Chhote Khan Deceased Represented by His Son, Harmat, and Others v. Mal Khan and Others.

Ghulam Hasan J. restricting their right to partition was binding after the

expiry of the term of the Settlement and contended that it could not operate ' as a bar to 1 tlfeir claim to partition. The Assistant Collector trying the suit as a Civil Court under section 117 of the Punjab ' Land Revenue Act (Act XVII of 1887) decreed the claim. He held. that the contesting 'defendants were entitled only to get produce of 140 Bighas· and 19 Biswas of land in their possession without payment of land tevenue arid had no interest in the-.remaining land. This decree was reversed· on appeal, the High Court holding that the defendants are entitled to 4/5th share as proprietors, that the original agreement repeated in s)lbsequent S.ettlements was binding on the parties so long • as the Settlements were in for.ce, that it ceased to have any effect after the expiry of the Settlements and that the renewal of its terms in the Settlement of 1938-39 . was not binding as they were not agreed to by the contest-ing defendants. The learned Judges held that the judgment (D. 4) .dated June 15, 1893 of .the Chief Court of Punjab inter-parties, which held that ·the prohibition of partition eontained in the . W ajib-ul-arz ·did not sillvive the expiry of the period of the Settlement, was binding upon them. They took the view that .. the con-testing defendants being proprietors, the right. of parti-tion was inherent in their right of .. ownership. . As a result of these findings the suit . was dismissea.

.

We have heard Dr. Tek Cband, learned counsel for the appellants, in support of the appeal. at length . but 'we are of opinion that there is no force in the appeal.

The parties are Meos and the land in dispute is situate In village Manota in Tehsil· Ferozepore, Jhirka in Gurgaon District. According . to . the Gazetter · of Gurgaon Dis-trict (1910) the Meos owned nearly° the .whole of the Ferozepore Tehsil and varioqs~other villages in Gurgaon.~ They are divided into .several sub-tribes, . and.these sub-tribes possess .a strong ·feeling of.•uliity ·and ·the S.C.R. SUPREME COURT REPOR'iffi: • • power· of. corporate action. ·It was· ·'stated :·thaf "in ·the·, 1954" mutiny· the· members of :·each· sub-division generally Chhote Khan acted together ; - and district· officers are advised to'·· v. keep themselves info:rmed -0£ the names and characters Mal Khari and Othm; of the men, :who from time to time possess (;onsiderable • J. influence over their fellow-tribesmen." (P. 60). · Ghulam Haian

The documentary evidence regarding the title to the 'r · property in dispute ranges over a period of four Settle-

ments, each Settlement being for a period of thirty years. The first Settlement was made in 1839-42, the second in: 1872-1879,. the third in 1903-08 and the last in 1938-39 which is the current ,Settlement. The village was assessed · to annual · -revenue of Rs. 323 for the period of,_ 30 years from 1246 to 1275 Fasli (correspond-ing to 1839-1862 · A.D.) which . was made payable by ,.J. Dalmir Lamberdar who is described as sole owner. The

Settlement-papers were, however, lost during ·the mutiny -and after taking fresh measurements the settle-ment papers were completed. Alif Khan, Dalmir and Dilmor signed what . is called an agreement binding them by all conditions, provisions and declarations made at the time of the. Settlement (P. 12) •

It is common ground. that the property was originally granted in 1822 A. D. to Dalmir by Nawab Ahmad Bakhsh Khan Rais ·of Ferozepore Jhirka. The grant is not in writing and there is no contemporaneous record which could-· throw any light on its terms. Dalmir claimed to be the sole grantee with full proprietary '

rights. A number of documents are attached to the Settlement record of 1863 .. They are· important as showing how the property was dealt with by the Settle-ment authorities. from time to time and the state of the revenue n;cords. The earliest document on record appe-ars to be an agreement dated. September 28, 1861, which is incorporated _in paragraph 18 of . the Wajib-ul-arz of village Manota. It says , -that the tenure of, -the village is zamindari. . Dalmir is entitled to profit and liable . foi:

loss in respect of the entire village .. The other biswadars -.

