Chhote Khan, Deceased, Represented By... vs Mal Khan And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 61 of 1951

Decision Date: 21 April 1954

Coram: Ghulam Hasan, B. Jagannadhadas

In the matter titled Chhote Khan, Deceased, represented by his son Harmat, versus Mal Khan and others, the Supreme Court of India delivered its judgment on 21 April 1954. The decision was authored by Justice Ghulam Hasan, who was seated on the bench together with Justice B. Jagannadhadas and Justice Sudhi Ranjan Jagannadhadas. The case was cited as 1954 AIR 575 and 1955 SCR 60. The primary question before the Court concerned the effect of an entry regarding an agreement recorded in a Wajib-ul-arz, specifically whether such an entry remained valid after the expiry of the settlement period. The Court held that an entry concerning an agreement in a Wajib-ul-arz was operative only for the duration of the settlement and could not survive beyond the settlement’s termination. The judgment referred to earlier authorities, including Hira and others v. Muhamadi and others (16 P.R. 1915 at p. 89), Allah Bakhsh and others v. Mirza Bashir-ud-Din and others (1932 L.T.R. 56) and Lieut. Chaudhri Chattar Singh v. Mt. Shugni and another (AIR 1941 Lah 239).

The appeal arose from Civil Appeal No. 61 of 1951, which challenged the judgment and decree dated 10 November 1944 delivered by the Lahore High Court, then presided over by Sir Trevor Harries C.J. and Justice Mahajan, who later became the Chief Justice of this Court. That High Court judgment had reversed an earlier decision of the Assistant Collector, First Grade, Gurgaon, who acted as Senior Sub-Judge, and had dismissed the suit filed by the appellants. The original suit originated in the Court of the Extra Assistant Settlement Officer and Assistant Collector of the First Grade, Gurgaon, as Senior Sub-Judge, in Suit No. 35 of 1940-41. The appellants were represented by counsel Dr. Bakshi Tek Chand together with Ram Nath Chadha and Ganpat Rai, while the respondents numbered 1, 3, 7 to 11 and 13 to 19 were represented by counsel Naunit Lal. The dispute involved the descendants of five familial branches. Dalmir, Dilmor and Chhinga were three brothers, and Amir Khan and Sharif Khan were two collaterals; Alif Khan was the son of Amir Khan. The suit was instituted by the descendants of Dalmir against the descendants of Dilmor, Chhinga, Alif Khan and Sharif Khan, and also included some of Dalmir’s own descendants as defendants. The plaintiffs sought a declaration confirming that they, together with pro-forma defendants numbered 17 to 19, were full owners in possession of 819 Bighas 19 Biswas of land situated in the village of Manota, Tehsil Ferozepore-Jhirka, Gurgaon District. They contended that defendants numbered 1 to 16 had no right to claim partition of that land and that the plaintiffs were entitled only to the produce of a separate portion measuring 140 Bighas 19 Biswas, which they possessed without any obligation to pay land revenue. The defendants, it was alleged, were bound by the terms of an agreement dated September 2 1861, recorded in the Wajib-ul-arz of that settlement and reiterated in subsequent settlements, which prohibited them from asserting any right to partition. The Assistant Collector, exercising jurisdiction under section 117 of the Punjab Land Revenue Act (Act XVII of 1887), adjudicated the suit. He concluded that the contesting defendants were entitled solely to the produce of the 140 Bighas 19 Biswas of land that they possessed, reinforcing the limitation imposed by the earlier agreement.

