Background for writing the critique:
We know that there is no specific statutory law respecting suits for partition. Except various statutes relating to joint ownership and joint possession, e.g. sec. 144 of T.P. Act, Art. 144 of Limitation Act, etc. the main source of it is the judicial verdicts of the superior courts. I beg pardon to mention that few days ago, in October, 2013, I have published a book on the subject of partition suits namely “Laws on Partition Suits” and thereby I had had a considerable study on this topic. Upon such study we have observed that for lack uniting all the laws relating to partition suits together and for lack of exhaustive books containing all the points involved there are some diverging decisions on this subject. First of all, I humbly solicit apology to all concerns to dare writing a critique of this nature as well as for the errors in my thinking herein. Whatsoever, I am persistent in writing this analytical dissertation from a passionate of protecting the rights and interests of the persons to whom good title has been accrued either by purchase and/or and sometimes by record of rights from the clasp of so called partition suits. Mentionable that there may be divergent decisions but in this essay we have relied upon only those which are in consonance with the statutes.
Commencement of the article:
In our country, well-known to all, almost all the partition suits are filed upon averments that the plaintiffs’ predecessors so and so were owners of the suit jote lands as being C.S. recorded tenants and thereafter the plaintiffs being successors-in-interest of the said C.S. tenants have acquired title in suit lands in such and such shares by such and such way. But in the plaint they do not state whether the latter S.A. record as well as the present BRS record has been recorded in their or their predecessors’ names. In the schedule to the plaint they mention only the C.S. Khtian and plot numbers; they do no mention the present plot and khatian numbers there.
In this respect our analytical observation is that a plaint upon above said statements, without clarifying their ownership in the last record of rights and without mentioning the present plot and khatian numbers in the schedule the plaint, a suit for partition cannot be maintainable at all for various justifications.
We may discuss some of those barring provisions herein below in point wise:
1.Joint Ownership in suit properties must be relating to the last record-of-rights:
No doubt partition means dividing joint properties; therefore, for seeking partition the plaintiff must have first show that he is a co-owner in the joint property. We also know that as per land law of the Land, i.e. secs. 81, 82(8) and 144A of SAT Act, the person who is ‘malik’ (recorded tenant) in the last record-of-rights, only he is the owner of said recorded lands until or unless it is proved to be incorrect. In this regard judicial pronouncements are that “As per sec. 144A of the SAT Act last record-of-rights is the evidence of title until it is proved to be incorrect by a court of law in a properly framed suit. Reliance in this respect may be referred to judicial pronouncements:- The record of rights has presumption of correctness till it is rebutted”, 50 DLR 186, 9 MLR (AD) 82, 8 BLD 497, 17 BLC (AD) 174.
Therefore, it can be safely said that the last record-of-rights is the sole document/certificate of ownership. In such circumstances, it is our study that, in every suit for partition the plaintiff shall have to show that he is recorded owner in the last record-of-rights; or if it is found that due to wrong his name has not been recorded in the last (present) khatian then he must establish his title first by seeking a declaration of title to the suit lands in respect of the present record-of-rights; otherwise, he shall not be an owner of the suit lands at all and in that case his suit must fail for want of establishing right and title.
Therefore, if a plaint of partition suit does contain only the C.S. and S.A. khatian and it cannot relate plaintiff’s title in relation to the present record, title of the plaintiff cannot be established and suit cannot be decreed at all; but we witness that lots of partition suits are being decreed upon only the C.S. or S.A. khatian without mentioning the present BRS (BS) record-of-rights.
2.Community of interests:
In this respect the judicial outlook may be referred to here that – For a partition suit the parties must have community of interests and need not have a legal right in respect of the property, 32 DLR (AD) 24. When there is no community of interest among the plaintiff and the contesting defendants in the disputed land, a suit for partition cannot be decreed, 47 DLR 403. From these judgments it is also construed that if the contesting parties are claiming their title to the suit lands from the same heading of title, i.e. from same or common predecessors-in-interest, only then it can be said that the parties have community of interest in the suit properties; but if the root of adverse party’s title is disputed by any party and thereby there arose a complicated question of title between the parties in logger-head then suits for partition is obsolete, then suit for establishment of title is required.
