THE SUPREME COURT OF INDIA. JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS AN OTHERS VS JAGTAR SINGH S/O DARSHAN SINGH…

THE SUPREME COURT OF INDIA

JHABBAR SINGH (DECEASED) THROUGH LEGAL HEIRS AN OTHERS VS JAGTAR SINGH S/O DARSHAN SINGH — Respondent

Civil Appeal No. 1497 of 2008 with Civil Appeal No. 1498 of 2008

DATE OF DECISION:- 17-04-2023

HEADNOTE

Punjab Land Revenue Act, 1887 – Sections 118 and 121 – Partition – When a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be divided and the mode of partition, the rights and status of the parties stand decided and the partition is deemed to have completed – At this stage, such decision is required to be treated as the “decree” – Consequential action of preparing the instrument of partition as contemplated in Section 121 of the Land Revenue Act would be only ministerial or administrative act to be carried out to completely dispose of the partition case instituted before the Revenue Officer – Hence, once the decision on the property to be divided and on the mode of partition is taken by the Revenue Officer under Section 118, the joint status of the parties would stand severed on the date of such decision, subject to the decision in appeal if any preferred by the party – The consequential action of drawing an instrument of partition would follow thereafter – Hence, merely because the instrument of partition was not drawn, it could not be said that the partition was not completed or that the joint status of the parties was not severed

JUDGMENT

Bela M. Trivedi, J.

• Both the appeals arise out of the common judgment and order dated 17.08.2007 passed by the High Court of Punjab and Haryana at Chandigarh in RSA No.1470/1983 and RSA No. 1557/1983, whereby the High Court, while allowing the said appeals filed by the original plaintiff Jagtar Singh (predecessor of the present respondent) decreed the Civil Suits no. 420/1981 and 421/1981, filed by him, seeking decree for the possession of the suit lands, claiming right of pre-emption against the original defendants Jhabbar Singh and others (the predecessor of the present appellants). The present appellants and respondent have been substituted as the legal heirs of the original defendant Jhabbar Singh and original plaintiff Jagtar Singh respectively.

1. The factual matrix giving rise to the present appeals are as under: –

(2.1) The Civil Suit No. 420/1981 was filed by the plaintiff Jagtar Singh against the defendant Jhabbar Singh and others, with regard to the land admeasuring 12 bighas representing 240/819th share of the land admeasuring 40 bighas 19 biswas, as detailed in para 1 of the plaint. The said land was originally owned by one Jit Singh, who had sold the same for consideration of Rs. 46,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 07.04.1980.

(2.2) The Civil Suit no. 421/1981 was also filed by the plaintiff Jagtar Singh pertaining to the land admeasuring 10 bighas 18 biswas representing 218/819th share of the land admeasuring 40 bighas and 19 biswas as detailed in para 1 of the plaint, originally owned by Jit Singh and his wife Piar Kaur, who had sold the same for a consideration of Rs 42,500/- to the defendant Jhabbar Singh and others vide registered sale deed dated 24.04.1980.

(2.3) On 06.04.1981, the plaintiff Jagtar Singh filed the said two suits seeking possession of the suit lands on the ground that he was having a superior right to pre-empt those sale deeds as the co-sharer in the joint khewat, however no notice of the sale was given to the plaintiff by the said owner Jit Singh. The defendants Jhabbar Singh and others resisted the suits denying the plaintiffs claim of superior right of pre-emption.

(2.4) During the pendency of the said suits, on 25.05.1982, the defendant Jhabbar Singh filed a Partition case being no. 78/TP before the Assistant Collector, Tehsil Pihowa, in which the plaintiff Jagtar Singh had filed his objections. The Assistant Collector, Tehsil, Kurukshetra passed the following order on 25.05.1982 as under: –

“..Therefore, the objections placed by Jagtar Singh and others are rejected and the mode of partition which has already been prepared has been confirmed. Naksha Be is already annexed in the file because it has already been prepared. Therefore, the case is to be listed on 31.5.82 for objections as to Naksha Be”.