are owners .oLthe produce, of the; land cultivated by_ them but they pay no revenue. This, it is .. stated.,· is . ~ i'- the benefit. th~y ,ef!joy (P. 35 ; _. ,0. JI) .. This docun;ient

is signed in token of verification by Dalmir Lamberdar, 1954 Dilmor, Alif · Khan Biswadar and .Phusa Biswadar, who Chhole Ehan are described as proprietors. Phusa, we are .told, is the

v. alias of Chhinga. There is a report of · Mr. John Mal Khan and Lawrence (later Lord Lawrence), Settlement Officer

Others.

referred to in the Gazetteer, which says that the arrange-Chu/am Hasan J. ment then in vogue was that few owners shared the ~ profit and loss of the land revenue and the others were exempted from .responsibility. Manota was one of the few villages which . continued to follow the system (P. 179).

Paragraph 2 of the Wajib-ul-arz which relates to the mode of partition, after stating the area of the village as 837 Bighas and 9 Biswas, says "When we, the cosharers want to partition it, we ourselves will do so of our accord in accordance with our shares shown in the Khewat papers or through the village i.... Patwari in the presence of Panchayat of the brother-hood. The new abadi (cultivation of new land) will be . made with the consent of all the biswadars. One biswadar is not competent to make a new abadi". (D.10).

P. 4 is a statement showing apportionment of Jama, (i.e.; Khewat money) in the village. After stating that r the Settlement of the village was made. in the name of Dalmir, sole owner, and. that he alone was entitled to profit and· liable for loss; it goes on to say that Alif Khan son of Amir and Phusa son of Chhinga and Dilmor. having cultivated a specified area of land be-came owners of the produce · of the land without payment of rent · and also became entitled to profit and liable for loss.

Paragraph 10 of the Wajib-ul-arz contains an agree-ment about. trees. It shows that the trees standing in the house or field of the owner belong to him, and he is FOmpetent to plant and cut them. . So far as the occupaocy ·tenants are concerned, the trees standing in their hquses also belong . to them as they cultivate land but Dalmfr alone had the 'right to cut or sell them. '.l;'hese ·are ·an the material documents ·pertaining to the Settleinerit record of 1863. · _.j We now come to the Settlement record of 1877.

P. 17 is an important document. Paragraph 1 which 1954 deals with the history of the village is reproduced Chhot1 Kha11 below:- v. Mal Khan and "Fifty-two years ago in Sambat 1880, Dalrnir, Caste Others. Meo, Got Sogan, along with Dilmor and Chhinga, his Qhulam Hasan]. real brothers, took possession of the area of this vill-age, with the permission of Nawab Ahmed Bakhsh Khan Sahib, Rais of Ferozepore, who granted him a Biswadari estate without payment of any Nazrana in lieu of the services rendered by him and made this desolate tract abad. ·He along with his brothers jointly remained in possession thereof and enjoyed profit and bQre loss. After him Amir Khan became abad in the village and along with us, proprietors, remained in possession. Accordingly, we the proprietors got his name entered as a Biswadar at the time of the Revised Settlement. After him Sharif Khan, son of Ghariba, who was also a collateral, came to this village in Sambat 1916 and_ remained in possession along with us pro-prietors. Accordingly we got his name also recorded along with ours im the 14th September, 1863. We have up to this day been joint owners. This village has never been partitioned. Shares are given in the Khewat papers."

This document shows that although the name of Dalmir is mentioned as being the sole grantee by virtue of the services rendered by him to the Nawab, his two brothers also were irr joint possession with him. Not only this but Amir Khan and Sharif Khan, who are both collaterals, also had joint possession of the village.

They are all described as proprietors. and their names are recorded as joint owners. The authenticity of this document is beyond question. It cuts at the root of the theory of Dalmir being the sole owner. It is true that Dalmir was mentioned as the sole owner in D. 4 but the grant was treated by Dalmir himself · as . being the joint property of his two brothers and the tWo colla-terals whether or not it was originally intended for the benefit of the family as understood in its widest sense.