3.Non-specification of suit lands:
The schedules the plaints upon above said averments state only the Khatian and plot numbers of the C.S. record or at best the S.A. record; the present BRS (BS) plot numbers and Khatian numbers are absent in those plaints; though at present another record of rights has already been published. Therefore, if the suit upon such plaint be decreed, the decree shall be drawn up upon Khatian and plot numbers of the CS and SA records. But as per sec. 144A of the SAT Act the latest BRS Khatians and plots are correct and at present the lands shall be dealt with and shall be divided into divisions only according to the present (BRS) record. Moreover, the lands shall be be mutated and sub-divided in the khatians as per present BRS record u/s. 143 & 117 of SAT Act and if this suit be decreed upon this schedule of lands of former khatians and plots; the decree would be of no avail for doing correction of the record-of-rights and for payment of rents. As such it is apparent that in respect of BRS record the suit lands are vague and unknown to the record-of-rights and therefore, the suit is hit by Or. 7 r. 3 of CPC too. For the same reason, even if such suit is decreed, in that case for the purpose of mutation the plaintiffs shall have to go for another suit by mentioning the plot numbers of present record-of-rights, which would lead to multiplicity of suits and as such this suit is hit by Or. 2 r. 1 of CPC too. In such situation a decree for simple partition cannot be passed by a court of law which would be infructuous to be complied.
4.Non-impleading the necessary parties:
We also know that in partition suit the present recorded tenants are compulsorily necessary parties and only for the absence of this class of necessary parties a partition suit shall be dismissed, ref. 40 DLR 532, 7MLR 406, 6 BLD (AD) 109, 37 DLR (AD) 216. Moreover, even if a suit without impleading the present recorded tenant be decreed, the said decree must be set aside if any of the present recorded tenants file another suit for setting aside of the same or for declaration of the decree to be void, 16 MLR (AD) 12 para 5, 2 BLT 137, 22 BLD 606. Moreso, – “No court should pass a decree which is infructuous and can be set at naught at the will of a person who has not been made a party to the suit”, 26 DLR 363, 25 CWN 249, 31 DLR (AD) 218, 27 DLR 451. In cases, when suits are filed stating only about C.S. record without stating the latest record, it cannot be determined that whether the present recorded tenants have been impleaded in the suit or not. Therefore, the suit under such statements shall be dismissed for non-joinder of necessary parties too.
5.Non consideration of related laws as to maintainability of suits; i.e. ‘as very complicated question of title involves, the suit in the form of simple partition without establishment of title by prayer for declaration of title is not maintainable at all’:
If the latest record has not published in the names of the plaintiffs, but in the names of third parties, the suit for simple partition without declaration of title is not maintainable for various reasons; such as –
When in present BRS Khatian the plaintiffs’ or their predecessors’ names are total absent or though their names be present but the share in the khatian does not fully conform to their share in the suit lands, then, as per provisions of sec. 144A of SAT Act, it can obviously be said that, the plaintiffs’ title to the suit lands has been clouded by such record and such situation reveals a complicated question of title too between the parties; therefore, suit for simple partition without prayer for declaration of title first by paying ad-velorm court fees cannot be maintained at all. Ref. 17 BLD (AD) 179, 13 BLD 621, 23 BLD (AD) 68, 13 BLD 621, 24 BCR 163.
Another reason for compulsory declaration of title is that we have already seen above that as per section 144A of SAT Act the last record-of-rights is the evidence and sole document of ownership. Therefore, if last record is not in plaintiff’s favour, he is not owner of that properties unless the record be corrected in his name and hence he cannot seek partition as being joint owner without correcting the record in his name. However, we know that a record of rights finally published u/s. 144 of the Act can be corrected only by two ways: (i) By a decree for correction of the record by the Land Survey Tribunal u/s. 145A of the SAT Act; or (ii) by a decree for declaration of title by a civil court as mandated u/s. 54 of the said Act as well as settled by several pronouncements e.g., 62 DLR 31, 17 BLC 216, 44 DLR (AD) 291. If record is wrong, the same cannot be made right by a decree for partition simpliciter without a declaration of title or declaration of possession u/s. 54 of SAT Act; also mentionable that or there is no other provision in other provisions of land law of the Land to mutate/correct the last record by such a decree for partition simpliciter. It may be argued that as per provision of sec. 143B of the said Act such a finally published Khatian may be corrected even by a decree for simple partition; but we have to clarify here that under this sec. 143B if a finally published record is correct then it only can be sub-divided, i.e. under this sec. 143B of the SAT Act only mutation khatian can be opened by a decree for simple partition treating the Khatian to be correct; but when the khatian is wrong it cannot be corrected under this section either by a partition deed or simple partition decree. As such if the last record is not in plaintiff’s name but he got a decree for partition simpliciter, he shall have to file another suit for declaration of title for correction of the record which would be barred u/o. 2 r. 2 read with sec. 12 of CPC and for the same reason the present suit for simple partition would lead the parties to multiplicity of suits and as such this suit also be barred u/o. 2 r. 1 CPC to prevent abuse of the process of courts. Ref. 1 BLC 276, 34 DLR 418.
