RAM KUMAR Vs. MALLA

JUDGEMENT

(1.) Ram Kumar filed a suit to claim declaration that he was owner of 1/4th share in agricultural land measuring 86 Kanals and 2 Marlas comprised in Khewat No. 85 and 3457/7172 share in agricultural land measuring 137 Kanals and 9 Marlas comprised in Khewat No. 86 and that he was entitled to seek partition from the Revenue Court. The defendants contested the suit. By judgment and decree dated 30.1.1973, the plaintiff's suit was decreed as prayed for. Two of the defendants went up in appeal and the lower Appellate Court by judgment and decree dated 25.3.1976 maintained the decree of the trial Court with regard to Khewat No. 86 but the decree of the trial Court with regard to Khewat No. 85 was reversed and the plaintiff's suit about it was dismissed. The plaintiff has come to this Court in this second appeal with regard to his claim of 1/4th share in Khewat No. 85.

(2.) After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed. In Jamabandi Exhibit P. 1 for the years 1966-67, the plaintiff is recorded as owner of 1/4th share as is clear from column No. 4 whereunder the names of the owners/co-sharers are mentioned. Column No. 5 is with regard to the persons who are in occupation of the same. The entire land including 1/4th share of the plaintiff was shown to be recorded in possession of Malla and Kheta as vendees from Nathia co-sharer. Nathia co-sharer is recorded to be owner of 1/4th share in column No. 4, but the sale was made by this co-sharer of the land measuring 63 Kanals and 6 Marlas, which was obviously much in excess of the 1/4th share. The trial Court held that the Jamabandi Exhibit P. 1, presumption of correctness was attached, (See Section 44 of the Punjab Land Revenue Act), but the name has not been rebutted and, therefore, concluded that the plaintiff had 1/4th share in Khewat No. 85. This reasoning of the trial Court was not properly appreciated by the lower Appellate Court. The matter of presumption of correctness of Jamabandi Exhibit P. 1 and the fact that there was no rebuttal, available on the record, were not gone into. The only reasoning which is contained in para 4 of the judgment of the lower Appellate Court in this behalf, was that the names of Malla and Kheta, who are vendees from Nathia, could not come in column No. 4 because the mutation of sale had not been sanctioned till then. If Nathia had share equal to 63 Kanals and 6 Marlas, then the vendees could claim ownership to that extent in the joint land in spite of the non-sanctioning of the mutation, but since Nathia was owner of 1/4th share in the land measuring 86 Kanals and 2 Marlas comprised in Khewat No. 85, the sale beyond 1/4 share could not affect the rights of Ram Kumar plaintiff, who had 1/4th share. The suit is only to claim declaration of 1/4th share of Khewat No. 85, which can be granted if whole of the land is shown to be in possession of Malla and Kheta, vendees from one of the co-sharers, and the remedy to seek possession would be by filing a suit for partition in the Revenue Court and that is what the plaintiff has prayed for. Accordingly, the reasoning of the lower Appellate Court is patently erroneous. To find out the ownership of the agricultural land, reference to column No. 4 of the Jamabandi has to be made and since Nathia was recorded as a co-sharer to the extent of 1/4th share, Malla and Kheta vendees could come in place of Nathia in column No. 4 to the limited extent of 1/4th share and no more and even if the mutation has not been recorded so far, in Civil Court they cannot be considered to be owners of more than Nathia's share.

(3.) For the reasons recorded above, this appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored. The appellant shall have costs of this appeal from respondents 1 and 2.