(2.5) Thereafter on 31.07.1982, the Assistant Collector, Tehsil, Pihowa passed the following order: –

“Today the file has been produced. Counsel of parties are present, Patwari and Kanoongo are also present who as per the earlier order have provided for passage and boundaries of the plots and about which the parties have been explained. There was no passage for these plots earlier. Even then passage has been given from Khasra 802/1 and 806 from Village Kamoda to Village Jyotisar which is connecting these villages. Another passage is at the East side after 4-5 acres and if these plots did not get any other passages then this is the correct place for such passage. As per Naksha Be of partition, the partition is accepted the details of which is as follows:

Name

Number of Khasras allotted

1.Jhabbar Singh, Balak Ram, Sardar Ram, Afsar Ram, Sher Singh, Santu S/o Shibbu all the six portions are equal

790/2-792/2-792/1/2-800 2-16 3-14 0-4 4-0 801 783/2 -802/1 – 806/1 4-0 0-6 3-16 3-16 Total: 22 bigha 12 biswa

2. Jagtar Singh, Pranav Singh, Palvinder Singh, Tarsem Singh S/o Darshan Singh. All four portions are equal.

788 – 789 -783/1-784 3-8 4-11 3-14 4-0 787 2-2

Total: 17 bigha 15 biswa

In addition to above for No.1

802/1-806-790/1-792/1

0-4 0-4 0-2 x

For No.2

792/1

0-2

Total: 0-12 Biswa

Now the case is to be listed on 30/8/82 after expiry of time for appeal. Pronounced in Open Court.

31-7-82

Sd/-

A.C. Second Class

Pihova”

(2.6) It further emerges that thereafter the defendant Jhabbar Singh had filed an application before the Trial Court seeking an amendment in the written statement in the suits stating inter alia that during the pendency of the suits, the joint khata including the suit lands had been partitioned by the AC-I Grade, Pihowa vide order dated 31.07.1982. Consequent upon such amendment, an additional issue came to be framed by the trial court vide the order dated 28.09.1982 in the suits, as to “whether the suit land has been partitioned?”

(2.7) On 12.10.1982, the Collector Guhla dismissed the appeal filed by the said Jagtar Singh and Others against the order dated 31.07.1982 passed by the Assistant Collector, Pihowa. On 19.10.1982, the said Jagtar Singh had filed Revision application before the Commissioner, in which the Commissioner had initially granted stay against the operation of the order dated 31.07.1982 upto 16.11.1982, however the said stay was not extended thereafter.

(2.8) Both the suits being 420/1981 and 421/1981 came to be dismissed by the Civil Judge, SJIIC Kaithal vide the judgments and decrees dated 01.12.1982, holding inter alia that khewat in dispute had remained no more joint as per the order dated 31.07.1982 and that the plaintiff had lost the joint status as the co-sharer on the date of passing the judgment and decree. The First Appeals preferred by the plaintiff Jagtar Singh also came to be dismissed by the Additional District Judge, Kurukshetra, vide the judgment and decrees dated 08.04.1983.

(2.9) However, the RSA no. 1470/83 and RSA no. 1557/83 preferred by the plaintiff Jagtar Singh against the said judgments and decrees of the First Appellate Court, came to be allowed by the High Court vide the impugned common judgment and order dated 17.08.2007.