6.Though the suit is barred by limitation, but this issue is hopelessly ignored:
There is a mis-conception in our country that a suit for partition be never barred by limitation. This conception, should not be considered as a whole; rather it should be regarded in the manner that as long as the plaintiffs are ejmali possessors in the suit lands with the defendants, the partition suit is not barred by limitation, but when the plaintiffs are excluded from joint possession of the suit lands and the same position continues for more than statutory period of 12 years, the suit shall be barred by limitation as mandate u/Art. 144 read with sec. 28 of the Limitation Act. Moreover, when plaintiffs’ title was clouded by wrong record in S.A. record long 50/60 years ago and by such wrong record the plaintiffs had been excluded from joint possession of the suit jote lands, the suit is also barred by limitation for not coming to the court for declaration of their title within 6 years from such publication. In support in this view we may refer to few judicial pronouncements: “Title of co-sharer never extinguishes by adverse possession in possession of another co-sharer, when a co-sharer declares his title adverse to other co-sharers in their knowledge, title of said other co-sharer extinguishes by adverse possession in possession of another co-sharer”, 7 BLD (AD) 38, 16 MLR (AD) 216, 61 DLR 429, 6 ADC 74, 14 MLR (AD) 11, 44 DLR (AD) 147, 44 DLR (AD) 100, 4 BLT (AD) 224, 3 XP (AD) 1.
A co-sharer in sole possession transfers land in his possession to a stranger and the latter possesses the land in exclusion of other co-sharers in denial of their title for more than 12 years – by such ouster of the co-sharers the stranger purchasers acquires title by adverse possession, 45 DLR 541, AIR 1960 Ker 27, ILR (1959) Ker 875, 10 BLT 339, 15 DLR 628. It was also held that adverse possession may be acquired by record of rights. The papers show that the defendant has been in possession of the suit land more than 60 years ago without any disturbance and the RS khatian also prepared in the name of defendant which creates a claim of right of adverse possession, 14 BLC 204, 4 BLT (AD) 224, 3 XP (AD) 1, 4 BLT (AD) 224, 3 XP (AD) 1. But sometimes we pathetically notice that the courts give decrees of the partition suits without taking into consideration of the issue at all.
7.As to ‘burden of proof’:
We also observe that in partition suits claiming title only from C.S. record, onus is always imposed upon the defendants to prove that how they have acquired title to the suit lands and on which basis the latter records have been published in their names.
In respect of ‘onus of proof’ we may give our study as follows:
Firstly, we know the most popular and well settled proposition of law that in order to succeed in the suit and to obtain a decree plaintiff must establish his own case and weakness of defendant’s case is no ground for passing a decree in favour of the plaintiff,” 39 DLR (AD) 237, 27 BLD (AD) 118, 1 BLD (AD) 371, 6 MLR (AD) 151, 30 DLR (SC) 41.
Secondly, as per sec. 110 of Evidence Act his onus to prove the plaint case is much heavier upon the plaintiff when the plaintiff is out of possession and the defendant is in possession in the suit lands. This sec. 110 embodies the well known principle of Roman Law that possession is prima facie proof of ownership and, when therefore, a person is in possession of a property the presumption of ownership is highly in his favour and the onus of proving that he is not the owner is on the person who asserts that he is not the owner”, 15 BLD 509, 7 BLT 164, AIR 1972 (SC) 2299, 36 DLR 285.
Thirdly, we have seen above that presumption as to correctness of C.S. record only at the period when it was made, and by publication of latter record such presumption was lost.
Fourthly, we have also seen that mere latest record of rights is also evidence of title if contrary cannot be proved; burden to prove that the same is wrong is always upon the person who claims it to be false, 17 BLC (AD) 174, 9 MLR (AD) 82, 3 BLT (AD) 342, 32 DLR 252, 5 MLR (AD) 329, 4 MLR (AD) 361.
Therefore, under the above mentioned four points, we cannot impose the burden upon the defendants who are in possession of the suit lands for long time and are also recorded owners of the suit jote lands in the S.A. as well as BRS Khatians to prove as to that how they got the same and how they got it recorded in the S.A. and BRS Khatians; rather we strongly opine that the plaintiffs, who rely only upon the C.S. Khatian must prove that their predecessors being C.S. tenants had been possessing the suit jote lands all along uninterruptedly and by paying rents to the land lords regularly and thereafter to the Governments and their right of tenancy had never been abolished/lost under the provisions of laws, either for rent sale or for oral Istafa of the tenancy etc., and the plaintiffs have inherited title as well as possession from them peacefully and the present Khatian has not published in their names only due to wrong, and when the plaintiffs will fail to prove such case to the hilt, the suit must fail. This view of ours finds support from the judicial pronouncements as well such as, 49 DLR 72 para 8, 1 BLC 102.
