Chhote Khan V. Mal Khan & Ors
 INSC 49 (21 April 1954)
HASAN, GHULAM DAS, SUDHI RANJAN
CITATION: 1954 AIR 575 1955 SCR 60
Wajib-ul-arz-Entry regarding agreement
therein-Whether holds good after the expiry of period of Settlement.
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.
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
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
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 document is beyond question.
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
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
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
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
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
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.