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Synopsis

The Supreme Court has said that the rights and status of parties get decided and joint status is severed on the day when an order under Section 118 of the Punjab Land Revenue Act, 1887 is passed or Naksha Bey (site plan) is directed.

A bench of Justices Sanjiv Khanna and S V N Bhatti said that the date on which an order under Section 121 of the Revenue Act is passed or Naksha Zeem is prepared and deed of partition is registered, is the follow up action, and not the date of actual partition. 

"The legal position that status of co-sharers ceases to exist only after the final partition is affected on the execution of the instrument of partition under Section 121 of the Punjab Land Revenue Act, 1887, an enactment also applicable to the State of Haryana. This view and legal position are erroneous," the bench said.

Referring to the recent decision in 'Jhabbar Singh (Deceased) Through Legal Heirs and Others v. Jagtar Singh' (2023), the bench pointed out that the top court has laid down two legal propositions: Firstly, the Constitution Bench in case of 'Shyam Sunder and Others v Ram Kumar and Another' (2001) held that for exercise of right of pre-emption, the pre-emptor should possess the right to pre-empt on the date of sale, and also on the date of the decree by the court of the first instance. Secondly, joint status ceases when an order for division of the property under Section 118 of the Revenue Act is passed.

Analogy was also drawn from the provisions of Order XX, Rule 18, Sub Rule 1 of the Code of Civil Procedure, 1908, as the preliminary decree of the partition decides the share and entitlement to division and separate possession.

"Consequential division by metes and bounds, are ministerial or administrative acts requiring physical inspection, measurements, calculations and consideration of various permutations, combinations or alternatives of division. The date on which the order under Section 118 of the Revenue Act is passed or the Naksha Bey is directed, is the date of partition. The rights and status of the parties stands decided. The joint status is severed on the date of the decision," the bench said. 

"The date on which an order under Section 121 of the Revenue Act is passed or Naksha Zeem is prepared and deed of partition is registered, is the follow up action, and not the date of actual partition," the bench added.

The court allowed an appeal by one Ram Kishan and another and set aside the Punjab and Haryana High Court's judgment of August 31, 2018.

It also declared that the suits filed before the Court of Sub-Judge, Bahadurgarh, District Rohtak, Haryana, will be treated as dismissed. 

The bench pointed out that when the suits were dismissed by the trial court on October 31, 1990, the order dated January 16, 1989 under Section 118 of the Revenue Act, Naksha Bey had been passed and prepared. The plea for pre-emption was decreed by the first appellate court on October 03, 1991, it noted. 

"For the purpose of the record, we will mention that subsequently Naksha Zeem, that is, an order under Section 121 of the Revenue Act was passed, and the deed of partition was registered on March 27, 1992," the bench said.

In the instant case, the highcourt had upheld the judgment of the first appellate court, decreeing the suit for pre-emption filed by the plaintiffs, Daya Nand (deceased) and others.  Aggrieved, the defendant - purchasers, Ram Kishan and another; and Siri Bhagwan and others preferred the present appeals. The Trial court by judgment of October 31, 1990 had dismissed the suits.

The tpo court bench said that the high court's judgment was predicated on the legal position that status of co-sharers ceases to exist only after the final partition is affected, which was not the correct position of law.

Case Title: RAM KISHAN & ANOTHER VERSUS DAYA NAND(D)THR. LRS & OTHERS