By Harpreet Kaur, UILS, Chandigarh
“Editor’s Note: Partition is an important subject under land laws. This paper seeks to examine the land laws governing partition in the state of Punjab, by studying the provisions of the Punjab Land Revenue Act, 1889. It studies the concept of partition, the rights of co-owners of land, types of partition and effect of partition on joint liabilities etc. The paper also analyses the procedural aspect of partition by examining provisions relating to filing of application for partition, restrictions on partition, instrument of partition, how land is divided on partition and the officers involved in the entire process. All these aspects have been analysed through extensive case law.”
Chapter 9 of the Punjab Land Revenue Act, 1889 provides for a detailed procedure for the partition of land holdings. Sections 110-126 of the Act confer right to a co-sharer to get his joint property partition without any restriction. Chapter 9 envisages two types of partition[i]. Firstly, a partition of joint holding by the owners of the land and secondly, partition of tenancy by the Court Tenants.
Application for the partition of his share in the land or tenancy if the following conditions are fulfilled:
- The right of occupancy must subsist at the time submission of the application.
- The share is recorded under Chapter 4 as belonging to him at the time of the date of application.
- The right to share has been established by the decree which is still subsisting at the date of application.
- A written acknowledgement of the right has been executed by the all persons interested in the admission or denial thereof.
Among all the four conditions mentioned above, first condition is mandatory and this kind of occupancy can be established by fulfilling either of the other three conditions.
A mortgagee cannot apply for partition unless he proves that he is entitled to it by custom or by terms of his mortgage[ii]
In Desh Raj v. Om Prakash[iii], the Financial Commissioner of Punjab held that the code of civil procedure does not apply to the partition proceedings under Chapter 9 of the Land Revenue Act and in Bir Bhan v. Surajmuni[iv], the Court observed that the partition proceedings are commenced with presentation of application for partition of joint holding before the Astt. Collector, First Grade in Punjab & Astt. Collector, Second Grade in Haryana. Thereafter the application is processed, if the Revenue Officer does not disallow it, he will ascertain the questions, if any in dispute between the parties with regard to title in the land to be partitioned under section 116 of the Act. Such a question can only be ascertained on some preliminary enquiry. The Revenue Officer should hold in preliminary enquiry into the alleged question of title, to find whether the objection is false, frivolous, vexatious or genuining and give his findings in terms of section 116 of the Act. If his finding is in affirmative, he must comply with the provisions under section 117 of the Act and decide the question himself as a Revenue/Civil Court under section 117(2) of the Act or direct the parties to get the question of title decided from the Competent Court[v].
Moreover, in Baghar Singh & Oths. v. Baldev Singh & Oths.[vi], the Financial Commissionder, Punjab held that if the right of a person in the joint holding has been duly established by a decree of Civil Court, he is entitled to get the partition of his share in the joint holding as it is covered by Clause (b) of section.
Basic Principle Of Partition
The law of partition is that co-sharers who come forward for seeking partition of the land have to display clear title qua the land proposed to be partitioned, and in the absence of the clear title all proceedings are nullity[vii]
Rights Of Co-Owner
Rights of co-sharers and their liabilities inter se were settled by a Division Bench in Sant Ram Nagina Ram v. Daya Ram Nagina Ram[viii], and the following propositions, inter alia, were settled:
- A co-owner has an interest in the whole property and also in every parcel of it.
- Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but on are actually out of possession.
- A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
- The above rule admits of an exception when there is ouster of a co-owner by another. But in order to negative the presumption of the joint possession on behalf of all on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of other.
- Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.
- Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners.
- Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is open to anybody to disturb the arrangement without the consent of other except by filing a suit for partition.
This judgment was cited with approval by the Full Bench of this Court in Bhartu v. Ram Sarup[ix].
Also, in Bawi v. Bakhtawar Singh[x], the Court held that the petitioner was not shown as co-sharer in the latest record-of-rights at the date of application for partition in the joint khata is not her right in the land shown to be subsisting on the basis of any decree or acknowledgement or admission in the pleadings then such a person has no locus standi to file for partition.
Types Of Partition
Complete and incomplete partitions
Where a complete partition is made, there is a total severance of rights and liabilities. They have always been looked on with much disfavor in Punjab, where they cannot be carried out without the express consent of the Financial Commissioner. The officer who makes the partition is required to distribute the revenue of the divided land over the new holdings that have been created[xi]. If in the case of a complete partition a fraudulent or erroneous distribution takes place, the local Government may, at any time within twelve years after the discovery of the mistake, order a fresh distribution. For this purpose, the best estimate possible must be made of the assets of each estate at the time of its formation[xii].
Private Partitions are frequently made, but there is always a risk that some shareholders will become dissatisfied and allege that the division was only one for convenience of cultivation and was not intended to be of a permanent character. Landowners therefore, especially when the area held in common is large and the shareholders are numerous, apply to the revenue authorities to make the partition for them. Although no formal application is been lodged, the patwari is bound to record voluntary partitions for orders in mutation register as soon as they have been acted on. In passing orders on such cases, care must be taken not to treat as partitions proprietary rights of arrangements, which the parties did not intend to be permanent. If any of them objects to the record of alleged partition and attesting officer considers the objection valid, he should refuse the mutation of names and refer the party seeking it to proceedings under Section 123 of Land Revenue Act. But if he finds that the objection is vexatious or frivolous and that a fair private partition has actually been carried out, he should record the objection and his proposed order disallowing it and submit the proceedings for confirmation to the Revenue Assistant Collector of the Ist grade authorized by Deputy Commissioner to deal with these cases[xiii].
