CHHOTE KHAN Vs. MALKHAN

JUDGEMENT

(1.) This appeal is brought against the judgment and decree dated November 10, 1944, of the Lahore High Court (Sir Trevor Harrier, C.J. and Mr. Justice Mahajan, the present Chief Justice of this Court) reversing the judgment and decree of the Assistant Collector, First Grade, Gurgaon as Senior Subordinate Judge, and dismissing the plaintiffs appellants' suit.

(2.) Dalmir, Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals. Alif Khan was the son of Amir Khan. The present dispute is between the descendants of five branches of the family. The suit was brought by the descendants of Dalmir against the descendants of Dilmor, Chhinga Alif Khan and Sharif Khan. To this suit were also impleaded as defendants some of the descendants of Dalmir. The plaintiffs claimed a declaration that they along with defendants 17 to 19 are full owners in possession of 819 Bighas 19 Biswas land situate in village Manota Tehsil Ferozepore Jhirka in the Gurgaon District that defendants 1 to 16 had no right to claim partition of that land and that they were entitled only to the produce of land measuring 140 Bighas 19 Biswas possessed by them without payment of land revenue. The aforesaid defendants, it was alleged, were bound by the terms embodied in the agreement dated September 11, 1861, in the Wazib -ul- arz of that Settlement and repeated in subsequent Settlements which debarred them from any right to claim partition. Defendants 1 to 16, who are the contesting defendants, pleaded in defence that the plaintiffs along with the pro forma defendants 17 to 19 were recorded in Revenue papers as owner of 1/5th share in the land in dispute, while the contesting defendants were recorded as owners of the remaining 4/5 share and as such they were entitled to claim partition. The defendants denied that any agreement or condition in he Wazib -ul- arz restricting their right to partitions was binding after the expiry of the term of the Settlement and contended that it could not operate as a bar to their claim to partition. The Assistant Collector trying the suit as a Civil Court under Section 117 of the Punjab Land Revenue Act (Act XVII of 1887) decreed the claim. He held that the contesting defendants were entitled only to get produce of 140 Bighas and 19 Biswas of land in their possession without payment of land revenue and had no interest in the remaining land. This decree was reversed on appeal, the High Court holding that the defendants are entitled to 4/5th share as proprietors, that the original agreement repeated in subsequent settlements was binding on the parties so long as the Settlements were in force, that it cease to have any effect after the expiry of the Settlement of 1938-39 was not binding as they were not agreed to by the contesting defendants. The learned Judges held that the judgment (D,4) dated June 15, 1893 of the Chief Court of Punjab inter-parties, which held that the prohibition of partition contain in the Wazib -ul- arz did not survive the expiry of the period of the Settlement, was binding upon them. They took the view that the contesting defendants being proprietors the right of partition was inherent in their right of ownership.

(3.) We have heard Dr. Tek Chand, learned counsel for the appellants, in support of the appeal at length but we are of opinion that there is no force in the appeal.