Section 2 in The Partition Act, 1893
2. Power to court to order sale instead of division in partition suits.—Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
The word ‘Title’ includes a right, but is the more general word. Every right is a title though every title is not such a right for which an action lies. Blackstone defines it to be “The means whereby the owner of lands has the just possession of his property.””TITLE” is the means whereby a person’s right to property is established. (See: P.Ramanatha Aiyar’s the Law Lexicon – 1997 Edition).
Section 13 of the Indian Evidence Act, 1872 provides the mode and proof of title. It states that where the question is as to the existence of any right or custom, following facts are relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
Transactions by a party dealing with the property to which he lays a claim, are important evidence of his title and sometimes they constitute the only evidence available.
The Supreme Court in Choote Khan V. Mal Khan [1954 AIR 575, 1955 SCR 60] while considering the nature of the entries in Jamabandi and as to whether such entries fall within the purview of Record of Rights maintained under Section 31 of the Punjab Land Revenue Act, 1887 observed that “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 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.”
In Kasturchand V. Harbilash [Kasturchand And Anr vs Harbilash And Ors on 14 September, 2000-Appeal (civil) 5392 of 1990] the Supreme Court found fault with the courts below as well as the High Court for their not having placed any reliance on the entries in the khasra prepared and maintained under the provisions of the Madhya Bharat Land Revenue and Tenancy Act of 1950 and held:
“The entries in the annual village papers create a presumption albeit rebuttable in favour of a person whose name is recorded.We find that a procedure is prescribed to challenge the entries made in the annual village papers. The procedure is contained in the Madhya Bharat Land Revenue and Tenancy Act of 1950 (for short “the Land Revenue Act”). Section 45 of that Land Revenue Act specifies that khasra, jamabandi or khatauni and such other village papers as the Government may from time to time prescribe shall be annual village papers.Section 46 enjoins preparation of annual village papers each year for each village of a district in accordance with rules made under the Act. Section 52 embodies the presumption that all entries made under that chapter in the annual village papers shall be presumed to be correct until the contrary is proved and Section 50 prescribes the method or procedure for correction of wrong entries in the annual village papers by superior officers. Thus it is clear that in the event of wrong entries in the annual village papers the same is liable to be corrected under Section 50 and unless they are so corrected the presumption under Section 52 will govern the position.”
Record of Rights carry with them a very great evidentiary value
A careful analysis of the decisions referred to hereinabove of this Court as well as of the Apex Court would make it clear that the entries made in the Record of Rights carry with them a very great evidentiary value, provided the Record of Rights is prepared and maintained under the provisions of the relevant statutes or the Regulations, as the case may be, and further provided that the entries therein are made after holding public enquiries. Sometimes, they constitute the only evidence available in order to establish one’s title to the lands. The entries made shall be deemed to be the record of Rights prepared and maintained by a public servant in discharge of his official duties.Only such documents prepared after due notice and hearing of all the concerned shall be deemed to be made by a public servant in the discharge of his official duty within the meaning of Section 35 of the Indian Evidence Act.
Section 37 of the Punjab Land Revenue Act reads:
“Entries in records-of-rights or in annual records, except entries made in annual records by patwaris under clause (a) of section 35 with respect to undisputed acquisitions of interest referred to in that section, shall not be varied in. subsequent records otherwise than by-
(a) making entries in accordance with facts proved or admitted to have occurred;
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties;
Section 44 says that an entry made in a record-of-rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of that Chapter and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.
Section 123 of the Punjab Land Revenue Act, 1887 (hereinafter to be referred as “the Act”).
Reliance is placed upon Suba Singh v. Mohinder Singh and Ors., 1983 P.L.J. 429; Sushil Kumar v. National Insurance Co. Limited and Ors. (1986) 88 P.L.R. 458; and Darbara Singh and Anr. v. Gurdial Singh and Anr. 1994 P.L.J. 25. Before proceeding further, Section 123 of the Act is reproduced below:-
123. Affirmation of partition privately affected: (1) In any case in which a 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.
(2) On receiving the application, the Revenue Officer shall inquire into the case, and if he 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.
A perusal of the said provision would show that Section 123 of the Act is a provision for affirmation of partition privately affected. Chapter IX of the Act deals with both situations i.e., where intervention is sought of the revenue authority for partition of the land and for a situation where the parties effect partition privately. A further reading of Section 123 of the Act shows that liberty is given to any party who “may” apply to a revenue officer for an order confirming partition. Sub-section (2) contemplates an enquiry to find out whether the partition, in fact, has been made. If partition has been made, the revenue officer has to distribute the revenue and the rent after partition and draw the instrument of partition.
Hon’ble Supreme Court in Sankalchan Jaychandbhai Patel and Ors. v. Vithalbhai Jaychandbhai Patel and Ors. , has held that mutation entries are only to enable the State to collect revenue from the person in possession and enjoyment of the property and the right, title and interest as to the property shall be established de hors the entries. The entries arc one of the modes of proof of enjoyment of the property, mutation entries do not create any title or interest therein. Later, in Durga Das v. Collector and Ors. , Hon’ble Supreme Court held that title to the property should be on the basis of the title they acquired to the property and not by mutation entries. In Baleshwar Tewari (dead) by LRs and Ors. v. Sheo Jatan Tiwary and Ors. , Supreme Court observed to the following effect:-
…Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs as his dominion and generally obeys, with moral fibre the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills.
In view of the above binding precedents, it is apparent that the revenue record by itself neither create or extinguish title. Since co-owners by mutual consent have entered into separate portions of land and are in the enjoyment of their respect portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of the revenue officer in Section 123 of the Act is that of “affirmation” of partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of Sub-section (2) of Section 123 of the Act is restricted to the effect to point out that, in fact, partition has been made. Therefore, non affirmation of partition by the revenue officer will not render a private partition redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act.
It is open to any of the co-sharers to seek such affirmation who may apply to the revenue officer. There is no provision in the Act which entails any penal consequences of not recording such private partition in the revenue record. Thus, the affirmation of the revenue officer of the private partition in the revenue record is a directory provision. The purpose of such affirmation is only to determine the right of the State to recover land revenue and to keep its record update. Mere fact that such private partition has not been recorded in the revenue record will not render an act of the parties as totally redundant. It is well settled that entries in the revenue record do not determine, create or extinguish the title of any person. The revenue record is corroborative of the fact recorded in the revenue record as it is maintained in normal course of the affairs of the State and carries presumption of truth. But failure to seek affirmation of private partition, if otherwise proved on record, cannot be negated only for the reason that the same has not got the affirmation from the revenue authorities.
In Pritam Singh v. Jaskaur Singh 1992 P.L.J. 435, to contend that the joint status of the parties comes to an end only when the partition order has been passed and partition has not been effected in terms of instrument of partition.
Again in AIR 1995 SC 1728 (Digambar Adhar Patil v. Devram Giridhar Patil (died) and another) “The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.”
So, in a suit for partition, the plaintiff produced Land Records – Whether he needs to prove the same? -No is the consequence of above analysis.