Paragraph 5 of the Wajib-ul-arz relating to the tenure of the village apd the mode of payment of revenue . \''. ·"' '. . -~ ~ ~ : .,r . i/ 1954 says . that the village is bilijmal (joint) and that the ChhoUKhaTi sons of Daltrtir · shaU: continue· to· ·pay the Government

v. revenue in respect of their own shares·· as well as· · 0-e Mal Khan .anil. shares of the sons of his two brothers and the shares Of

Others.

the collaterals. The '.'reason given is. that no money' is Ghulam Hastin J. taken froin the said co-sharers· 'On account .of relation-

ship. (P.: 15). This statement is consistent . only with: joint ·ownership. · \ .. Paragraph· 7 of the Wajib-ul-arz also describes. the tenures as Zamindari bilijmal and repeats . the · statement. that : the other c.osharers . of Dalmir, do not pay ·ariy. rent or Jama in respect of tjie land c~ltivated by them. on accoun( of their relationship. No single sharer . has the right. to reclaim the Banjar area .without the . ron-" sent of all the proprie~ors. (P. 19). This Wajib-ul arz is verified by the proprietors, .tenants,· is llhandadars (a. village servant to whom .cultivation allotted .rent. free), Kamins (menials) and the inhabitants of the village. It is admittediy signed by ·the ancestors of the" parties (P. 22). · · . , ... The Khewat and ,the Khatauni (P, 31) prepared dur-, ing the Settlement both .record the five branches ·of the family as 'being in possession of a I/5th share each.• .k similar entry is to be found in the Khatauni (D. 18).

It appears that dming the currency of · this Settle-ment two suits for .partition·· were filed ·in the · Revenue,.· Court but the partition was not allowed. (P. 5).

Coming ·to the Settlemenr of 1903-08 we· 'find ,a State-ment In clause 3«~£ the Wajib-ul-atz (n; 13) that the, descenda;,ts .· of Dalmir · alone 'could get the ~.and parti~ : tioned in five equal 'shares" but the descendants of the other four coshares, who were cultivating • lai;id ;Y,,ith-out payment' ' of revenue, owing . to non-rendition" of account iri respec,t of profit and' leis~ .o( thefr .'respective ' shares, could ilOt have ·the 'land' partitioned. . · · ·• · I,astly we come 'to th~ Jamabaridi ' of 1937-38' (P. I). This shows· · tH~t . all the five branches were entered. as . bein'g in posses~joh Of' eq\Ja(shaI~S. . . - • Mehrab, · grandsll!). of Dalinir and one of the plaintiffs, who gave eviden~e as P.W. 5 admitted tha:t defendant$ Nos. 1 to 16 were s4own as proprietors in th<;. Jam,aba,nri, , 1954 but h:e Ii.ever raised · 'a'ny cibjettion t~)t: He.. al~~- , Chhote Kfian :admitted i:hat Mehar Singh, grandson of ·Sharif ~ha~, 1 v;- Mal Khan and sold his half share to Chhote · Khan and Bhola, his co-Others. plaintiffs and that they did not challenge the saine. Ghulam Hasan J.

We ~ay .now ~efer to the civil litigation which start- ·ed in 1891. It arose upon the rejection of the applica- · tions for partition made by Alif Khan and Sharif Khan ·on September 24, 1890, by the Assistant Collector.