It is also pertinent to mention that most of the time the CS tenants or their successors surrendered the tenancy orally in favour of the upper landlord or the tenancy were sold in auction for non-payment of rents and the landlord or any third party purchased the same and then the landlord resettled the same either in parts or in full to other persons either vide registered pattannama or by taking kabuliyats or even by unregistered pattannama and thereafter those latter settlement-holders transferred the same to various persons vide registered deeds and in the latter settlement operations they got their names recorded. In such situations the present recorded owners have no opportunity to prove how the original C.S. tenants lost their tenancy rights and how the landlord or other auction purchasers purchased the same; because those papers would be rested with those landlords/auction purchasers and they were not supposed to deliver the same to the latter settlement-holders. But we watch with shock that if the defendants fail to prove the auction purchase or any sale from original tenants then the C.S. tenants’ remote heirs get decrees in partition suits in respect of C.S. tenancy.
8.Over presumptive value is given upon the C.S. records though CS record lost its weight by passage of time and at publication of latter SA record:
In determining the controversial issues upon disputes of title, sometimes a very high presumptive value about C.S. record is given and the latter record-of-rights is taken in no consideration.
Sec. 103B of the Bengal Tenancy Act gave presumptive value to the C.S. record. But it also should bear in mind that “Though entry in C.S. khatian must be presumed to be correct only in point of time when it was published, but by passes of time the status of C.S. tenants may change”, 7 BLT (AD) 281, 17 DLR (SC) 392, 26 DLR 215, 6 BLC 241, 35 DLR 295. Moreover, the entries made in the CS record which was prepared from 1917 to 1922 cannot be expected to be the same in 2002 and to override the SA record-of-rights and revised record-of-rights, 61 DLR 18, 30 DLR (AD) 81 para 12. Moreso, in the event of conflict between old record and recent record, recent record of rights would prevail inasmuch as presumption of record of right loses its weight with the passage of time and entry in the subsequent khatian would be more acceptable than the entry in the earlier khatian, 6 BLC 241, 61 DLR 18, 38 CWN 268, 9 MLR (AD) 361.
We know that C.S. record was published under the erstwhile Bengal Tenancy Act, 1885 during 1888-1940, i.e. near about 100 years back and some where more than that. Meanwhile, the Bengal Tenancy Act itself had been repealed at the coming into force of the State Acquisition and Tenancy Act, 1950 in 1956. Thereafter, the S.A. record of rights was prepared and finally published under the said SAT Act. Though the said record was a summary survey and there were lots of wrongs in the said record, but, we may canvass that the S.A. record is the actual base of ownership of lands in the country, because under the provisions of the SAT Act the S.A recorded tenant is the actual owner of the recorded lands under the government and no other person without rebutting the said record can claim title over the said lands. In this regard, several judicial authoritative judgments have come holding that when there is no contrary document against the S.A. record of rights in S.A. then the sole recording in the S.A. record is the basis of title, ref. 5 MLR (AD) 329, 51 DLR 522 para 9, 19 BLD 122 para 2, 1 BLT 1 para 12, 17 BLT (AD) 300. Besides, in the meantime, another record of rights has been finally published u/s. 144 of the SAT Act, namely BS/BRS/RS Khatian. In regard of BRS record the legal presumption is that “As per section 144A of the SAT Act, a finally published record of record revised u/s. 144 of the Act has a presumption of correctness, this presumption continues of till be rebutted by reliable evidence”, 50 DLR 186, 17 BLC 198 para 16, 17 BLC (AD) 174.
Under such standing of the present law of the land, we can no more say that only the C.S. record is basis of title and no other records have any strength of title; rather, the person in whose name the latest record has been published shall have presumption of having title and any other person who alleges to rebut it, must prove the same by evidence. But we pathetically observe that these principles about acceptance of last record gets no consideration in partition suits; rather the adverse mis-conception, which has no support by any statute, as to only the CS record-of-rights has presumptive value and the latter records-of-rights have no such presumptive value, is still being considered even in 100 years later than its publication.
9.Non-consideration of the principle of ‘bonafide purchaser for value’:
Another point is that in these cases, sec. 41 of the Transfer of Properties Act is totally overlooked. In such cases, sometimes it is found that some persons purchase lands from S.A. and BRS recorded owners having seen their practical possession therein. In view of sec. 41 of T.P. Act these purchasers acquired good title thereto. But in disposal of such partition suits, these latter bonafide purchasers’ interest is not considered in any manner.
To conclude this treatise we may entreat that ‘partition means separating plaintiffs joint properties from joint possession with the defendants’. If partition be allowed in the cases as we have discussed herein above, then not the properties of the plaintiffs but properties of some other persons shall be given to the plaintiffs and by this way some persons, whose predecessors lost their title in the suit properties long back, would get the same and thereby some persons who acquired good title in the suit properties vide successive title deeds and/or record-of-rights as well as continuous possession for more than statutory period of 12 years would be deprived from their right to such properties.