21 April 1954
Supreme Court


Case number: Appeal (civil) 61 of 1951






DATE OF JUDGMENT: 21/04/1954


CITATION:  1954 AIR  575            1955 SCR   60

ACT:    Wajib-ul-arz-Entry  regarding  agreement  therein-Whether holds good after the expiry of period of Settlement.

HEADNOTE:     Held,  that an entry regarding agreement in a  Wajib-ul- arz  holds  good during the currency of the  Settlement  and does not survive the expiry of the period of Settlement.    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 (A.I.R. 1941 Lah  239)  referred to.

JUDGMENT:   CIVIL APPELLATE JURISDICTION: Civil Appeal No. 61 of 1951. Appeal from the Judgment and Decree dated the 10th November, 1944.,  of the High Court of Judicature at Lahore  in  Civil Regular  First  Appeal No. 259 of 1942, arising out  of  the Judgment and Decree dated the 29th July, 1942, of the  Court of  the  Extra Assistant Settlement  Officer  and  Assistant Collector of the 61 First Grade as Senior Sub-Judge, Gurgaon, in Suit No. 35  of 1940-41. Dr.  Bakshi Tek Chand, (Ram Nath Chadha and Ganpat Rai, with him) for the appellants. Naunit Lal for respondents Nos. 1, 3, 7 to 11 and 13 to 19. 1954.  April 21.  The Judgment of the Court was delivered by GHULAM HASAN J.-This appeal is brought against the  judgment and decree dated November 10, 1944, of the Lahore High Court (Sir  Trevor  Harries  C. J. and Mr.  Justice  Mahajan,  the present Chief Justice of this Court) reversing the  judgment and  decree  of  the  Assist,ant  Collector,  First   Grade, Gurgaon,  as  Senior Subordinate Judge, and  dismissing  the plaintiffs-appellants’ suit. Dalmir, Dilmor and Chhinga were three brothers and Amir Khan and Sharif Khan were the two collaterals.  Alif Khan was the son  of  Amir  Khan.  The present  dispute  is  between  the



descendants of the five branches of the family. The  suit was brought by the descendants of  Dalmir  against the  descendants  of Dilmor, Cbhinga, Alif Khan  and  Sharif Khan.   To this suit were also impleaded as defendants  some of  the  descendants of Dalmir.  The  plaintiffs  claimed  a declaration  that they along with defendants Nos. 17  to  19 are  full owners in possession of 819 Bighas 19 Biswas  land situate  in village Manota Tehsil Ferozepore Jhirka. in  the Gurgaon  District, that the defendants Nos.  I to 16 had  no right  to  claim partition of that land and that  they  were entitled only to the produce of land measuring 140 Bighas 19 Biswas  possessed by them without payment of  land  revenue. The aforesaid defendants, it was alleged, were bound by  the terms embodied in the agreement dated September II, 1861, in the   Wajib-ul-arz  of  that  Settlement  and  repeated   in subsequent  Settlements which debarred them from  any  right to. claim partition.  Defendants Nos.  I to 16, who are  the contesting   defendants,   pleaded  in  defence   that   the plaintiffs along with the pro-forma defendants Nos. 17 to 19 were recorded in revenue 62 papers  as  owners of 1/5th share in the  land  in  dispute, while  the contesting defendants were recorded as owners  of the remaining 4/5th share and as such they were entitled  to claim  partition.  The defendants denied that any  agreement or condition in the Wajib-ul-arz 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 their 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  revenue  and  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 subsequent Settlements was binding  on the  parties so long as the Settlements were in force,  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 contesting 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 contained in the Wajib-ul-arz  did not survive the expiry of the period of the Settlement,  was binding  upon them.  They took the view that the  contesting defendants  being. proprietors, the right of  partition  was inherent in their right of ownership.  As a result of  these findings the suit was dismissed. We  have  heard  Dr.  Tek Chand,  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 Gazetteer of  Gurgaon  District (1910)  the  Meos owned nearly the whole of  the  Ferozepore Tehsil  and  various other villages in  Gurgaon.   They  are divided  into  several  sub-tribes,  and  these   sub-tribes possess a strong feeling of unity and the                              63 power  of  corporate action.  It was stated that  "  in  the mutiny  the  members of each  sub-division  generally  acted together;   and  district  officers  are  advised  to   keep