It was held that where no report was made to Patwari and no proceedings taken place under the Act for the finalization of partition. The partition cannot be recognised[xiv].
Effect Of Partition Of Estate And Tenancies On Joint Liabilities For Revenue And Rent
Section 110 talks about the effect of partition of estates and tenancies on joint liability for revenue and rent. Section 110(1) provides that a partition of land, either under this Chapter or otherwise, shall not, without the express consent of the Financial Commissioner, affect the joint liability of the land or of the landowners thereof for the revenue payable in respect of the land or operate to create a new estate and if any conditions are attached to that consent, those conditions shall be binding on the parties to the partition and Section 110(2) says that a partition of tenancy shall not without the express consent of the landlord, affect the joint liability of the co-sharers therein for the payment of the rent.
Unless the partition is not effected in accordance with the provisions of Land Revenue Act, Sections 111 to 123 and instrument of partition is drawn there is no partition in the eye of law and the same cannot be implemented and there will be no severance of status of co sharer as such[xv].
Further, in Amarjeet Singh v. Shangara Singh[xvi], the Financial Commissioner, Punjab observed that Naksha is a statement comparing area by sharers in the joint khata and the areas allotted to parties seeking partition. Naksha Be is an instrument of a partition on a stamped paper, which is prepared to give effect to the order of partition after any appeal against Naksha Be is decided or time for such appeal expired.
Also, in Desh Raj v. Om Prakash[xvii], the Financial Commissioner of Punjab held that the code of civil procedure does not apply to partition proceedings under Chapter 9 of the Punjab Land Revenue Act.
Application For Partition
Section 111 deals with the application of partition. It provides that “any joint owner of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a revenue-officer for partition of his share in the land or tenancy, as the case may be, [with proposed plan of partition indicating the quality and location of the land in question along with reasons for partition and copy of latest jambandi][xviii] if – (a) on the date of the application the share is recorded under Chapter IV as belonging to him or, (b) his right to the share has been established by a decree which is still subsisting at that date, or (c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.”
In Narinder Singh Ishar Singh v. Jagdip Singh[xix], the Court held that an application for the partition can be made by any joint owner if his share is recorded under Chapter 4. The owner is not in possession of land has unfettered right to seek partition of share in joint khata. All c-sharers have equal right of partition.
It was also held that the partition of any land or any land recorded as charand is illegal in the absence of impleading the Gram Panchayat[xx].
Moreover, it was also held that parties if not interest in seeking partition of joint-land through intervention of Revenue Officer under Section 111 they are at liberty to effect private partition and get private partition affirmed by Revenue Officer under section 123 or getting partition incorporated in revenue record by making application to Halqa Patwari as envisaged under Chapter 7.1 of Punjab Land Records Manual by withdrawing partition application[xxi].
In Bir Bhan v. Surajmuni[xxii], the Court observed that the partition proceedings are commenced with the presentation of application for partition of joint holding before the Asstt. Collector of Second Grade in Haryana. Thereafter, the application is processed, if any in dispute between the parties with regard to title in the land to be partitioned under Section 116 of the Act. Such a question can only be ascertained on some preliminary enquiry is held. The Revenue officer should hold in preliminary enquiry into the alleged question of title, to find out whether the objection is false, frivolous, vexations or genuining and give his findings in terms of Section 116 of the Act. If his finding is in affirmative, he must comply with provisions of under Section 117 of the Act and decide the question himself as a Revenue/Civil Court under Section 117(2) of the Act or direct the parties to get the question of title decided from the Competent Court.
It was held that two conditions- Person asking for partition should be a joint owner of land; and his share should be recorded in revenue record; must be satisfied before the application for partition can be made. The purchaser became joint owner after purchase of a share of joint land and in jamabandi name of purchaser recorded as a joint owner is entitled to make application of partition[xxiii].
Partition application Afresh
Previous inconclusive partition proceedings have no impact or bearing on fresh partition application. Under Section 111 no bar on any of the co-sharers in applying afresh for seeking separation of one’s share on the basis of entries in latest and updated record-of-rights. Partition proceedings if remain dormant for inordinate period due to inexplicable reasons on account of inaction or indifference on the part of any of the c-sharers at any stage before culmination in drawing up of instrument of Partition should be deemed to have been closed. Not prudent to revive such partition proceedings later, even if all c0-sharers press for their revival[xxiv].
Different khewats- partition has to be made khewatwise
The partition of joint agricultural land, through the invention of Revenue Officers is basically done khewat wise. For each khewat a separate application for partition is needed. In one application more than one khewats can be clubbed, where the co-sharers in all such khewats, irrespective of the quantum of shares are common, and not otherwise, meaning thereby partition of such khewats cannot be done by clubbing them together in one application and presently all three khewats could not be combined for partition in one application. Hence, separate application for each khewat is required[xxv].
Restrictions Or Limitations On Partition
Section 112 of the Punjab Land Revenue Act lays down some restrictions or limitations on partition of the land holding. Firstly, the places of worship and burial grounds held in, before partition shall continue to be so even after partition but if the parties agree among themselves and filed their agreement on record with Revenue Officer then such a restriction will not operate.
Secondly, the partition of:
- Any embankment, water pots, well or bank and any land on which the supply of water to such work may depend;
- Grazing grounds;
- Any land which is occupied as the site of a town or village and is assessed to Land Revenue.