In this case, the court examined an agreement dated 11 September 1861 that was recorded in the Wajib-ul-arz of the Settlement and was reiterated in later Settlements, which purported to deprive certain parties of any right to seek partition. Defendants numbered 1 to 16, identified as the contesting defendants, asserted in their defence that the plaintiffs together with the pro-forma defendants numbered 17 to 19 were recorded in the revenue records. The revenue records showed that they owned a one-fifth share of the disputed land. The same revenue documents showed that the contesting defendants held the remaining four-fifths share, and therefore they claimed a right to demand partition of the whole estate. The contesting defendants further denied that any clause in the Wajib-ul-arz restricting their partition right remained enforceable after the Settlement term had expired. They argued that such a clause could not operate as a bar to their claim. The Assistant Collector, who tried the suit as a civil court under section 117 of the Punjab Land Revenue Act (Act XVII of 1887), issued a decree granting the plaintiffs' claim. In that decree the Collector held that the contesting defendants were entitled only to the produce of 140 Bighas and 19 Biswas of land in their possession, exempt from land revenue. He further held that they possessed no interest in the remaining portion of the property. The High Court reversed this decree, concluding that the contesting defendants were proprietors of the four-fifths share and that the original agreement, reiterated in subsequent Settlements, remained binding while the Settlements were in force. The High Court further held that the agreement lost its effect after the expiry of the Settlements. It also held that its renewal in the 1938-39 Settlement was not binding because the contesting defendants had not assented to it. The learned judges relied upon judgment D.4 dated 15 June 1893 of the Chief Court of Punjab inter-parties, which declared that the prohibition of partition contained in the Wajib-ul-arz did not survive the Settlement’s termination. According to that precedent, because the contesting defendants were owners, the right to partition was inherent in their ownership. On the basis of those findings the suit was dismissed. Counsel for the appellants was heard at length, but the court found that the appeal possessed no merit. The parties involved belong to the Meo community and the disputed land is situated in the village of Manota, tehsil Ferozepore Jhirka, Gurgaon district. According to the 1910 Gazetteer of Gurgaon district, the Meos owned almost the entire Ferozepore tehsil and several other villages in Gurgaon. They were organized into multiple sub-tribes with a strong sense of unity and collective action. The Gazetteer observed that during the mutiny members of each sub-division generally acted together and that district officers were advised to stay informed about influential men who periodically held sway over their fellow tribesmen.

In this case the Court recorded that the property forming the subject of the dispute had been covered by four successive settlements, each settlement extending for a period of thirty years. The first settlement had been made between the years 1839 and 1842, the second between 1872 and 1879, the third between 1903 and 1908, and the latest settlement, which was then in force, had been made in the years 1938-1939. The village in which the land lay had been assessed for an annual revenue of Rs. 323 for the thirty-year period from Fasli year 1246 to 1275, which corresponds to the years 1839-1862 A.D. The revenue demand for that period had been payable by Dalmir Lamberdar, who was described in the settlement documents as the sole owner. The original settlement papers, however, had been lost during the mutiny, and after fresh measurements of the land were taken new settlement papers were prepared. Alif Khan, Dalmir and Dilmor executed an agreement that bound them by all the conditions, provisions and declarations that had been made at the time of the settlement. It was accepted by the parties that the land had originally been granted in the year 1822 A.D. to Dalmir by Nawab Ahmad Bakhsh Khan Rais of Ferozepore Jhirka. That grant was not recorded in writing, and no contemporaneous record existed that could clarify its terms. Dalmir claimed that he was the sole grantee and that he possessed full proprietary rights. Several documents were annexed to the settlement record of 1863, and those documents were considered important because they showed how the settlement authorities had dealt with the property over time and reflected the state of the revenue records. The earliest document on the record appeared to be an agreement dated 28 September 1861, which was incorporated as paragraph 18 of the Wajib-ul-arz of village Manota. That paragraph stated that the tenure of the village was zamindari, that Dalmir was entitled to the profit and liable for the loss arising from the entire village, and that the other biswadars were owners of the produce of the land that they cultivated but paid no revenue, which was described as the benefit they enjoyed. The agreement was signed as a token of verification by Dalmir Lamberdar, Dilmor, Alif Khan Biswadar and Phusa Biswadar, all of whom were described as proprietors; Phusa was identified as an alias of Chhinga. A report of Mr John Lawrence, who later became Lord Lawrence and who was the Settlement Officer referred to in the Gazetteer, indicated that the arrangement then in vogue was that a few owners shared the profit and loss of the land revenue while the others were exempted from responsibility, and that Manota was one of the few villages that continued to follow this system.

