law of limitation qua seeking entry in the revenue record and relied upon the provisions of Article 58 of the Indian Limitation Act and in this regard, relied upon the judgment rendered in Saudagar Singh Versus Harnam Kaur (deceased) now Rep.by L.Rs & Ors, 1987 PunLJ 248; 12) He submits that even the suit under Section 45 of 1887 Act was not maintainable as the pre-requisite for maintaining the suit, a person must be in possession of the land. However, it is the pleaded case of the respondentplaintiffs that they were not in possession of the land and the entries regarding khasra girdawri, jamabandi and Rapat Roznamcha have been challenged. The plaintiffs cannot even take the benefit of the ratio decidendi culled out by the Division Bench of this Court in Ibrahim alias Dharam Vir Versus Smt.Sharifan alias Shanti, 1979 PunLJ 469 on the premise that they were in the knowledge of the factum regarding the possession and, therefore, the limitation cannot be said to have been arrested, but continued to run and, thus, urges this Court for setting-aside the judgment and decree under challenge rendered by the Lower appellate Court; 13) The sale deed in favour of plaintiff No.5 is in respect of some other khasra number, though of a different share. It is strange that if the share is different, i.e., 77/94, how can plaintiff sell the same very khasra number. 14) Qua declining of the relief holding the suit being barred by law of limitation, there is no appeal at the instance of the respondent-plaintiffs. Even the partition granted is not as per the contents of the sale deed and, thus, urges this Court for formulating the following substantial questions of law for determination by this Court:- a) When suit land is part of one khewat No.178 consisting of 103 kanals 7 marlas, whether findings of Additional District Judge to the effect that suit land is not an agricultural land are sustainable in law especially when suit land bears khasra numbers and revenue record is being maintained in respect of that b) Whether Civil Court has jurisdiction to partition the agricultural land c) Whether the partition partition is permissible Per contra, Mr.Ravish Bansal, learned counsel appearing on behalf of respondent No.1 submits that the Division Bench in Fauja Singh's case , has reiterated the ratio decidendi culled out in Sucha Singh Versus Balbir Singh,1964 PLJ 160. He submits that since the land in dispute is Banjar Jadid, as per the ratio decidendi culled out in Ajmer Singh Versus State of Haryana,1990 1 RRR 109, the same would be falling within the purview of definition of "land" under the Act and cannot be said to be for agricultural purposes or purposes subservient to agriculture. On similar line is the judgment of the Division Bench of this Court in Nemi Chand Jain Versus Financial Commissioner, Punjab and another, 1964 AIR(P&H) 373.
(3.) He further submits that since respondent-plaintiff No.5 has purchased the share from the plaintiffs, his status is of a co-sharer in the joint khewat. In fact, once the land agreed to be sold is Banjar Jadid and is not an agricultural land, it is only the Civil Court which has jurisdiction to entertain and try the suit, for, had the petition before the Revenue Court by invoking the provisions of Section 111 of the Act including the entire land, been filed, the objection under Section 158 of 1887 Act would have immediately been taken, in essence, since the land is not agricultural, therefore, the Civil Court would have the jurisdiction and as well as for the remaining land, it is only the Revenue Court where the party can seek the partition and, therefore, the suit cannot be said to be hit by doctrine akin to "partial partition".;