The partition of above said properties may be refused by the Revenue Officer, in case, the Revenue Officer forms an opinion that the partition of such property is likely to cause inconvenience to the co-sharers or other persons directly or indirectly interested therein or the Revenue officer is of the opinion that it is likely to diminish the utility of such property to those persons.
Thirdly, the revenue-Officer may disallow the partition, in case, the application for partition is by joint owners of land and which may result into the severance of the property into two or more parts and also the tenancy thereon, unless and until, the tenants assents to the severance.
Fourthly, the Revenue Officer may absolutely disallow the partition of a tenancy, in case, the landlord objects to the partition.
In Prithi Singh v. Asstt. Director, Consolidarion, Rohtak[xxvi], the Court held that right to object is only of owner or right holder. The tenant not claiming any right or title so far as ownership of land is concerned cannot object to partition.
Where title is doubtful
It was held that Revenue Officers are required to proceed with partition of property only in such cases where the title of parties is clear. In case there is doubt about title, they should reject application for partition leaving the parties to get the question of title settled before seeking partition[xxvii].
In this case, the title of petitioners was not clear both on basis of customary law as well as on the basis of entries in revenue record. Wazab-ul-Urj of the village contains a provision which bars partition of the land. Use of Shamlat Deh in the column of revenue record would also imply that land is meant for common good of the village community. It was observed that Revenue Officers rightly refused to proceed with the partition[xxviii].
Partition of a well
Under section 111 of the Land Revenue Act, any joint owner of land may apply to a revenue officer for partition of his share in the land. The word “land” is not defined in the Act. As per section, it is obviously not possible to divide a well into separate physical parcels for allotment to each co-sharer. The intention of the legislature must have or more wells, partition may be effected by giving to one co-sharer one well and the land which depends for its supply of water on that well. When partition in some such manner is not possible, the well may be excluded from partition and retained as the joint property of co-sharers[xxix].
Place of worship
In case of objection that actual partition should not be affected as land a place of worship the Assistant Collector should first decide whether partition of land should or should not be refused. Opportunity of being heard to be given to all persons and organizations who may in terms of clause (c) of Section 112(2) legitimately claim that proposed partition would cause them harm[xxx].
Other persons directly or indirectly interested
It was held in case of objection that actual partition should not be effected as land a place of worship the Assistant Collector should first decide whether partition of land should or should not be refused. Opportunity of being heard to be given to all persons and organizations who may in terms of Clause (c) of the Section 112(2) legitimately claim that proposed partition would cause them harm[xxxi].
Duty of revenue officer-proper procedure
It was held that Revenue Officer to make wide publicity of the partition proceedings and to ensure that provisions of Sections 112, 113 and 119 regarding partition of such properties not violated. Land Administration Manual also lays down a clear direction that in deciding whether to use discretion under Section 112(2) one must think not only of the wishes or interest of landowners but also of likelihood of partition causing inconvenience to other residents of the village. Proper procedure must be followed in order to safeguard interest of village community and in order to ensure that rights of absentee parties not affected while sanctioning partition of Shamlat land[xxxii].
It is also settled law that partial partition is not permissible. However, non-agricultural land can be excluded from partition. For that purpose there must be positive findings that the part of land excluded was non-agricultural.[xxxiii]
Property which must, and property which may, excluded from partition
The village site, unless in the very rare case of its being assessed to land revenue, cannot be partitioned by proceedings under the Land Revenue Act. Even if it is assessed, the Assistant Collector may refuse partition[xxxiv] and this discretionary power may properly be held to extend to the uncultivated land round a village which is used as standing ground for cattle or occupied by enclosures for fodder and manure. Places of worship and burial cannot be partitioned unless the parties record and file an agreement assenting to their division[xxxv].
In arid tracts where the people depend on tanks for their own drinking water and for the watering of their cattle, it may be a matter of importance to keep the waste area which feeds a tank free from cultivation, though the land hunger is now so great that many of the owners may clamour to have it divided. If any of the joint owners afterwards encroaches on the land reserved land, he may be ejected from it on the application of any other co-sharers[xxxvi]. In deciding whether to use the discretion given by section 112(2) of the Act, one must think not only of the wishes and interests of the land-owners, as for example, the menials, who have been accustomed to use the common property. When any of it is excluded from partition, the Assistant Collector may determine the extent and manner to and in which the co-sharers and other persons interested therein may make use thereof, and the proportion in which expenditure incurred thereon, and profits derived there from, respectively, are to be borne by, and divided among those persons or any of them[xxxvii].
Notice Of Application For Partition
Section 113 provides that the Revenue-officer, on receiving the application under section 111, shall, if it is in order and not open to objection on the face of it, fix a day for the hearing thereof, and-
- Cause notice of the application and of the day so fixed to be served on such of the recorded co-sharers, as have not joined in the application [to submit their replies and plans of partition with cogent reasons][xxxviii], and, if the share of which partition is applied for, is a share in a tenancy, on the landlord also; and
- If he thinks fit, cause the notice to be served on any other person whom he deem to be directly or indirectly interested in the application [to submit their replies and plans of partition with cogent reasons[xxxix].
In Sucha Singh and another v. Nand Singh[xl], the Court observed that the perusal of Section 113 makes it evident that under sub-clause (a) notice of the partition proceedings is required to be served only on such co-sharers who are recorded as such in the revenue record and have not joined in the application. If during the pendency of the partition proceedings sale of a part of a joint land is effected, there is no need to serve notice to the transferees. The only requirement is that the service of notice should be carried out to the co-sharers who held the joint status at the time of filing of the partition proceedings. It was further held that two transferees being successors in interest of transferor are bound by final or in partition proceedings.