3. The learned senior counsel Mr. Narender Hooda appearing for the appellants (original defendants) placing reliance on the provisions contained in Section 121 of the Punjab Land Revenue Act, 1887 (hereinafter referred to as the Revenue Act) submitted that after the partition was completed, the function of the Revenue Officer to prepare an instrument of partition and fixing the date for taking effect of the partition was only an executory or ministerial act. As such “Naksha Be” having already been prepared when the Assistant Collector had passed the order, and the objections of the respondent (original plaintiff Jagtar Singh) with regard to the mode of partition having already been rejected vide his order dated 25.05.1982, the said “Naksha Be” had stood confirmed, and thereafter the said “Naksha Be” was to be treated as “Naksha Zeem” for the final allocation of lands between the parties. According to him, thereafter the Assistant Collector had passed the order on 31.07.1982 accepting the partition, and the appeal against the said order preferred by Jagtar Singh before the Collector was dismissed on 12.10.1982, and therefore the right of pre-emption even if had existed in favour of the plaintiff Jagtar Singh on the date of filing of the suits, did not survive on the date of passing of the decrees in the civil suits on 01.12.1982. He further submitted that the right of pre-emption under the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Pre-emption Act) is a weak kind of right, and as per the settled legal position, the right of pre-emption should not only exist on the date of filing of the suits, but has to subsist on the date of passing of decree also. Mr. Hooda has placed reliance on the decisions of the Punjab and Haryana High Court in Har Devi vs. Ram Jas and Others (1974 PLJ 345); Lala Ram vs. The Financial Commissioner, Haryana (1991 SCC Online P&H 1105); Pritam Singh Vs. Jaskaur Singh (1992 SCC Online P&H 676) and Munshi vs. The Financial Commissioner, Haryana, Chandigarh (1993 SCC Online P&H 1086) to buttress his submissions.
4. Per contra, the learned senior counsel, Mr. Rajiv Bhalla appearing for the respondent repelling the submissions made on behalf of the appellants submitted that as per Section 121 of the Revenue Act, the partition comes into effect on a date to be notified by the Assistant Collector in the instrument of partition and not on the date of preparation of “Naksha Be” or “Naksha Zeem”. According to him, the said date is significant for the purpose of determining the liability of the parties to pay the revenue and also for recording the ownership rights in the record of rights. Mr. Bhalla relied upon the various proformas contained in the Haryana Land Records Manual, 2013 to submit that the partition and severance of status of the cosharer could be notified by the Assistant Collector only in accordance with Section 121 of the Revenue Act and Clauses 18.12 to 18.14 of the Manual. Distinguishing the judgments relied upon by the learned senior counsel Mr. Hooda for the appellants, learned senior counsel, Mr. Bhalla submitted that in the said cases, the status of co-sharer had come to an end on the date set out in the instrument of partition, whereas in the instant case neither the instrument of partition was prepared, nor the date was determined by the Assistant Collector as per Section 121 of the Revenue Act, and therefore it could not be said that the proceedings of partition had stood concluded before the date of decrees passed in the suits.

Placing reliance upon the judgment of this Court in case of Bishan Singh & Others vs. Khazan Singh & Another, AIR 1958 SC 838 he submitted that the right of pre-emption is a right of substitution and not a right of re-purchase and therefore the plaintiff was not required to challenge in the suits, the sale deeds executed in favour of the appellants-defendants.

5. For the better appreciation of the rival contentions raised by the learned counsel for the parties, it would be beneficial to refer to some of the provisions contained in the Pre-emption Act and the Revenue Act. Section 4 of the Pre-emption Act pertains to the right of pre-emption which reads as under:

“4. Right of pre-emption application of – The right of pre-emption shall mean the right of a person to acquire agricultural land or village immoveable property or urban immoveable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of -sales or of foreclosures of the right to redeem such property.

Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale.”

6. Section 15 deals with vesting of right of pre-emption in favour of certain categories of persons. The relevant part thereof is reproduced as under: –

“15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property –

(1) The right of pre-emption in respect of agricultural land and village immovable property shall vest-(a)…….

(b) Where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly, –

First, in the sons or daughters or sons’ sons or daughters’ sons of the vendor or vendors;

Secondly, in the brothers or brother’s sons of the vendor or vendors;

Thirdly, in the fathers brother or fathers brothers sons of the vendor or vendors;

Fourthly, in the other co-shares;

Fifthly, in the tenants who hold under tenancy of the vendor or vendor the land or property sold or a part thereof;

(c) “

7. The procedure for giving notice to the pre-emptor has been laid down in Section 19 and the procedure for giving notice by the preemptor to the vendor has been laid down in Section 20. Section 21 of the Pre-emption Act states that any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right.
8. So far as the provisions contained in the Punjab Land Revenue Act, are concerned, Chapter IX thereof pertains to the “Partition”. As per Section 111 thereof, the application for partition could be made by any joint owner of land or any joint tenant of a tenancy in which a right of occupancy subsists, to the Revenue Officer in the circumstances mentioned therein. The procedure to be followed by the Revenue Officer on receiving the application under Section 111 is laid down in Sections 113 to 120.
9. Section 118 pertaining to the disposal of other questions and to the Appeal reads as under: –

“118. Disposal of other question: – (1) When there is a question as to the property to be divided, or the mode of making a partition, the Revenue-officer shall, after, such injury as he deems necessary, record an order stating his decision on the question and his reasons for the decision.