Alif Khan filed a suit against the. descendants of the three brothers and the descendants of Sharif Khan. In ;the plaint. (D. 1) he claimed a. declaration of 1/5th :Share of the entire village. The sons of Dalmir denied'

the daim. In their written statement (B. 2) they alleged that · in previous proceedings they had denied the plaintiffs' right to partition and that the defend- :ants had been in adverse possession of the land and .that the plaintiffs and others had been cultivating land as B,handadars (village servants). The Subordinate Judge decreed the claim (D. 3). This decree was upheld by the Divisional Judge, but the judgment is . not on record. In second appeal the Chief Court amended the decree by declaring that the plaintiff was entitled to 1/5th share in the village to be enjoyed subject to· the qualifications and restrictions set forth m the Xhewat and the Wajib-ul-arz which do not permit of · his obtaining partition while the present Wajib-ul-arz was in force. This decree was made upon.. the admis-sion made by the defendants in the course of the argu-ments. Paragraph. 8 of the Wajib-ul-arz ·of 1877 (D .. 12 -:.P· 16) which was the subject of conflicting interpretation by the parties was interpreted by ·the Chief Court to mean that its effect was, to prohibit general diyision a.mong the co-sharers while ·the W a jib- ·· ul-arz was still ii: force, They held that the five sons of Dalmir could separate their shares inter se but not the other co-sharers .. We are of opinion that this judg- · ment which is inter-panes -'finally set at rest the con-·• troversy between them by .declaring. that ·the parties'

were joint owners holding equiil shares. and . con,stittJtes res judicaia. 'The judg~eni Is. als~ . in conformiiy' ... with .

rthe true eff~ct ,of the - document~ry evidence· on. the.

1954 record. No doubt the name of Dalmir was entered in C/ihol1 Kho.11 , some documents as the sole owner but that entry by

v. itself is not conclusive and must be read in conjunc-Mal Khan and tion -with the other entries in the Settlement record.

Others.

Dalmir may have been the original grantee but his own Ghulom Hasan]. conduct shows that he did not regard himself as

absolute owner to the exclusion of his own brothers. Indeed ·according to the entry he even treated his collaterals on an equal footing. His description as sole owner in the circumstances carries no value. Whatever may h~ve been the position at the time of the original grant, the subsequent conduct of the parties unmistak-ably shows that all the five branches were treated as owners _ in equal shares. Dalmir as the lamberdar was made responsible for the payment of the entire land revenue. He was entitled to profit and was responsible for loss. The . others were given less land and were exempted from payment of rent or revenue on account of relationship. This arrangement appears to have been fairly general in those days as appears from the report of Mr. (later Lord) . Lawrence, Settlement Officer, re-ferred to above. The arrangement was that a few owners shared the profit and loss of the !at)d revenue assessment while the others were exempted. The Government was primarily interested m the payment of the revenue-and they apparently found it more con-venient to hold the head or the most influential mem-ber .of the family as responsible for payment of the entire revenue leaving it to him to make such arrange-meht among his co-sharers as he thought fit. In later Settlements the owners accepting responsibility . for-the payment of the land revenue did not find it profitable and . the system gradually disappeared. Lord Lawrence remarks that at the third Settlement the number of villages which still continued the system was· reduced to three' and one of these was Manota m Ferozepore Tehsil (page 179)~- This accounts for Dalmir being called the sole - owner · and being made · responsible for payment of Government revenue.

· · By section 44 of the Punjab· Land Revenue Act an entry inade in the record of rights · or in an annual 4_ record shall be presumed to be . true until .. the contrary is proved. That entries in the Jamabandies fall within 1954 the purview of the record of rights under section 31 of the Act admits of no doubt. Section 16 of the old C/rhot• Khan v. Act (XXIII of 1871) laid down that entries in the Mal Khan and record of rights made or authenticated at a regular Others. Settlement shall be presumed to ·be true. We are satis-Ghulam HaJan J. fied that the materials on the record taken as a whole justify the view which has been taken by the High Court that the contesting defendants are joint owners and not mere cultivators who are not entitled to claim partition of the property. The judgment of the Chief Court also recognized the proprietary right of the defendants but qualified it by the declaration that so long as the Settlement was in force, they were not entitled to par;tition by reason of their agreement recorded in the Settlement papers. The Settlements of 1877 and 1908-09 have ceased to operate and the entry in the current Settlement of 1938-39 having been made under the orders of the Collector has no value when the contesting defendants did not agree to its being incorporated. The previous agreement was not one for perpetuity but for a limited period only and there is no reason in law why the prohibition against partition should be now enforced against the contesting defend-ants. It has been held in a number of cases that the entry regarding agreement in . a Wajib-ul-arz holds good during the period of the Settlement in which it is made and becomes inoperative when the Settlement has come to an end: Hira and Others v. Muhamadi and Others(1); Allah Baksh and Others v. Mirza Bashir-ud-Din and Others (2) and Lieut. Chaudhri Chattar Singh v.