In Bag Ram etc. v. Avtar Singh[xli], one of the co-sharers Smt. Avtar Kaur filed an application for partition of the land before the Asstt. Collector 1st Grade, on 01.04.1940 impleading Smt. Mohinder Kaur and Pritam Kaur, who were her sisters, as respondents. During the pendency of the partition proceedings, Smt. Pritam Kaur sold her share in favour of Bag Ram and Roop Chand, as such Bag Ram and Roop Chand were also impleaded as respondents before the Asstt. Collector 1st Grade. The Asst. Collector 1st Grade ordered the final partition vide its order dated 12.07.1972. On the 29.11.1984, Bag Ram filed an appeal before Collector, against the order dated 12.07.1972 passed by the Asstt. Collector 1st Grade, on the ground that the order has been passed ex-part, since he had purchased the agricultural land from co-sharer, Pritam Kaur and had thus become necessary parties to the proceedings. The petitioners had not intimated the Revenue Officers during the partition proceedings about the sale. It was held by the Financial Commissioner, Punjab that the delay in filing an appeal is not material as the purchasers came to know of the decisions of the partition of the land only when proceedings started to change possession, is not surviving notice upon hem by the Revenue Officer during the partition proceedings as such the order dated 12.07.1972 was set aside and the case was remanded for fresh trial after the purchasers.
Addition Of Parties To The Application
Section 114 says that, “on the day fixed for the hearing, or on any day to which the haring may be adjourned, the Revenue Officer shall ascertain whether any of the other co-sharers desire the partition of their shares also, and if any of them so desires, he shall add them as applicants for partition”. In simple words, Section 114 provides that the Revenue Officer may add any person as applicant for partition if such a co-sharer desires the partition of his share also[xlii].
In a suit for declaration that plaintiff in possession of land decreed by Assistant Collector 1st Grade, but Collector set aside the findings of the Assistant Collector 1st Grade. It was observed by the Court that the findings of Commissioner, that person is neither a joint owner of land holdings according to Jamabandi nor does any decree subsist in his favour whereby his rights on land has been established then he cannot be impleaded as a party in partition proceedings, does not suffer any irregularity or illegality[xliii].
Also, it was held that where on vesting of proprietary rights in occupancy tenants they become owners not only of the land under their occupation but also become co-sharers with the other proprietors to the extent of original landowners and are therefore, entitled to become parties in the partition proceedings then it is necessary to ascertain as to what was the share in the Shamilat of the original landlord[xliv].
Absolute Disallowance Of Partition
Section 115 provides that “After examining such of the co-sharers and other persons, as may be present on that day, the Revenue Officer may, disallow the partition in those cases only where application is made for the partition of common path, common water-course or such like place, used for common purposes[xlv].
Earlier, Section 115 empowered the Revenue officer to absolutely disallow the application for partition of the land or tenancy if in the opinion of the Revenue Officer that there is good and sufficient cause thereby recording the grounds of his refusal[xlvi].
Also, in the case of Swarup Singh v. Angrej Singh[xlvii], the Financial Commissioner, Punjab held that if the result of the partition would be creation of holdings of such minute size as to be of little use to the share holders, it is desirable to disallow the partitioning of the property.
Settlement Of Disputes By Conciliation
Sub-section (1) of the Section 115-A[xlviii], provides that “Where it appears to the Revenue Officer that a settlement may be acceptable to both the parties to the partition, he shall formulate the terms of settlement and submit the same to the parties for their suggestions. After receiving their objections or suggestions, the Revenue Officer, shall re-formulate the terms of settlement, possible in the prevailing situation and refer the same for conciliation with the intervention of the elders where property is situated; and if the settlement is agreed upon by both the parties through a written deed, the Revenue Officer shall pass an order in accordance with such deed. The orders so made by the Revenue Officer shall be final and a partition deed shall be issued accordingly.”
Sub-section (2) provides that “If no settlement is reached under sub-section (1), the Revenue Officer shall, within a period of four months after the date of making reference for conciliation, but not later than six months from the date of initiation of conciliatory proceedings, pass order on merits, as he may deem appropriate in the circumstances of the case after hearing of the parties.”
Procedure On Admission Of Application
Section 116 lays down that “If the Revenue Office does not refuse the application under the last foregoing section, he shall ascertain the question, if any the dispute between any of the person interested distinguishing between:
- Question as to title of which partition is sought; and
- Questions as to the property to be divided, or the mode of making the partition.”
The Punjab Records Manual deals with the setting of mode of partition wherein it has been provided that before sanctioning the mode of partition, Asstt. Collector 1st Grade should visit the spot and then decide the method of the partition to be followed in dividing the land in accordance with the shares of the parties. A map of the land under partition and statement showing area to be divided and shares of the parties should also be got up from the patwari halqa and kanungo. At the time of setting of the ode of partition, he Revenue Officer should not disturb the possession of the parties as well as possible[xlix].
When a Revenue Officer entertains an application for partition, he must first determine whether there is any dispute between the parties in regard to the title of the property for this purpose, the Revenue Officer should hold a preliminary enquiry into the question of title and give his findings in terms of Section 116 of the Punjab Land Revenue Act, whether the question of title, if or if not involved in the partition proceedings[l]. If rightly or wrongly, the Revenue Officer comes to the conclusion that there is question of title involved he should comply with the provisions of Section 117 of the Act and decide the question himself as a Civil Court or refer the parties to a competent Civil Court and should not continue with the proceedings until the question of title is decided as such[li].
