SUCHA SINGH Vs. NAND SINGH

JUDGEMENT

(1.) This appeal under Clause X of the Letters Patent is directed against the judgment of the learned Single Judge dated November 4, 1975, whereby the second appeal of the appellants was dismissed.

(2.) Briefly, the facts are that Gurdas, respondent No. 9, one of the co-sharers in joint land, sold land measuring 32 Kanals comprising of specific khasra numbers to the appellants by registered sale deed dated May 25, 1967, for a consideration of Rs. 20,000/-. The appellants were also put in possession of the same. Partition proceedings with regard to this land along with other land which was jointly owned by the said vendor and other co-sharers were initiated by some of the co-sharers on November 2, 1966 before the Revenue Authorities under the provisions of the Land Revenue Act, (hereinafter called the Act). Notice, as required under Section 113 of the Act, was issued to all the co-sharers who had not joined in the petition for partition including Gurdas, respondent. However, in spite of service, the vendor-respondent did not put in appearance. After going through the requisite proceedings, final order of partition was passed on February 7, 1968. Thereafter, the appellants filed a suit in the Civil Court for a declaration that they were not bound by the partition proceedings as they had been resorted to without any notice to them and that the said proceedings were the result of fraud and collusion between the co-sharers. It was also averred in the plaint that they were exclusive owners of the land which had fallen to the share of the vendor in a private partition between the co-sharers. This suit was contested by the other co-sharers. In view of the pleadings of the parties, a number of issues were framed. The Trial Court negatived the plea of private partition and also held that the appellants had become the co-sharers and not the exclusive owners as a result of the purchase of the land from Gurdas, respondent. However, it was further held that the appellants were not bound by the partition proceedings as notice had been served on them. The suit as such was decreed. In appeal, however, the judgment and decree of the trial Court was reversed and it was held that no notice under Section 113 of the Act was necessary to be served on the appellants who were only the transferees. Finding was also returned that the suit was barred under Section 158 of the Act. On the basis of these findings, the suit was dismissed. The second appeal by the appellants was dismissed by the learned Single Judge though it was held that the civil suit under Section 158 of the Act, was not barred. The learned Single Judge agreed with the view of the first appellate Court that notice under Section 113 of the Act, was not necessary to be served on the transferees as at the time the partition proceedings were initiated, the sale of the land, in dispute, had not been effected by Gurdas, respondent.

(3.) The learned counsel for the appellants, has assailed the impugned judgment only on the ground that when during the pendency of the partition proceedings some land out of the joint land had been sold by Gurdas, respondent, to the appellants by a registered deed, fresh notice was essential to be served on the appellants. This contention has no force. A perusal of Section 113 makes it evidence that under sub-clause (a), notice of the petition proceedings is required to be served only on such of the co-sharers who are recorded as such in the revenue record and who have not joined in the application. In the present case, it is not disputed that at the time the partition application was filed Gurdas, respondent, the transferor of the land, in dispute, to the appellants, was recorded as a co-sharer in the revenue record and the sale in favour of the appellants had not come into existence. In such a situation, notice under the said provision was rightly served on Gurdas, respondent. If during the pendency of the partition proceedings, sale of a part of the joint land had taken place, no fresh notice on the transferees was necessary. As Section 113 of the Act has provided for the issuance of notice in partition proceedings, principles of natural justice regarding notice cannot be attracted. Service of notice on the co-sharers who hold that status at the time the partition application was filed, was sufficient compliance with the requirement of law. The appellants, as transferees, were the successors-in-interest of the transferor and were bound by the final order in the partition proceedings. After the transfer in their favour, the appellants could approach the revenue authorities and get themselves associated with the partition proceedings if they so liked.