Mt. Shugni and Another(8).

We agree with the High Court in holding that parti-tion is a right incident to the ownership of property and once the defendants are held as co-owners, their right to partition cannot be resisted.

It was contended by Dr. Tek Chand that the appel-lants had acquired title by adverse possession over the defendants' share for more than 50 years. This plea was. raised in the plaint but evidently it was not pressed

(1) 16 P.R. 1915 (p, 89). (3) A.I.R. 1941,Lah .. 239.

-·- (2) 1932 L.T.R. 56.

. .., ~'

70 '. [195$]:.' 1954 for .no issue., was .frarrie\I, . ; no~. any Jipding , _r~corqeq. by Chhote Khan the trial <;:ourt, ,This poil)t ;is .,not tal<:t:n .even ,in: t.he ,.

v. grounds 9£, appeal toi~h\s C()ur\., .The plea hj\S .. no;s1Jh· Mal Khan-and stance and '\Vas right!Y by 0the, High ... Cciurt on

Qthtrs.· · reject~d .:

the ground . that, poss.ession. ,was • under,. an, arrangc;ment ... Ghul~m H6san J. between the co-sharers and. no . question •of.

adyer~e-possession could ,ari~e µndq. the circum~tanc_es. · We· hold that there is no force .. in this appeal• and .. .. Appeal dismissed.".,,. '

.... "h•·· . . ... : 1954 ~. ~!

SHRI.AUDI-i BEHAR! SINGH:

April 03. .

v . .

GAJADHAR JAIPURIA AND OTHERS:' "

[Mmm · CHAN'D M~HAJAN C.J., Bip.N. KuMAR , •• MuKHERJEA, VIVIAN BosE, N. H .. BHAGWATJ. and·

T. L. VENKATARAMA AYYAR JJ.] . .

' . CustOf!1;-Pre-"emption-Ci'ty' of Banaras~Local Custom qf Pre-emptiOn~Suth ri"ght-lnciif.ent of · 'prap<rty and attailiin g · tO land. ' ·

Held, that a local c~stom _of pre~mption' existS in thC city· Of Banaras and the right attaches at least to all house· ··prripertie.f situated ~ithin it arid no such incident of. custom is. prove~- which would make the 1'ight , a_vailab:le only · between . person~ .. who a~e either ~atives of Banaras or .are domicile_d . therein. . . . . , ..

When a righ~ of pre-erription rests. upo_n cust9m it becom.~s .the lex loc_i or ~he .law of the place and affects all lands situated in th_at .. place irrespCctiVC of the religion of ii.ationality-· or domicile' .of the a,· owners of the lands· except ·where ·.such incidents are prov.ed tO· be part of the custom itself. ·.- ~ •. ·r • •

The right 'of ·pre'-cmption ·is an iricident of Pro.perty and~.atta-ches t0:· the land itself. . ;.~ · · ... . •J

Byjnath -.:. Kapilmon (24 W.R. 95) and,, Parsashth Nath .;,, Dhanai (32 Cal. 988) disapproved.. • ., . .'. C1VIL APi>Ei:LA.Til · Ju'iUso1CTioN ·: · Civil · Appeal No. 15of1951.'"' · " -; .. · "· "'" " Appeal from .the Judg'tµe~t. a11d .Qecree,, · dated,,thc."_. 29th Angus;, . 1944, of the High Court· of Judicature ,at . ·1 Allahabad (Mulla :ind Yorke JJ.) in .first , Appeal