SHIV RAM Vs. SHREE DES RAJ

JUDGEMENT

(1.) This second appeal is directed against the concurrent decisions of the Courts below decreeing the plaintiff's suit for possession of the land in dispute by pre-emption. Sital Dass sold the land in dispute to Shiv Ram and others. This sale was pre-empted by Des Raj claimed to be a co-sharer by virtue of sale of Kesho Devi's share in the land by means of a sale-deed Exhibit P.1. Kesho Devi admittedly was a co-sharer with Sital Dass. The Courts below have held that Des Raj is a co-sharer of Sital Dass and, therefore, has a superior right of pre-emption. The only question that requires determination in this second appeal is whether Des Raj can be treated as a co-sharer of Sital Dass. This matter has been set at rest by the Full Bench of this Court in Lachhman Singh v. Pritam Chand and others, Regular Second Appeal No. 532 of 1968, decided on the 22nd of December, 1969. In view of this decision, it must be held that Des Raj is a co-sharer of Sital Dass particularly when Kesho Devi effaced her-self from the village and substituted Des Raj in her place completely. No other view is possible.

(2.) The learned Counsel for the appellants contends that there has been a partition and Kesho Devi had taken her share of the land from Sital Dass. Both the Courts found that there was no partition. This is a finding of fact and is binding on me in second appeal.

(3.) The learned Counsel for the appellants has advanced a new contention which was not advanced either before the trial Court or the lower Appellate Court. The contention is that by reason of the statement of Sital Dass in the mutation that followed the sale-deed Exhibit P.1, he recognised the sale by Kesho Devi of her share of the land and by operation of law a division resulted because what Kesho Devi sold was specific field numbers and the sale of those specific fields numbers was accepted by her co-sharer Sital Dass. The determination of this contention depends on how the mutation order and the statement of the parties in the mutation order are construed. After carefully considering the same, I am of the view that the mutation order only amounts to this that Sital Dass recognised the validity of the sale by his co-sharer Kesho Devi. But it is difficult to spell out division of the joint khata by reason of the mutation. A partition is a conscious and no presumption will arise in favour of the partition by the aforesaid mutation proceedings unless the mind of parties was directed to the matter. This did not happen. The learned Counsel further reinforces the argument by pointing to the fact that in the revenue records the transferee from Kesho Devi has been shown in the column of cultivation and not in the column of ownership. It is maintained that this fact itself will show that the transferee never became a co-sharer with Kesho Devi. The question whether a transferee of a co-sharer becomes a co-sharer is a pure question of law. It was held by the Full Bench in Lachhman Singh's case that a transferee of a co-sharer of a specific portion of a part of the entire holdings of the transferor does not become a co-sharer in the joint Khata but in case the transferor co-sharer transfers his entire interest in the joint estate, the transferee does become the co-sharer. In the present case, the transferor Smt. Kesho Devi transferred her entire interest in the joint holdings and thus in her place the transferee was transposed. It, therefore, hardly matters whether the name of the transferee was shown only in the column of cultivation. Revenue papers are merely meant for fiscal purposes. They are not documents of title.