The Court further noted that paragraph 2 of the Wajib-ul-arz dealt with the mode of partition. After stating that the area of the village measured 837 Bighas and 9 Biswas, the paragraph provided that when the co-sharers desired a partition, they would carry it out by mutual agreement in accordance with their shares as shown in the Khewat papers or through the village Patwari, and that the partition would be conducted in the presence of the Panchayat of the brotherhood. The paragraph also required that any new abadi, meaning the cultivation of new land, could be made only with the consent of all of the biswadars, and that a single biswar was not competent to make a new abadi on his own. This provision underscored the collective nature of decisions relating to the division of the village land and the necessity of obtaining the agreement of every biswar before any new cultivation could be initiated.

In the records the Court examined a statement that displayed the division of Jama, that is, the Khewat money, among the villagers. The statement first declared that the settlement of the village had been made in the name of Dalmir as the sole owner and that he alone was to receive the profit of the land and also bear any loss. The same document then continued to specify that Alif Khan, the son of Amir, Phusa, the son of Chhinga, and Dilmor, having cultivated a certain portion of the land, became owners of the produce from that land without having to pay any rent, and that they too were entitled to share in the profit and to be liable for any loss arising from the cultivation. Paragraph ten of the Wajib-ul-arz contained an agreement concerning trees. It clarified that trees standing in the house or field of an owner belonged to that owner, and that the owner had the authority to plant new trees or to cut existing ones. Regarding occupancy tenants, the agreement stated that the trees standing in their houses also belonged to them because they cultivated the land, but it reserved the exclusive right to cut or sell those trees to Dalmir alone. The Court noted that these items constituted all of the material documents relating to the settlement record of the year 1863. The Court then turned to the settlement record of 1877, highlighting page seventeen as an important document. Paragraph I of that page dealt with the history of the village and was reproduced in full. It recounted that, fifty-two years earlier in Sambat 1880, Dalmir, who belonged to the Meo caste and the Sogan got, together with his real brothers Dilmor and Chhinga, took possession of the village area with the permission of Nawab Ahmed Bakhshi Khan Sahib, the Rais of Ferozepore. The Nawab granted Dalmir a biswadari estate without any nazrana in consideration of the services rendered by him and transformed the desolate tract into a habitable settlement. Dalmir and his brothers remained in joint possession, sharing both profit and loss. After them Amir Khan became an abad in the village and, together with the other proprietors, remained in possession; consequently the proprietors recorded his name as a biswadar at the time of the revised settlement. Later, Sharif Khan, son of Ghariba and also a collateral, arrived in Sambat 1916, remained in joint possession with the proprietors, and had his name entered alongside the others on 14 September 1863. The document affirmed that the village had never been partitioned and that the shares were reflected in the Khewat papers. The Court observed that, although the document mentioned Dalmir as the sole grantee because of the services he rendered to the Nawab, it also showed that his two brothers were in joint possession with him. Moreover, the document demonstrated that Amir Khan and Sharif Khan, both collaterals, also possessed the village jointly. All these persons were described as proprietors, and their names were entered as joint owners. The Court found the authenticity of this document beyond doubt and concluded that it undermined the theory that Dalmir alone owned the village. While Dalmir was indeed described as the sole owner in document D. 4, the grant had been treated by Dalmir himself as joint property with his two brothers.

