PARTITIONS

439.  Cmmon land of village communities. It is an essential frature of the village community, at leasr in its original form, that the proprietary body should possess part of their loands in common. The village sites, the grazing lands over which the cattle wamdered and sometimes the wells from which the people drew their drinking water were held in joint ownership. Often each sub-division (taraf, patti, or paa) of the astate had also its own common land in addition to its share in the common land or shamilat of the whole community. This veature of communal village proprety was reproduced by our revenue offivers in those parts of the province in which the village systen was forcibly engrafted on a tenure of a very different chacter.

440.  Other joint holdings. But, besides the large joint holdings in which all the landowners in an estate or a sub-division of an estate have an interest. It constantly happens that maby of the other holdings are jointly owned by several sharehokders. According to indian ideas,land in north-western india, at least wherever real village communities exist, belongs rather to the family than to the individual. What may be called family bhalding were very common when our first records of rights were framed, the tendency of our legal and revenue system has been to substitute individual for communal holding. But holdings of the latter type are still numerous. And holding owned by individuals are constantly reverting to the cindition of joint holdings under the law of inheritance,which gives to each son,or,falling sins, to each male collateral in the name degree of relationship,an equal share in the land of a deceased proprietor. A joint holding is also created whenever a landowner sells or mortgages with possession a share of his holding,itstead of partocular fields included in it.

441.  Tendency to divide joint holdings. The increase of population and of the profits derived from agriculture leads in time to large portions of the common waste of the vo;;age pf patti being broken up by individual shareholders, with the result that in the end a demand arises for its partition. Family quarrels and the restraints and inconvenienceswhich spring frim common ownership conctantly make those who are interested in other joint holding enxious ot divide the land.

442.  Vesh. The custom of vesh,or the periodical redistrinution of village or tribal lands, which is an intersting feature of promiktive land owning renures both in the East and wist, is now nearly extinct in the punjab. But the land Revenue act provides for its enforciment shere the custom still prevails.

443.  Private partitions. Private partitions are frequently made, but there is always a risk that sime shareholders will become dissatisfied and allege that the division was only one for convenience of cultivation,and was not intended to be of a prrmanent character. Landowners therefore,especially when the area keld in common is largeand the share holders numetous, usually apply to the revenueauthorities tomake thepertition for them. A private partition may also by affirmed after due enquiry by as Assistant Collector of the 1^st grede on the application of any of the persons interested init. Although no formal application has been lodged, the patwari is bound to record voluntary partitioins for orders in the mutation register as soon as they have been acted on. In passing orders on such cases,care must be takennot bo treat as partitions of proprietary rightarrangements which the parties did not intend to ne permanent. Shareholders may be comtent for years to have in their cultivating possession less than their forr shere of a common holdingwithout inteningto give up any partof their right of ownership. Of any ofthem objects to the record of kthe alleged partition and the attestiong officer considers the objection valid, he shouldrefuse mutation of names and refer the party seeking it to proceedings under section123 of the land Revenue act. But ifhe finds that the objection is vexatious or frivolous, and that fair private partition has actually been carried out he should record the objection and his proposed lorder disallowing it, and other assistant collector of the 1^st grade authorized by the deputy commissionerto deal with these cases.

Commentry

No report made to patwari and no proceedings taken under the act for finalisatio of partirtion cannot be recognised.

444.  Complete and incomplete partitions. Partirions are of two kinds:complete and incomplete. Where a complete partition is made, there is a total severance if rights liabilities. They have always been looked on with much disfavour in the punjab, where they cannot be carriled out without the express consent of the financial commissioner( section 110(1)-cf. Paragraph 1 of  finan cial commissioner’s book circular no xlviii ov 1860 and paragraphs 1 and 2 of chapter  xiii of rules under act xxxiii of 1871). In complete partitionas do not affect the foint liability of the shareholders for the revenue of the divided holdings and still less do they operate to create new estates. The  former fact is not of much practical importance. The officer who makes the partitions is requied to distribute the revenue of the divided land over the new holding which have been created. If in the case of a complete partition a fraudulent or erroneour distrinution takes place, the local Government may, at any time within twelve years after the discovery of the mistake,order a fresh distribution. For this purpose the best estimate passible must be made of the assets of each astate at the time of its formation.

445.  Property which must, and property which may be excluded from partition. The village site unless in the very ratecase of its being assessed to land revenue cannot be partitioned by proceedings under the land revenue act. Even if it is assessed the assistantcollectormay refuse padrtition and thisdiscrtetionarypowermay properly be held to extend to the uncultivated land round a villagewhichos lused as standingground for cattle or occupied by enclosures for fodder and manure. Placeof worship and burial ground cannot be partitioned unless the parties record and file an agreement assenting to their division. Any embankmentwater-course,well or tand and the land by the drainage of which a tank is filledand any grazing land may be exclided from partition. In arid tracts where the people depend on tanks for their own drinking water and for the wateringof their cattle it may be a matter of importance to keep the waste ateawhich feeds a tank free from dultivation though the land hunger is now so great tha that maby of the ownersmay clamour to have it divided. If any of thejoint owners afterwards encroadches on the reserved land he may be ejected fromit on the application of any other co-shares. It deciding whther to use the discretion given by section 112 (2) of the act, one must think not only of the wishes and interests of the land owners, but also of the likelihood of the partition causing inconvenience to other residentants of the village, as of example, the menials who have been accustomed to use the common property. When any of it is excluded from partition, the assistant collecter may determine the extent and manner to and in which the co-shares andother persons interested therein may make use thereof, and the proporation in which expenditure incurred thereon, and profits derived therefrom, respectively, are to be borne by, and divided among those or any of them.(section 119)