Also, in Daya Singh v. Ajaib Singh[lii], the Courtheld thet when a Revenue Officer who is seized of a matter under this Section comes to a conclusion that a question of title is involved he has no jurisdiction to proceed with the partition, however if he holds in his discretion that no such question of title is involved and even though his conclusion may be incorrect and carries on with the proceedings such proceedings cannot be without jurisdiction.
In Anant Ram v. Khushi Ram & others[liii], the Court observed that the Principle of Consolidation of Holding is an important factor to be kept in mind, even when not mentioned in the mode of partition while carrying out mode of partition. The mode of partition was approved by the Asstt. Collector to the consent of the parties, the objection was raised that the partition was not carried according to the mode of partition. It was held that the partition should be carried according to the kind of land and possession of parties after giving due consideration to the consolidation of holdings, even though, not mentioned in the mode of partition. The Court further held that the Principle of Consolidation should not be ignored, even though, there occur small differences in area and minor changes in the possession of the parties.
In the case of Munshi & Others v. Bhup Singh & others[liv], on receipt of the partition application the Asstt. Collector, 1st Grade, Rohtak, visited the site on 20.06.1978 and proposed a mode of partition on 18.07.1978 which was approved on 04.08.1978. The order dated 04.08.1978 sanctioning the mode of partition was not challenged in appeal. The final partition was approved by the Asstt. Collector on 06.11.1978. On the grounds that the mode of partition itself was unjust and inequitable, the Court held that the mode of partition was not challenged in appeal and thus, became final. The final partition can only be challenged on the ground that it has not been carried out in conformity with the mode of partition. The Court further held that final order cannot be challenged on the grounds that the mode of partition was unjust and inequitable.
Disposal Of Questions As To Title In Property To Be Divided
Sub-section (1) of the Section 117 says that “When there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court or he may himself proceed to determine the question as though he were such a Court.”
Sub-Section (2) provides that “Where the Revenue-officer himself proceeds to determine the question, the following rules shall apply, namely:
- If the question is one over which Revenue Court has jurisdiction, the Revenue-Officer shall proceed as Revenue Court under the provisions of the Punjab Tenancy Act, 1887.
- If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court and he shall record a judgment and decree containing the particulars required by the Code of Civil Procedure to be specified therein.
- An appeal shall lie from the decree of the Revenue-Officer under clause (b) as though that decree were a decree of a Subordinate Judge in an original suit.
- Upon such an appeal being made, the District Court or High Court, as the case may be, may issue an injunction to the Revenue-officer requiring him to stay proceeding pending the disposal of the appeal.
- From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force.”
Section 117 of the Act provides that a Revenue Officer may in discretion decline to sanction a partition where a question of title is involved, till such a question has been determined by the Competent Court[lv].
It is clear from a reading of the section that is on receiving application for partition the Revenue finds that question of title is involved, he may stay that application for partition until the question has been determined by a competent Court or he may proceed to determine the question as though he was such a Court. In Siraj Din v. Narain Das and others[lvi], Chief Justice Shadi lal (as his Lordship then was) speaking for the Division Bench, after referring to a judgment of the Division Bench of the Punjab Chief Court in Mt. Lachmi Bai v. Mt. Hondi Bai, held that “the only power which Section 117 of the Punjab Land Revenue Act gives to a Revenue Officer acting as a Court is to determine the question of title arising in the partition proceedings. It will be observed that a Revenue Officer as such has no jurisdiction to determine any civil dispute, but an exception has been made in the case of a Revenue Officer dealing with an application for partition. In such a case, if a question of title is raised, he cannot order partition until that question is determined by a competent authority. A Civil Court is the only authority having jurisdiction to adjudicate relating to title, but in order to expedite the partition proceedings the legislature has created an exception to the ordinary rule and invested the Revenue Officer with jurisdiction to determine the question of title as if he were a Court”. On determination of question of title by the Revenue Officer, an appeal lies to the District Judge under Clause © of the sub-section (2) of Section 117 of the Act. Second appeal is provided to High Court[lvii].
It was held that the idea of the providing remedies under Section117 is, on the one hand to take away complicated questions of title from the ambit of summary revenue proceedings and at the same time to prevent undue and prolonged litigation, when there is no real question of title involved. In either case, any party, aggrieved by the proceedings taken by a Revenue Officer, is free to go a Civil Court to get redress of any alleged question of title. The question really is which party should go to the Civil Court. Here, the answer would be that if prima facie a question of title is visible to the Revenue Officer, and then the party seeking partition must go to a Civil Court. If, on the other hand, no such prima facie question of title is visible, then the party who opposes the partition, must go the Civil Court. From this, it follows that it is the duty of the Revenue Officer to have a prima facie look at the evidence before him and then determine whether a question of title does exist or not[lviii].
Further, in Balwant Singh v. Gurdit Singh[lix],the Court observed that the Sections 116 and 117 of the Act, have to be read together and obvious effect is that the Reveue Officer is competent to satisfy himself by making some sort of preliminary enquiry, as to whether question of title is at all involved in the partition proceeding and if so then Section 117 will at once come into operation and the Revenue Officer is bound to elect one of the two alternatives, that is, either he should decline to grant the application for partition until the question has been decide by the competent Court or he may himself proceed to determine the question s though he were such a Court. In other words, the obvious effect of this interpretation would be that if the plea regarding question of title alleged to be involved in a partition proceedings is found to be vexatious and frivolous character, the Revenue Officer will be acting within his jurisdiction to ignore the plea and to proceed with the partition proceedings and complete the same to their logical end. In that case the aggrieved part is still competent to seek remedy from a civil Court and if he succeeds in securing a decree in his favour, the partition is at all sanctioned on the application of the other party, could be undone in execution of that decree.
