SOHAN LAL Vs. BAL KISHAN GHANU MAL

JUDGEMENT

(1.) This is a plaintiff's appeal against the judgment and decree of Shri Ishwar Das, Senior Subordinate Judge, Amritsar, by which the plaintiff's suit for the recovery of Rs. 12,900/- was dismissed with costs. On 27-2-1947 defendant Balkishan agreed to sell to plaintiff Sohan Lal an area of 38 kanals and 14 marlas of urban land situate in village Kala Ghanupur Urban within the municipal limits of Amritsar City at the rate of Rs. 6/- per square yard and further agreed to execute a sale deed in respect of the same in plaintiff's favour up to 4-4-1947. Later on the date for execution of the sale deed was extended to 30-4-1947. In the agreement of sale which is Exhibit P. 7 the defendant stated as follows:

(2.) Mr. Daulat Ram Manchanda, learned counsel for the appellant, has drawn our attention to the warranty of title as contained in the agreement of sale, Exhibit P. 7, a relevant portion of which has already been quoted above. There can be no doubt that in this agreement the defendant describes himself to be the exclusive owner in possession of the land in suit and further states that it is owned by him without the partnership of anybody. In the written-statement filed by him he admits that the land was a part of the shamilat area and belonged to several co-sharers including the defendant. Exhibit P. 1 is a copy of an application for partition of the land in question which had been filed by one of the co-shares on 19-11-1946, Balkishan was impleaded as a respondent in the said application and his name appears at N0. 75 in the list of respondents. The land in dispute also is shown to be a part of the land which was the subject-matter of the application for partition. Exhibit P. 2 is an application made by Labh Singh petitioner in that case wherein it was prayed that an injunction may be issued to Balkishan and Krishna Devi restraining them from constructing buildings on the spot pending decision of the application for partition and from transferring the said land to any one else. Exhibit P. 3 is the order of the Court dated 18-12-1946, in which it is stated as under:

(3.) Mr. Daya Krishna Mahajan, learned counsel for the defendant-respondent, urges that his client had become owner by adverse possession, and he could, therefore, pass a valid title to the plaintiff. No such Clare plea on this point was taken in the written-statement and no issue was ever claimed on the point. There is nothing on the record to show that the defendant had become owner of the land in dispute by adverse possession and that the warranty of title contained in Exhibit P. 7 was based on a title obtained in the above manner. If such a title had been obtained, the question of title based on the same would have been raised in the partition proceedings as envisaged by section 117 of the Punjab Land Revenue Act and the land would never have been partitioned unless the said question had been determined by a civil Court or by the revenue officer constituting himself as a civil Court. It is admitted that the partition proceedings ended without any such question of title ever having been raised and that an area of 10 kanals and 1 marla was allowed to the defendant in lieu of his share in the shamilat land.