446.  Holdings of occupancy tenants. A discretion is also left to revenue officers as regards holdings of occupancy tenants. if tenants who have a joint right of occupancy in a holding wish to partiton, it any objection that the landlord may urge must be carefully considered, and, it is a reasonable one, partition may be absoulately,disallowed(section 112(4) ) even when such a tenancy is divied, the former co-shares do not except with the express consent of the landlord, cease to be jointly liable for the rent of the original holding(section 110(2) ) again an occupancy tenant may well be unwilling to see his holding spilt up among three or four ;andlords, to each of whom he must pay a sepreate rent. The law therefore provides that such a severance of tenancy may be sufficien treason for disallowing a cliam on the part of landowners for partition, so far as ot wpould affect the holding of the tenant, unless the latter gives his assent to the proposlas.

447.  Who may apply for aprition - Any joint owner andy any joint tenant who has a right of occupancy in his holding nay apply for partition if-

(a)  his share entered in the last jamabandi, or
(b)  his right to a share has been established by decree or court, or
(c)  his title has been admitted  in writing by all persons interested in the admission or denial therof.(section iii see also financila commissioner’s standinmg order no. 27)

the mere fact that a man is a landowner as defilned in section 3(2) of the land revenue act does not entitle him to apply unless he fulfills one or other of the above three conditions(the circumstances under which a mortage in possession can claim partition of a jointholding are dilscused in revenue judgement no. 4 of 1903.)

the mere fact thea a man is a landowner as defined in section 3(2) of the land revenue act does not entitle him to apply unless he fulfills on eor other of the above three conditions.

448.  Conduct of perrtition cases. Pertition casers are decided by revenue officers of a class not below that of assistant collector of the Ist grade and usually by the Revenue Assistant. No officer who is not homswlf empowered to settle the case shouldreceive an application for partition. A qualified officer to whom an application has been presented can either cinduct the whole enquiry himself, or refer it for reportto as Assistant Collector of the 2^nd grade that ia as a rule to a tahsildar or naib-tahsidar. The latter course os generally the best to follos. But the officer beforewhom the case has been instituted isw responsibkle for itsd proper conduct throughout, and should exercise close supervision over the proceedings of the official to whom je jhas referred it for onvestigation. An assistantcollector,who in a disputed pertition case is content to pass prders on reports receivedfrom the tahsildar wothout ever having the parties before himself,and without, if need be inspecting the land to be divided, certainly fails in his duty

449.  Common defects in partition cases. No branch of revenue work used in former days to be worsen dine than pertition cases. Scandalous delayswere allowed to occur. No proper care was taken to lay down clearly the mode of partiton or to define accurately the limits of the land assigned to each share holder, or to point these out on the spot to the parties interested. Years after an elabolrate partition has been made on paper it was notin frequently found that the existing facts of possession in no way agreed with the allotmendts shown in the file. Matters have improved of late years but much watch fulness on the part of assistant and the deputy commissioner is required to prevent undue delays, and to secure that partitions are fairly carried out and given effect to fully and promptly. The points o which it is most essential to insist are that the cases are dealt with by the investigation officer as far as possible in or near the village where the land is sirtuted, (see paragraph 247 of this manual) that the proposed mode of partition is clearly explained by him and that the orders passed by the revenue assistant ar district and enter into sufficient detail to enable the actual division to be carried out without any opportunity arising for further duspute. In cases in which many shareholders are concrened, the first hearing should invariably be in or near the village where the land is situated. A visit to the village is equally necessary after the partition papers have been prepared and objections to the partition are to be heard. All the shares in the common land of a large village cannot be expeccted to attent at the tahsil on the same day, nor can objections against the partition be decided without seeing the plots alloted to each shareholders.

450.  How delay may be prevented. The failure to ascertain fro the first what is the actual contention of those who appose the partition is a fruitful cause of delays and wrong decisions. An officer who begins by carefully amining the parties on the spot is not likely to fall into this mistake. That complicated cases should remain pending for a considerable time is of course inevitable. The best way to check any tenency to procrastination is for the deputy commissioner, from time to time, to examine a few of the pending files in each tahsil.