In the case of Chanan Kaur v. Gurbachan Kaur[lx], it was held that s per provisions of Section 117 it is clear that before the partition proceedings are proceeded with the question of title if any has to be settled first. The law gives powers to the Revenue Officers, being the competent court, to sit as a Civil Court under Section 117(2)(b) of the Act and decide first the issue of title. In the alternative, concerned parties may approach the Civil Court and get the issue of title decided by it. Revenue Officer as well as the Civil Court, both are competent to decide the issue of title under this section.
Also, where the Asstt. Collector, 1st Grade, on the application for partition, did not care to go into prima facie evidence on the question of title raised and jumped to the conclusion that as some objection had been raised he was bound to adjourn the case and send the parties to a Civil Court. It was held that this is not the intention of law. It was the duty of the Asstt. Collector, 1st Grade, to have a prima facie look at the evidence, including the documentary evidence on record and if still felt that a question of title was there, he should have passed an order under Section 117 of the Act[lxi]
Moreover, in the case of Raja Ram @ Rajinder v. Tehsildar Cum Asstt. Collector[lxii], it was held that where the petitioners have hopelessly failed to inform the High Court by describing the facts supported by the revenue record or conveyance deeds and if a suit was pending, the petitioners could have filed copies of pleadings and orders of Trial Court, but having failed to do so, it must be concluded that there was no question of title at all involved in this case and Revenue Officer has rightly rejected the objection.
In Sultan v. Bahadur[lxiii], the Divison Bench of the Lahore High Court held that the Revenue Officer can exercise the jurisdiction of a Civil Court only when there is an application for partition before him, which he can adjudicate upon a Civil Court including the question of title, but not otherwise.
In other case, Haqiq v. Gurbachan[lxiv], the Court held that when an appeal filed against the decision of the lower Court on the question of title and the appellate Court has still to give a decision on it, it simply means that the question of title is yet to be determined it cannot be said that since the decision of the lower Court has not been reversed, the matter may be deemed to have been settled for the present. In such circumstances, even a suit for rendition of accounts in respect of part of property which has been partitioned cannot be proceeded with, as accounts cannot be settled in piecemeal.
Disposal Of Other Questions
Section 118(1)[lxv] provides that “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 inquiry, as he deems necessary, record an order stating his decision and the reasons for the decision.” Sub-Section (2) provides that “No appeal shall lie against he decision referred to in sub-section (1).”
After the Amendment of 2011, Sub-sections (3) and (4) have been deleted. Earlier, the Section 118 provided the power of the Revenue Officer to settle the firstly the question as to property to be divided and secondly the mode of making partition but now, after the Amendment, it just provides the power of the Revenue Officer to settle the firstly the question as to property to be divided and then says that such an order shall be final and no appeal shall against lie against it.
In Narinder Singh v. Jagdip Singh, the Court laid down the following factors which the Revenue Officer may keep in view while sanctioning the mode of partition:
- Rule of equal proportion of each class of land.
- Rule of possession up to the extent of share of each co-sharer in different class of land.
- Allowance to be made for labour spent, by a co-sharer in effecting improvement.
- Some adjustments may have to be made in each cases, where possession and entitlement do no match exactly.
- Point of agricultural efficiency can also not to be lost sight of.
- An integrated approach should be made and fragmentation of holding be kept to minimum.
In Ram Sarup v. Satbir[lxvi], it was observed that any violation of mode of partition is a grave irregularity and if final decision is not based on mode of partition originally by the Asstt. Collector such partition cannot be sustained.
Also, it was held that where there is considerable variation in quality of land, partition fragmentation of holdings should be avoided. The co-sharers should ordinarily be persuaded to allow partition to take place in such a manner that a minimum number of compact blocks falls to the share of each co-sharer. The c-sharers may have to be allowed share in different pieces of land, if there is considerable verification in quality. This would also become necessary if land can be used for the purposes other agriculture. The possession of co-sharers would not be overriding factor for effecting partition.
Administration Of Property Excluded From Partition
Section 119 says that “When any such property as referred to in Section 112, clause (2), is excluded from partition, the Revenue Officer may determine the extent and manner in which the co-sharer and other persons interested therein may make use thereof and the proportion in which expenditure incurred thereon and profits derived therefrom, respectively, are to be borne by and divided among those persons or any of them”.
Distribution Of Revenue And Rent After Partition
Section 120(1) lays down that “The amount of revenue to be paid in respect of each of the holdings into which land has been divided on a partition and the amount of rent to be paid in respect of each of the portions into which a tenancy has been so divided, shall be determined by the Revenue-Officer making the partition”.
Sub-Section (2) provides that “the determination of the Revenue-officer, as to the revenue to be paid in respect of each holding, shall, where the estate in which the holding is situated is subject to a fixed assessment, be deemed to be an order under Section 56, Sub-Section (1.)”. Lastly, Section 120(3) says that “where new estates have been created at a partition and the land revenue has been fraudulently or erroneously distributed among them, the State Government may, within twelve years from the time of discovery of the fraud or error, order a new distribution of the land-revenue among several estates on an estimate of the assets of each estate at the time of partition, to be made conformably to the best evidence and information procurable respecting the same”.
This provision provides for the distribution of revenue and rent after partition of various holdings which has come into existence as a result of partition. Such distribution of revenue and rent shall be made by the Revenue Officer at the time making the partition[lxvii].