themselves informed of the names and characters of the  men, who  from time to time possess considerable  influence  over their fellow-tribesmen." (P. 60). The documentary evidence regarding the title to the property in  dispute ranges over a period of four  Settlements,  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 (corresponding to 1839-1862 A.D.) which was  made payable by 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 Settlement  authorities from time to time and the  state  of the revenue records.  The earliest document on record  appe- ars  to be an agreement dated September 28, 186 1, 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 for loss in  respect of the entire village.  The other biswadars  are owners  of  the produce of the land cultivated by  them  but they  pay  no revenue.  This, it is stated, is  the  benefit they  enjoy  (P. 35 = D. II).  This document  is  signed  in token of verification by Dalmir Lamberdar, 64 Dilmor,  Alif  Khan Biswadar and Phusa  Biswadar,  who  ,ire described as proprietors.  Phusa, we are told, is the  alias of  Chhinga.  There is a report of Mr. John Lawrence  (later Lord  Lawrence),  Settlement  Officer  referred  to  in  the Gazetteer,  which says that the arrange ment then  in  vogue was that a 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 co-sharers 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 Patwari in the,presence of Panchayat  of the  brotherhood.  The new abadi (cultivation of  new  land) will  be  made with the consent of all the  biswadars.   One biswdar 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  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 Wajibul-arz contains an agreement  about trees.   It  shows that the trees standing in the  house  or field  of  the owner belong to him, and he is  competent  to plant  and  cut them.  So far as the occupancy  tenants  are concerned, the trees standing in their houses also belong to them as they cultivate -land but Dalmir alone had the  right to  cut or sell them.  These are all the material  documents pertaining to the Settlement record of 1863. We now come to the Settlement record of 1877,                              65 P.   17  is an important document.  Paragraph I which  deals with the history of the village is reproduced below:-’ "Fifty-two years ago in Sambat 1880, Dalmir, Caste Meo,  Got Sogan,  along  with Dilmor and Chhinga, his  real  brothers, took  possession  of  the area of  this  village,  with  the permission  of  Nawab  Ahmed Bakhshi 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 bore 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 proprietors.  Accordingly we got his  name  also  recorded  along  with  ours  on  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  in 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 documentisbeyondquestion.  It  out sat  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  couaterals 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 and the mode of payment of revenue 9 66 says that the village is bilijmal (joint) and that the  sons of  Dalmir shall continue to pay the Government  revenue  in respect  of  their own shares as well as the shares  of  the sons of his two brothers and the shares of the  collaterals. The reason given is that no money is taken from the said co- sharers on account of relationship. (P. 15).  This statement is consistent only with joint ownership. Paragraph 7 of the Wajib-ul-arz also describes the tenure as Zamindari bilijmal and Repeats the statement that the  other co-sharers of Dalmir do not pay any rent or Jama in  respect of  the  land  cultivated  by  them  on  account  of   their relationship.  No single sharer has the right to reclaim the Banjar  area without the consent of all the proprietors  (P. 19).   This  Wajib-ul-arz is verified  by  the  proprietors, tenants,  Bhandadars (a village servant to whom  cultivation is allotted rent free), Kamins (menials) and the inhabitants



of the village.  It is admittedly signed by the ancestors of the parties (P. 22). The  Khewat  and the Khatauni (P. 31)  prepared  during  the Settlement  both record the five branches of the  family  as being in possession of a 1/5th share each.  A similar  entry is to be found in the Khatauni (D. 18). It  appears that during the currency of this Settlement  two suits for partition were filed in the Revenue Court but  the partition was not allowed (P. 5). Coming  to the Settlement of 1903-08 we find a Statement  in clause 3 of the Wajib-ul-arz (D. 13) that the descendants of Dalmir  alone could get the land partitioned in  five  equal shares but the descendants of the other four co-sharers, who were, cultivating land without payment of revenue, owing  to non-rendition  of account in respect of profit and  loss  of their   respective   shares,  could  not   have   the   land partitioned. , Lastly  we  come to the Jamabandi of 1937-38 (P.  1).   This shows  that all the five branches were entered as  being  in possession of equal shares. Mehrab,  grandson of Dalmir and one of the  plaintiffs,  who gave evidence as P. W. 5 admitted that defendants 67 Nos.  I to 16 were shown as proprietors in the Jamabandi but he never raised any objection to it.  He also admitted  that Mehar Singh, grandson of Sharif Khan, sold his half share to Chhote  Khan and Bhola, his coplaintiffs and that  they  did not challenge the same. We  may now refer to the civil litigation which  started  in 1891.   It arose upon the rejection of the applications  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 claim.  In their written statement (B.  2) they alleged that in previous proceedings  they  had deniedthe  plaintiffs’  right  to  partition  and  that  the defendants  had been in adverse possession of the  land  and that the plaintiffs and others had been cultivating land  as Bhandadars   (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 in the Khewat 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 admission made by the defendants in the course  of the arguments.  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 division  among  the co-sharers while  the  Wajibul-arz  was still  in  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  judgment  which  is inter-partes  finally  set at rest the  controversy  between them by declaring that the parties were joint owners holding equal shares and constitutes res judicata.  The judgment  is also  in conformity with the true effect of the  documentary evidence on the 68 record.   No doubt the name of Dalmir was entered.  in  some



documents as the sole owner but that entry by itself is  not conclusive  and must be read in conjunction with  the  other entries in the Settlement record.  Dalmir may have been  the original  grantee but his own 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 have  been the position at the time of the  original  grant, the  subsequent  conduct of the parties  unmistakably  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 landrevenue.  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 land  revenue  assessment while   the  others  were  exempted.   The  Government   was primarily interested in the payment of the revenue and  they apparently found it more convenient to hold the head or  the most  influential  member of the family as  responsible  for payment of the entire revenue leaving it to him to make such arrangement  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 in 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  made in  the  record of rights or in an annual  record  shall  be presumed to be, true until the contrary 69 is proved.  That entries in the Jamabandies fall within  the purview of the record of rights under section 31 of the  Act admits  of no doubt.  Section, 16 of the old Act  (XXIII  of 1871) laid down that entries in the record of rights made or authenticated  at a regular Settlement shall be presumed  to be true.  We are satisfied 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 partition  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  Other8 (1); Allah Bakhsh and  Others.   Mirza



Bashir-uddin  and  Others (2) and Lieut.   Chaudhri  Chattar Singh v. Mt.  Shugni and Another (3). We agree with the High Court in holding that partition 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  appellants  had acquired  title by adverse possession over  the  defendants’ share  for more than 56 years.  This plea was raised in  the plaint but evidently it w as not pressed (1)16 P.R. 1915 (P. 89). (2)1932 LIT.Rn. 56. (3) A.I.R. 194 Lah. 239. 70 for  no  issue was framed, nor any finding recorded  by  the trial Court.  This point is not taken even in the grounds of appeal  to  this Court.  The plea has no substance  and  was rightly  rejected  by  the High Court  on  the  ground  that possession was under an arrangement between the  co-sharers. and no question of adverse possession could arise under  the circumstances. We hold that there is no force in this appeal and dismiss it with costs.                      Appeal dismissed.