(2) An appeal may be preferred from an order under sub-section (1) within fifteen days from the date thereof, and, when such an appeal is preferred and the institution thereof has been certified to the revenue-officer by the [authority to whom the appeal has been preferred] the Revenue-officer shall stay proceeding pending the disposal of the appeal.

(3)

(4) “

10. Section 121 which pertains to the instrument of partition, being relevant for our purpose is reproduced as under:

“121. Instrument of partition: – When a partition is completed, the Revenue-officer shall cause an instrument of partition to be prepared, and the date on which the partition is to take effect to be recorded therein.”

11. Section 123 pertains to the affirmation of partition made without the intervention of the Revenue Officer which reads as under:

“123. Affirmation of partition privately affected: –

(1) In any case in which a partition has been made without the intervention of a Revenue-officer, and party thereto may apply to a Revenue-officer for an order affirming the partition.

(2) On receiving the application, the Revenue-officer shall inquire into the case, and, if he finds that the partition has in fact been made, he may make an order affirming it and proceed under section 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter.”

12. At the outset, it may be noted that the plaintiff Jagtar Singh, the predecessor of the present respondent, had filed the suits claiming himself to be the co-sharer in the joint khewat along with the vendor Jit Singh, and had sought relief against the defendant Jhabbar Singh and others with regard to the possession of the suit lands, on the ground that he as a co-sharer had a superior right to pre-empt the sales, and that he was not put to any notice of sale of the suit lands on or before the date of such sales. In a very loosely drafted plaint, the plaintiff had neither pleaded as to how he was the cosharer, nor had he impleaded the said Jit Singh, the owner of the suit lands, with whom he claimed to be the co-sharer, and who had sold the suit lands to the defendants Jhabbar Singh and Others. It is needless to say that in a suit for pre-emption, the vendor i.e., the owner of the suit land who had allegedly not given any notice of sale to the plaintiff as required to be given under Section 19 of the Pre emption Act and against whom the right to pre-empt the sale is claimed would be a proper party if not a necessary party, for a complete and final adjudication on the issues involved in the suit.
13. As held by this Court in U.P. Awas Evam Vikas Parishad vs. Gyan Devi, AIR 1995 SC 724 necessary party is one without whom no order can be made effectively; and a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. When a right to pre-empt the sale was claimed by the plaintiff Jagtar Singh as a co-sharer in the lands along with the owner Jit Singh, alleging that the mandatory provisions contained in Section 19 i.e., for giving notice to the pre-emptor, was not complied with by the owner or seller Jit Singh, his presence as the party defendant was desirable along with the other defendants Jhabbar Singh and Others, to effectively and finally decide the disputes between the parties. Though, Order I, Rule 9 states that no suit shall be defeated by reasons of the misjoinder or non-joinder of parties, care must be taken by the court to ensure that all the parties, be it the plaintiff or the defendant, whose presence is necessary for complete and final adjudication on the issues involved in the suit, are before the court.

That is the reason why the courts are empowered to strike out or add parties, at any stage of the proceedings as per Order I, Rule 10, C.P.C.

14. Further, having regard to the absolutely sketchy and loosely drafted plaint in the instant case, the Court is tempted to regurgitate the basic and cardinal rule of pleadings contained in Order VI, Rule2(1) of the Code, according to which every pleading (i.e., plaint or written statement) has to contain a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be. Of course, the pleading need not contain the evidence by which such material facts are to be proved, nonetheless the facts necessary to formulate a complete cause of action i.e., the material facts must be stated. Omission of a single material fact would lead to an incomplete cause of action and in that case, the statement of claim would become bad in the eye of law.
15. Now, so far as the right of pre-emption is concerned, it may be noted that it is a very weak right and could be defeated by all legitimate methods. This Court as back as in 1958, in case of Bishan Singh and Others vs. Khazan Singh & Another (supra), had set-forth the contours of the right of pre-emption. It was opined therein by the four-Judge Bench that-

” 11…The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a