Instrument Of Partition
Section 121 provides that “when a partition is completed, the Revenue Officer shall cause an instrument to be prepared and the date on which the partition is to take effect to be recorded therein”.
The term “completion of partition proceedings” appearing in Section 121 of the Act says that when partition is completed, the Revenue Officer shall cause an instrument of partition to be made and the date on which the partition is to take effect be recorded herein. The plain reading of the Section 121 provides that instrument of partition is to be prepared after the partition had been completed which means that one the distribution of revenue, rent etc. had been determined under Section 120 of the said Act partition is complete[lxviii]. The joint status of the parties comes to an end once the partition order has been passed. Partition is not effective in the absence of instrument of partition. No severance of status of co-sharers takes place in the absence of instrument of partition and delivery possession of the allotted portion joint land to parties.
The term “completion of partition proceedings” as mentioned in Section 121 of the Act came up for interpretation in Hidayat Khan and others v. Shahamand and others[lxix], wherin it was held thus:
“It means simply that all the disputes raised before the Revenue Officer had been decided by him but up to that date the joint estates remained joint. The parties had not been even inducted into several shares which it was proposed to allot to them under the scheme of any partition and apparently no forma order of that kind was ever passed. After appeal to settlement officer and applications for revision to the Financial Commissioner had been rejected, the Revenue Officer gave order for drawing up of the deed of partition and the deed of partition was accordingly drawn up on 1st December, 1905 and in obedience to the provisions of Section 121 of the Land Revenue Act, it was provided in that deed that the partition should take effect from the Kharif 1905. It is of course quite possible that a partition should be made and possession of the several lots be giving and taking of possession by the several sharers of their several lots would be held to be on the date on which the joint holding ceased to be joint and became severalty. The present, however, is not such a case. There was no doubt that proceedings taken with a view to effect partition long before kharif 1905 but those proceedings culminated and found their ultimate result an expression in the instrument of partition and that instrument provided that the land should remain joint up to Kharif 1905 and become severalty only in that harvest. From this it follows that even if the sharers took possession of the plots allotted to them before kharif 1905 their possession upto that date was merely the possession of co-sharers in separate possession of portions of the joint estate”.
It was also held that the right flows from the action of individual ownership of property. This right is one of the ordinary legal incidents of joint ownership. It is merely an arrangement whereby co-owners having an undivided interest in one or many properties take by arrangement specific in lieu of their shares in all. Section 111 of the Act provides that any of joint owners or a person having a decree for partition or any written acknowledgment of the right is competent to apply for partition[lxx].
Delivery Of Possession Of Property Allotted On Partition
Section 122 lays down that “an owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof as against the other parties to the proceedings and their legal representatives and a Revenue-officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.”
The instrument of partition prepared under Section 121 of the Act is the last formality which is performed by the Revenue Officer in relation to partition proceedings. If the owner is not already in the possession of land following in his share, then he may apply to the Revenue Officer under Section 122 of the Act for the execution of his order and delivery of the possession within three years of the date specified in the instrument of partition[lxxi].
The Full Bench in Bachan Singh v. Madhan Singh[lxxii], held that the instrument of partition following the final orders of the revenue-officer and drawn by him is a sort of quasi-decree but not exactly a decree. Section 122 only declares that such an order is enforceable as a decree under certain circumstances.
It was held that when a partition is completed, the Revenue officer is required to cause an instrument of partition to be prepared. The date on which the partition is to take effect is also recorded in the instrument. It is only after the instrument is drawn up and delivered to the parties that either of the interested parties becomes competent to file an application for taking possession of the land falling to his lot. The order regarding delivery of possession has to be passed keeping in view the stipulations made in the instrument of partition. Under Section 122 of the Act, the instrument of partition is to be given effect as if it were a decree for immovable property. As such, no order for delivery of possession can be passed without undergoing the provisions of Sections 121 and 122 of the Punjab Land Revenue Act[lxxiii].
Affirmation Of Partition Privately Effected
Section 123(1) provides that “in any case n which partition has been made without the intervention of a revenue officer , any party thereto may apply to a revenue-officer for an order affirming the partition”. Then Sub-section (2) provides that “on receiving such an application, the revenue-officer shall inquire into the case and finds that the partition has in fact been made, he may make an order affirming it and proceed under Sections 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”.
Section 123 of the Act provides for partition of agricultural land by consent/ compromise of he parties but such compromise must be affirmed by the revenue officer after holding its enquiry[lxxiv].
The revenue officer after the receipt of an application under section 123(1) shall proceed to hold an enquiry under Section 123(2) of the Act and if he comes to the conclusion that a partition in fact has taken place, he shall deal with the matter under Section 119 to 122 or any those sections as the circumstances may warrant but where the co-sharers have actually compromised and then revenue-officer may accept the compromise and affirm the partition (discretion)[lxxv].
Power To Make Rules As To The Costs Of Partition
Section 124 provides that the Financial Commissioner may make rules for determining the costs of partition under this Chapter and the Mode in which such costs are to be apportioned.
Re-Distribution Of Land According To Custom
Section 125 says that “when by established custom any land in an estate is subject to periodical redistribution a revenue-officer may, on the application of any of the land-owners, enforce the redistribution according to the custom and for this purpose may exercise all or any of the powers of revenue-officer in proceedings for partition”.
Officers Who May Be Empowered To Act Under This Chapter
Section 126 provides that “the revenue-officer by whom the proceedings may be taken under this Chapter shall be a Revenue officer of a class not below that of Assistant Collector of the first grade[lxxvi]”.
