P (PLP)

Allah Din and Muhammad Amin, for Appellants. Jamil Hussain Razvi, for Respondents: JUDGMENT.‑‑This is a defendants' first appeal against the Judgment and decree of the learned Sub‑Judge, 1st Class, Shakar garh, dated 20th of November 1946, by which the plaintiffs' suit for declaration was decreed. The dispute relates to 609 kanals of Shamilat land. The defendants made an application to the Revenue officer, for partition on 1st of June 1940. An objection was taken that the property had already been partitioned in 1909 and it could not again be partitioned. The learned Revenue Officer disallowed that objection. An appeal as preferred to the Collector who accepted it and held that the‑application for partition should be dismissed. The defendants preferred a further appeal to the Commissioner who, by his order, dated 2nd of October 1942, set aside the order of the Collector and restored that of the Revenue Assistant and directed that early partition in 1909 was never carried into effect and that fresh proceedings for partition could continue. This led to the suit for declaration, from which this appeal has arisen. It was alleged that on the application of Mangtu, father of defendants 1 and 2, and Kalu, father of defendant 5, the shamilat area was partitioned and the instrument of partition was also prepared, and that it was no longer open to the Revenue Officer to order a second partition of the property which was no longer joint. The defendants pleaded that the property was still joint and it was liable to partition. The trial Court, as already observed, decreed the suit and the defendants have now come up in appeal. It is common ground that the partition proceedings started on 17th of April 1909 and terminated on 25th of July 1910. Ex. P‑2 is the instrument of partition, dated 25th of July 1910. It was mentioned therein that the partition was to take effect from 20th of February 1909 and that each of the co‑sharers had become the sole owner of his share. It appears that no body took any step to get possession of the property allotted to him, with the result that the possession of the co‑sharers continued to remain as before. The virtual effect was that, in spite of the partition proceedings, the property was not actually divided by metes and bounds, and appro priated by individual co‑sharers. The question that requires determination is : whether the property which had already been ordered to be partitioned, could be partitioned again, simply because no action was taken by the co‑sharers in pursuance of the instrument of partition. The order of partition put an end to the jointness of the property and from that day onwards, each of the co‑sharers was to hold the property in severalty. Section 122 of the Punjab Land Revenue Act may be referred to in this connection. This is as follows :‑-- "An owner or tenant to whom any land or portion of a tenancy, as the case may be is allotted in proceedings for partition shall be entitled to possession thereof as against the other partition to the proceedings and their legal representatives, and a Revenue Officer shall on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last fore going section give effect to that instrument so far as it concerns the applicant as if it were a decree for immovable property". The joint character of the property was destroyed and each of the co‑sharers had become the separate owner of the portion of the property that fell to him. He could, within three years from the date recorded in the instrument of partition, apply to be put into possession of the property which was his, and could, if necessary, bring a suit for possession in the Civil Court within the further period of nine years. Where any person failed to take advantage of the partition proceedings or omitted to take into his exclusive possession his own share in the property, the possession of any other person would be considered adverse from the date from which he had acquired the title to the possession of the property. Where nothing further was done, it would not follow that the partition of the joint property never took place. The partition was a fact and it could not be obliterated by the negligence or carelessness of the co-sharers. An application for partition can, under section 111 of the Land Revenue Act, be made by any joint owner of land or any joint tenant of a tenancy. Where there is no joint land, no application for partition is competent. It has been shown above that partition proceedings, which started in 1906 and ended with the instrument of partition of 25th of July 1910, left the property, which was once joint, no longer joint, and there was, therefore, no joint property which could be partitioned by the Revenue Officer. A preliminary objection was raised‑that Bhullan son of Jiwan, one of the appellants, had died and his legal representatives were not brought upon the record within the period prescribed by law. It was argued for the respondents that the entire appeal had abated. In view of the finding in favour of the respondents on the merits of the case, it is not necessary to decide this preliminary point. For the reasons given move the decree of the trial Court is confirmed and this appeal is dismissed with costs. K.M.A/A.H Appeal dismissed.