451.  Care required to make equitable division. Officers are too ready to pass orders of a general character, for example, “that division shall be made having regard to the character of the land” if land descrived by the same name in the jamabandi really differs muchin value, a durther classification is a necessary preliminary to afirst division, and it should be made before the mode of partition is determined. On the other hand, it is not always equitable to give each man his exact share of each brought part of it under irrigation by sinking a well or digging an irrigation channel, or may have raised its value by embanking it. He ought,as far as possible, to be allowed to retain the land, whose present value is due to his enterprise. A suitable arangement often is to allot to him the land he has improved giving to his co-shares a larger area of unimproved land. In this connection efforts should be made to persuade co-shares to abstain from insisting on an exact application of the rule of equal proportions where this would result in the formation of an excessive number of small scattred plots or fields. It should be pointed out that such a division of a holding has many disadvantages from the point of view of agricultural efficiency. It entails waste of the cultivator’s time and labour and adds to the work ofhis bullocks by multiplying journeys to and from his land. It causes waste of water, and even waterlogging, by involving the use of unnecessarily long, tortuous or wells, drainage, leveling and other agricultural improvements more difficult, while small fields nay often be an obstacle to the emploment of improved agricultural implements and machinery. Should the parties neverthless desire the application of the rule of equal propertions of each class of land, the revenue officer has discretion, under section 118 of the land revenue act, to refuse compliance if he thinks that the circumstances of the case render that rule inappropriate and he may instead authorize duly specified deviations from it.

452.  General discretion to refuse partition. Certain special cases in which a revenue officer has a discretionary power to refuse partition have been referred to above. But, in addition, a general discetion to reject applications is given by section 115 of the act, which provides that “after exemining such of the co-shares and other persons as may be present……….. the revenue officer may, if he is of opinion that there is good and sufficient cause why partition should be absolutely disallowed, refuse theapplication recording the grounds of his refual.” This discreation should not be exercised in an arbitrary way. Ordinaralily the ground for refual should be on eof those alreay mentioned on the 453^rd and 454^th paragraphs. But the assistant colleccter is not debarred from rejecting an application on other grounds if a sufficient case is made out by the opponents of partition. If, for example, he finds that many of the new holdings which would be created by the partition of the common land of a village would be so minuute as to be useless to the right-holders to whom they would be allotted, he may reasonably refuse to sanction a holding byholding partition, and wither reject the application entirely or order a pattiwar partition, each patti being given seprate possession of its share in the common land of the estate.

453.  Claims by widows. The claims of widows for partition are often strongly opposed by the other co-shares. Among agricultural tribes in the punjab a widow who has no son inherits,as a rule, a life interest in her deceased husband’s land. Her right is indisputable, but it is one that ils viewed with great jealousy by ultimate heirs. Where her property consists of a share in a joint holding, they are very laoth to allow her seprate possession from a fear, often well founded, that she will manage it badly, and probably in the end attenate t. at the same time, so long as the holding is undivided, the widow often finds it diffcult to obtain her fair share of the produce. If the records of tribal custom prepared at settlement are examined, it will generally, through not invariably, be found that the widow’s right to claim partition is admitted, and it is clear that under the provision of the land revenue act she is entitiled to apply for it. But, if satifactory arrangements can be made to secure for her, due enjoyment of her life interest without partition, it should be disallowed.

454.  Questions of title. The officer to whom an application has been sent for report sometimes finds himself confronted at the outset by an objection witch disputes the title of the applicant to ask for partition. Fox example, the responant may deny the correctness of the report of rights, or he may admit its correctness, but assert that the applicant is not in possession of his share, and is therefore not entitled to claim partition at all, oor is not entitled to do so till he has had a settlement of account woth the responent. In such cases all that the tahsildar can do is to record clearly what the points in issue are, and return the case to the officer who is empowered to dispose of it. After hearing the parties,has asked for partition procedding will give him an advantage over the opposite party, has asked for partition in order to envade direct resort to the civil court regarding a question of title which he knows to be disputed. In that case he should file the proceedings, with leave to either party to apply to have htem reopned on showing that the point at issue has been a decided by a competent civil court. But if it appears that the applicant is acting in a straight-for-ward manner, the revenue officer should invariable, unless there is some special reassom to the contrary, deal with the dispute himself. Generally speaking where landowners are concered, be question at issue will be one over which a civil court jurisdiction. If it is so the procedure of the revenue officer must exactly folow that applicable to the trail of an origianl suit in a civil court, and the decree will for proposes of appeal, be treasted as if it had passed by the subordiante judge if however, the questions is one over which revenue court has jurdisction, the revenue offiver must proceed as a revenue court. The neglect of this provision by revenue officer often causes much trouble.

455.  Appeals. The law regarding appeal in partition cases is a little complicatede, an dforms a partial exception to the general rule that appeal from an assistant collector of any grade lie to the collector, an order under section 115 of the land revenue act absolutly disallowing a partition is appeable to the collector. but if he does not reject the application abinitilo the assistant collector must proceed ascertain the questions in dispute distinguishing between

(a)  question as to title in the property and
(b)  question as to the property to be divided or the mode of the making the partition.

The procedure in cases in which a question of a title has to bne settle has been  explained in the proceeding paragraph. If the assistant collector has acted as a civil court, and appeal will lie to the district judge,if as a revenue court to be collector. but appeal from any order he may pass “as the proprty to be divided or mode of a making a partition” are heard by the collector.