In examining the status of the two collaterals, the Court considered whether the village was originally intended to benefit the family in its broadest sense. Paragraph 5 of the Wajib-ul-arz, which deals with the tenure of the village and the method of revenue payment, expressly describes the village as bilijmal, meaning joint, and mandates that the sons of Dalmir continue to remit Government revenue not only for their own portions but also for the portions belonging to the sons of his two brothers and for the portions belonging to the collaterals. The document explains that no money is demanded from these co-sharers because of their familial relationship, a point noted on page 15 of the record. This declaration aligns solely with a conception of joint ownership. Likewise, Paragraph 7 of the same Wajib-ul-arz characterises the tenure as Zamindari bilijmal and repeats the observation that the other co-sharers of Dalmir are exempt from paying rent or Jama for the land they cultivate, again on the basis of relationship. It further provides that no individual co-sharer may reclaim any Banjar area without the consent of all proprietors, a stipulation recorded on page 19. The authenticity of the Wajib-ul-arz is reinforced by signatures of the proprietors, tenants, Bhandadars—village servants allotted cultivation rent-free—Kamins, and other inhabitants, and it is acknowledged to be signed by the ancestors of the parties, as shown on page 22. The Khewat and the Khatauni, prepared during the Settlement and cited on page 31, each list the five branches of the family as holding an equal one-fifth share. A comparable entry appears in the Khatauni referred to as D. 18. During the period of that Settlement, two partition suits were filed in the Revenue Court, yet the court declined to order a partition, as noted on page 5. Turning to the Settlement of 1903-08, clause 3 of the Wajib-ul-arz (document D. 13) states that only the descendants of Dalmir could obtain a partition of the land into five equal shares, whereas the descendants of the other four co-sharers, who cultivated land without rendering revenue due to the absence of accounting for profit and loss on their respective shares, were barred from partition. Finally, the Jamabandi of 1937-38 (page 1) records that all five branches were entered as possessing equal shares. Mehrab, a grandson of Dalmir and one of the plaintiffs, gave testimony labeled PW 5 and acknowledged that defendants numbered 1 to 16 were shown as proprietors in the Jamabandi, and he raised no objection to that listing. He also admitted that Mehar Singh, a grandson of Sharif Khan, had sold his half share to Chhote Khan and Bhola, the other plaintiffs, and that this transaction was not contested. The Court then referred to the civil litigation that began in 1891, which originated from the Assistant Collector’s rejection on 24 September 1890 of partition applications filed by Alif Khan and Sharif Khan. Alif Khan subsequently sued the descendants of the three brothers and the descendants of Sharif Khan, leading to the series of proceedings described.

In the pleading marked D 1, the plaintiff identified as Khan sought a formal declaration that he was entitled to one-fifth of the whole village estate. The sons of Dalmir opposed this request and, in their written statement referred to as B 2, contended that earlier proceedings had already rejected the plaintiffs’ claim to a partition. They further asserted that the defendants had been in adverse possession of the land and that the plaintiffs together with other persons had been cultivating the land in the capacity of Bhandadars, that is, village servants. The Subordinate Judge issued a decree granting the plaintiff’s claim, as recorded in document D 3. This decree was subsequently affirmed by the Divisional Judge, although the text of that judgment was not entered into the record. On a second appeal, the Chief Court modified the decree by stating that the plaintiff could enjoy a one-fifth share in the village, but only subject to the qualifications and restrictions enumerated in the Khewat and the Wajib-ul-arz, which at that time barred the grant of a partition while the prevailing Wajib-ul-arz remained in force. The Court’s alteration relied on admissions made by the defendants during oral arguments. A specific point of contention concerned paragraph 8 of the Wajib-ul-arz of 1877, reproduced in document D 12 at page 16, which the parties interpreted differently. The Chief Court held that the effect of that paragraph was to prohibit a general division among all co-sharers so long as the Wajib-ul-arz was operative. Accordingly, the Court concluded that only the five sons of Dalmir were permitted to separate their respective shares among themselves, whereas the remaining co-sharers could not do so. The Court expressed the view that this inter-partes judgment finally resolved the dispute between the parties by declaring that they were joint owners holding equal shares, and that the decision therefore operated as res judicata. The Court further observed that the judgment was consistent with the true effect of the documentary evidence placed on file. It was acknowledged that Dalmir’s name appeared in certain documents as the sole owner; however, the Court stated that such an entry alone was not conclusive and must be read together with the other entries recorded in the settlement book. While Dalmir may have been the original grantee, his subsequent conduct indicated that he did not consider himself an absolute owner excluding his brothers. Indeed, the entries show that he treated his collateral relatives as equals, rendering the description of him as sole owner without substance in the present circumstances. Regardless of the position at the time of the original grant, the later behaviour of the parties unmistakably demonstrated that all five branches were treated as owners of equal shares. Dalmir, in his role as lamberdar, was made responsible for the payment of the entire land revenue; he was entitled to share in the profit and also bore responsibility for any loss. The other co-sharers received smaller portions of land and were exempted from rent or revenue payments because of their familial relationship. This pattern of arrangement was reported to have been fairly common in that period, as illustrated by the observations of Mr (later Lord) Lawrence, the Settlement Officer, cited earlier. The scheme involved a few owners sharing the profit and loss arising from the land-revenue assessment, while the remaining co-sharers were exempted. The Government’s principal concern was the collection of revenue, and it found it convenient to entrust the head or most influential family member with the duty of paying the whole revenue and allowing him to make appropriate arrangements among his co-sharers.

