IQBAL SINGH Vs. SADHU SINGH

JUDGEMENT

(1.) Unsuccessful plaintiff has filed the present appeal and it has been directed against the judgment and decree dated 21.3.1984 passed by the Court of Additional District Judge, Amritsar, who affirmed the judgment and decree dated 14.4.1980 passed by the Court of Sub Judge 1st Class, Amritsar, who dismissed the suit of the plaintiff for declaration, as prayed for.

(2.) Brief facts of the case are that Iqbal Singh plaintiff filed a suit for declaration to the effect that he is the exclusive owner and in possession of the suit land measuring 15 Kanals 9 Marlas situated in village Wadali Guru, and defendants Nos. I to 9 have no right, title or interest in the said land, and that defendant No. 1 is not a co-sharer in the land in dispute and had no right to seek partition along with other land comprised in Khewat No. 94, and that the order of the Assistant Collector 1st Grade, Amritsar, dated 17.4.1969 sanctioning ex parte mode of partition, and the order dated 19.5.1970/16.12.1970 sanctioning partition at the back of the plaintiff were null and void, illegal and without jurisdiction. The plaintiff has also prayed for decree for permanent injunction praying that defendant No. 1 be restrained from dispossessing the plaintiff from the suit land. The case set up by the plaintiff was that defendants Nos. 1, 2, 3-A to 3-G were the owners of the land measuring 125 Kanals 9 Marlas comprised in Khewat No. 94 situated in village Wadali Guru and that the entire land of this Khewat does not answer to the description of the land as defined in the Punjab Land Revenue Act, and that defendants Nos. 1 to 9 by means of a sale deed 8.2.1937 sold the area in dispute i.e. 15 Kanals 9 Marlas to Babu Banta Singh, who was the father of the plaintiff, and the vendors put him in actual possession of the land. After the death of Banta Singh the present plaintiff became the sole owner of the land in dispute. The land was jointly sold by the co-sharers and the plaintiff remained in possession of the same in his own right. Defendant No. 1 in collusion with defendants Nos. 2, 3A to 3G applied for partition of Khewat No. 94 in the Court of Assistant Collector Grade-1, Amritsar in case No. 38 dated 19.3.1968. The plaintiff as not served with any notice in those proceedings. The order of the Assistant Collector is without jurisdiction. The entire Khewat was a built up area, being urban property and as such the land comprised in Khewat No. 94 does not fall within the definition of 'Land' as defined in Punjab Land Revenue Act. The Assistant Collector illegally sanctioned the mode of partition on 17.4.196(sic) and confirmed on 19.5.1970/16.12.1970. In that partition an area of 10 Kanals 6 Marlas out of the land in dispute was withdrawn from the ownership of the plaintiff and was allotted to defendant No. 1 Sadhu Singh. The land was purchased by the father of the plaintiff on the basis of the representation and with the consent of all the vendors i.e. defendants Nos. 1 to 9. The father of the plaintiff became the absolute owner of the land measuring 15 Kanals 9 Marlas and that the vendors had no right, title or interest in the said area. These defendants have been estopped by their act and conduct in denying the title of the father of the plaintiff, and after his death of the plaintiff, by stating that the Khewat was still joint. If defendants Nos. 2, 3 to 9 had sold more area than that of their share, it was done with the consent of defendant No. 1 and as such defendant No. 1 was not competent to apply for the partition proceedings. It was also pleaded by the plaintiff that his possession over the suit land was hostile, adverse, open, peaceful to the knowledge of the other co-sharers. The question of title could not be adjudicated by the Revenue Officer and as such the entire proceedings before the Assistant Collector 1st Grade were illegal and did not affect the rights of the plaintiff in the suit land. On the basis of the orders passed by the Revenue Officers in the partition proceedings, defendant No. 1 is trying to dispossess the plaintiff from the land in dispute, including the land measuring 10 Kanals 6 Marlas, which was transferred in favour of defendant No. 1. Hence the suit.

(3.) The suit was contested by defendant Nos. 1 and 4. Defendant No. 1 filed a written statement and alleged that the suit of the plaintiff is barred by limitation; that the suit is not maintainable against a dead person; that the Civil Court has no jurisdiction to entertain the suit in view of Section 158 of the Punjab Land Revenue Act. On merits, it is the stand of defendant No. 1 that he, Banta Singh and Santa Singh were the owners of the land measuring 125 Kanals 9 Marlas. It was a joint Khewat. They had also to her land. Defendant No. 1 right moved the application for the partition of the land. Santa Singh and Banta Singh sold the land to the father of the plaintiff more than their share. The plaintiff had no right to retain that part of the land. The sale in favour of the plaintiff's father was subject to adjustment of the co-sharers at the time of the partition. Defendant No. 1 had every right to seek partition of the joint land, including the land in dispute and for this reason the Civil Court has no jurisdiction to reopen the partition proceedings conducted by the Revenue Officer. The plaintiff filed an application for setting aside the ex parte order of sanctioning the partition. That application was dismissed. The land comprised in Khewat No. 94 was an agricultural land. Defendant No. 1 was allotted 10 Kanals 6 Marlas of land out of the area sold by Santa Singh and Banta Singh in favour of the father of the plaintiff in the partition proceedings. The order of the Collector is valid and legal and is binding upon the plaintiff. No representation was made by the defendants, as alleged by the plaintiff. Any representation made by Banta Singh and Santa Singh is not binding upon defendant No. 1. The plaintiff has no become the owner of the suit land by adverse possession, being a co-sharer, who has no right to claim adverse possession against the other co-sharers. Defendant No. 1 is going to take the possession of the land allotted to him in the partition proceedings according to law and he cannot be restrained from doing so.