In the case of Ramji Dass v. Arjan Singh[lxxvii], it was held that Under Section 126 of the Punjab Land Revenue Act, partition proceedings may be taken only by the revenue officer not below that of Assistant Collector, 1st Grade (2nd Grade for Haryana). An Assistant Collector, 1st Grade, may however, sent a partition case to an Assistant Collector, 2nd Grade for investigation and report.
Edited by Kudrat Agrawal
[i] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p.67
[ii] 4 P.R. 1903 (Rev.)
[iii] 1971 PLJ 397 (FCP)
[iv] 1969 PLJ 530
[vi] 1972 PLJ 124
[vii] Balwant Singh v. Ishawar Singh, 2001 (3) RCR (Civil) 303 (FCH)
[viii] 1961 AIR 528 PB
[ix] 1981 PLJ 204.
[x] 1996(3) RCR (Civil) 323 (FCP)
[xi] Section 120(1).
[xii] Punjab Land Administration manual, Para 452
[xiii] Punjab Land Administration manual, Para 451
[xiv] Arjan Singh v. Hem Raj, 1986 RRR 458 (P&H)
[xv] Darbara Singh v. Gurdial Singh, 1994 (1) RRR 460 (P&H)
[xvi] 1996(3) RCR (Civil) 324 (FCP)
[xvii] 1971 PLJ 397 (FCP)
[xviii] Added vide The Punjab Land Revenue (Amendment) Act, 2011.
[xix] 1986 RRR 414 (FCP)
[xx] Balwant Singh v. Ishawar Singh, 2001 (3) RCR (Civil) 303 (FCH)
[xxi] Rehmdin v. Nur Mohd., 1998 (2) RCR (Civil) 531 (FCP)
[xxii] (1969) PLJ 530
[xxiii] Punni v. Chet Ram, 1986 RRR 75 (FCH)
[xxiv] Rehmdin v. Nur Mohd., 1998 (2) RCR (Civil) 531 (FCP)
[xxv] Chetan Kaur v. Dalip Singh, 1998(4) RRR (Civil) 605 (FCP)
[xxvi] 1980 PLJ 640.
[xxvii] Prita, Jit Singh and others v. Amro, Dayal, 1992(1) RRR 358 (FCP)
[xxix] Mohammad Hussain v. Ladha, 1947 LLT 16 (FCP)
[xxx] Swami Krishan Dev v. Malkhan Singh, 1980 PLJ 266 (FCP)
[xxxii] Zail Singh v. Ruple, 1984 PLJ 51
[xxxiii] Mahender v. Jage Ram, 1999 (3) RCR (Civil) 438 (FCH)
[xxxiv] Section 112(2)(c)
[xxxv] Section 112(1)
[xxxvi] Section 150
[xxxvii] Section 119 of the Act and Punjab Land Administration Manual, Para 453
[xxxviii] Amended vide The Punjab Land Revenue (Amendment) Act, 2011
[xl] 1950 To 1988 LJR (Rev.) 455
[xli] 1952 To 1988 LJR (Rev.) 646
[xlii] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p.74
[xliii] Siri Ram v. Narainoo, 1993 (2) RRR 404 (FCHP)
[xliv] Nasib Singh v. State of Haryana, 1991 (2) RRR 473 (P&H)
[xlv] Amended vide The Punjab Land Revenue (Amendment) Act, 2011
[xlvi] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p.74
[xlvii] 1972 PLJ 443 (FCP)
[xlviii] Added vide The Punjab Land Revenue (Amendment) Act, 2011
[xlix] Supra note xlvi, p.75.
[l] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, pp.74-75
[li] Bir Bhan v. Surajmani, 1969 PLJ 530
[lii] 1979 (Rev.) LJR 496
[liii] 1950 To 1988 LJR (Rev.) 482
[liv] 1980 LLT 67
[lv] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p. 77
[lvi] AIR 1927 Lahore 412
[lvii] Nand Singh v. Labh Singh, 1997 (4) RCR (Civil) 589 (P&H)
[lviii] Neety Kaul, Land laws in Punjab & Haryana, Chandigarh: Chawla Publications, 2011: revised 4th ed., p. 284
[lix] 1969 PLJ 68
[lx] 2002 (2) RCR (Civil) 167 (FCP)
[lxi] Jangir Kaur v. Smt. Mohinder Kaur, 1997 (4) RCR (Civil) 589 (P&H)
[lxii] 2001(2) RCR (Civil) 739 (P&H) (DB)
[lxiii] AIR 1935 Lah. 269
[lxiv] 1965 PLJ 146
[lxv] Amended vide The Punjab Land Revenue (Amendment) Act, 2011
[lxvi] 1988(2) RRR 599 (FCH)
[lxvii] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p. 80
[lxviii] Neety Kaul, Land laws in Punjab & Haryana, Chandigarh: Chawla Publications, 2011: revised 4th ed., p. 286.
[lxix] AIR 1924 Lahore 155
[lxx] Pritam Singh v. Jaskaur Singh, 1993 (1) RRR 390 (P&H) (DB)
[lxxi] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p. 81.
[lxxii] 61 PR 1897 (FB)
[lxxiii] Kartar Singh v. Kapur Singh, 1971 PLJ 677
[lxxiv] P.S. Khurana & Amarjit Khurana, Khurana’s A Treatise on Land laws in Punjab, Chandigarh: Shreeram Law House, 2003, p. 82
[lxxvi] Read 2nd Grade for Haryana.
[lxxvii] 1968 PLJ 241