In the early settlement arrangements the Government found it most convenient to place the responsibility for paying the entire land revenue on the head or the most influential member of the family, leaving that person free to allocate the burden among his co-sharers as he deemed appropriate. Over time, however, owners who accepted this responsibility discovered that it was not profitable, and the practice gradually fell out of use. Lord Lawrence noted that by the third settlement the number of villages still observing the system had dwindled to three, one of which was Manota in Ferozepore Tehsil (see page 179). This decline explains why Dalmir was described as the sole owner and tasked with paying the Government revenue. Section 44 of the Punjab Land Revenue Act provides that any entry made in the record of rights or in an annual record shall be deemed true until it is disproved. It is undisputed that entries in the Jamabandi are covered by the definition of “record of rights” under section 31 of the same Act. Similarly, section 16 of the old Act (XXIII of 1871) stipulated that entries in the record of rights made or authenticated at a regular settlement are to be taken as true. The Court is satisfied that, when all material on record is considered together, the High Court’s conclusion that the defendants are joint owners—rather than mere cultivators without a right to claim partition—is justified. The earlier ruling of the Chief Court also acknowledged the defendants’ proprietary rights but qualified that acknowledgment by stating that, so long as the settlement remained in force, the defendants could not seek partition because of the agreement recorded in the settlement documents. The settlements of 1877 and 1908-09 have ceased to operate, and the entry made in the later settlement of 1938-39, which was effected under the Collector’s order, lacks effect because the defendants did not consent to its incorporation. The prior agreement was limited in duration and never intended to be perpetual; consequently, there is no legal basis for enforcing a prohibition on partition against the defendants at this stage. Jurisprudence consistently holds that an agreement entered in a Wajib-ul-arz remains valid only for the period of the settlement in which it was made and becomes inoperative when that settlement ends, as explained in Hira and others v. Muhamadi and others, Allah Bakhsh and others, Mirza Bashir-Uddin and others, and Lieut. Chaudhri Chattar Singh v. Mt. Shugni and another. Accordingly, the Court agrees with the High Court that partition is a right incidental to ownership of property; once the defendants are recognized as co-owners, their right to partition cannot be lawfully denied. The appellants, represented by counsel, had argued that they acquired title by adverse possession over the defendants’ share for …

In the pleadings filed by the plaintiff, the parties claimed that the appellants had obtained title to the disputed share by way of adverse possession for a period exceeding fifty-six years. The same allegation was expressly set out in the plaint, yet the record shows that the claim was not pursued further before the trial court. This lack of prosecution is evident from the fact that no issue was framed on that point and no finding was recorded by the trial court on the matter. The court record contains citations to authorities such as (1)16 P.R. 1915 (P. 89), (2)1932 LIT.Rn. 56 and (3) A.I.R. 194 Lah. 239. These citations were noted but no authority was applied because the issue was never brought before the trial court for adjudication. Moreover, the appeal presented to the present Court does not incorporate the adverse-possession plea among its grounds of challenge, indicating that the parties themselves did not consider the issue material for appellate review. The High Court, having examined the factual background, concluded that the possession asserted by the appellants existed under an agreement among the co-sharers, and therefore the legal requirements for establishing adverse possession could not be satisfied under the circumstances. The High Court therefore rejected the adverse-possession plea as untenable. On review, the present Court finds that the adverse-possession allegation lacks any substantive foundation, and that the High Court’s reasoning is sound. Consequently, the appeal is dismissed with an order that the appellant pay the costs of the proceedings.