Regular Second Appeal No.3240 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.3240 of 2008 Date of decision: 06.07.2009 Mangat Ram, 62 years, son of Sh. Punu Ram, resident of village Bassowal Tehsil Anandpur and District Ropar. ..... Appellant. Versus Tilak Raj son of Lachman Singh resident of village Bassowal, Tehsil Anandpur and District Ropar. ..... Respondent. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Pankaj Sharma, Advocate for the appellant. Sham Sunder, J. This Regular Second Appeal has been filed by the plaintiff (now appellant) for setting aside the judgment and decree dated 17.08.2006, rendered by the Court of Additional Civil Judge ( Senior Division ), Anandpur Sahib and the judgment and Regular Second Appeal No.3240 of 2008 2 decree dated 23.05.2008, rendered by the Court of Additional District Judge, Rupnagar, vide which the appeal was dismissed. 2. The brief facts of the case, are that the plaintiff claimed himself to be the owner in possession of 0 Kanal 7 Marlas of land bearing khasra no. 231, being 1/12 share of the total land measuring 4 Kanal 3 Marlas. It was stated that the plaintiff developed his share and raised construction therein. Earlier the defendant filed an application for partition against the plaintiff and other co-sharers, which was decided by the Court of Assistant Collector Ist Grade, Anandpur Sahib, on 28.11.1996. It was further stated that the Assistant Collector Ist Grade, Anandpur Sahib, had no jurisdiction to decide that application, as the property involved gair mumkin abadi. It was further stated that against the order dated 28.11.1996, passed by the Assistant Collector Ist Grade, Anandpur Sahib, one of the co-sharers namely Des Raj, filed an appeal, before the Collector Anandpur Sahib, which was still pending in the Court of Financial Commissioner, Punjab, Chandigarh. It was further stated that the order Regular Second Appeal No.3240 of 2008 3 passed by the Assistant Collector Ist Grade, Anandpur Sahib, in the partition proceedings had thus, not become final. It was further stated that the defendant was trying to take forcible possession of the land in dispute, on the basis of the aforesaid partition. Accordingly, a suit for declaration and permanent injunction was filed. 3. The defendant, put in appearance, and contested the suit of the plaintiff by way of filing written statement, wherein, it was averred that the plaintiff had no locus standi to file the suit, and that the suit was not maintainable. It was further pleaded that the plaintiff had not approached the Court with clean hands and suppressed the material facts. It was admitted that earlier the property, in dispute, was joint in respect of khasra No. 231. However, the remaining averments contained in the plaint were denied. 4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?OPP Regular Second Appeal No.3240 of 2008 4 2- Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for in the alternative plea?OPP 3- Whether the plaintiff has no locus standi to file the present suit ? OPD 4- Whether the suit is not maintainable in the present form ? OPD 5- Whether the plaintiff has not come to the Court with clean hands and he has suppressed the material facts from the Court ?OPD 6- Relief.” 5. After hearing the Counsel for the parties, and on going through the evidence, and record of the case, the trial Court decided issue Nos.1 and 2 against the plaintiff. The remaining issues were not pressed. Ultimately, the trial Court dismissed the suit of the plaintiff. 6. Aggrieved against the judgment and decree dated 17.08.2006, passed by the trial Court, the plaintiff (appellant) filed an appeal before Regular Second Appeal No.3240 of 2008 5 the Appellate Court, at Rupnagar, which vide its judgment and decree dated 23.05.2008 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed, by the plaintiff/appellant. 8. I have heard the Counsel for the appellant, and have gone through and perused the documents on record, carefully. 9. The Counsel for the appellant submitted that the Court of Assistant Collector Ist Grade, Anandpur Sahib, had no jurisdiction, to effect partition, in respect of the gair mumkin abadi. He further submitted that, as such, the order partitioning the property, in dispute, was illegal. He further submitted that once that order was illegal, the property remained joint. He further submitted that, in pursuance of the order, passed by the Assistant Collector Ist Grade, in partition proceedings, the defendant (now respondent) could not take possession of the property, in dispute. He further submitted that the Courts below, thus, wrongly dismissed the suit of the plaintiff. Regular Second Appeal No.3240 of 2008 6 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. Admittedly, the property, in dispute, was originally joint. It bore khasra No. 231, which was the subject matter of partition. The plaintiff (appellant) was a party to those partition proceedings. Those partition proceedings stood concluded, and the final order was passed therein. An instrument of partition on 08.04.2002 was also drawn. In pursuance of Sanad Takseem vide rapat no.1 of 24.09.2002, all the different-co-sharers were put in exclusive possession of their allotted shares (Kurras) on 18.09.2002. As per the said instrument of partition dated 08.04.2002, Mangat Ram, plaintiff was allotted 0 Kanal 7 Marlas of land bearing khasra no. 231/5. Not only this, it is evident, from the record, that as per the site plan Ex.D9, prepared by Tehsildar, Khasra No. 231/5 reflected the same boundaries, which were shown in the site plan, Ex.P2, filed by the appellant. It means that the possession of the plaintiff (now Regular Second Appeal No.3240 of 2008 7 appellant )over his area, was kept intact. The grouse of the plaintiff(appellant) was only to the effect, that no passage from the Western side was given to the area, which was allotted to him, in the partition proceedings. However, in the instrument of partition, no such passage from the Western side was given to him. No objection was taken by the appellant before the Revenue Authorities that he had not been provided passage from the Western side. It was held in Rawant Kumar v. Havita Shri 1998(3) RCR 686 that once the partition proceedings are finalized by the Revenue Authorities, under the Punjab Land Revenue Act, the jurisdiction of the Civil Court to intervene gets barred. Even the plaintiff (now appellant) did not file any appeal or revision against the order of the Assistant Collector Ist Grade, nor the order of Assistant Collector Ist Grade was stayed by any competent Court. The concurrent findings of fact recorded by the Courts below that in pursuance of the Sanad Takseem, all the co-sharers were put in possession of the partions, which fell to their lot, in the partition proceedings even before the filing of the suit and Regular Second Appeal No.3240 of 2008 8 that the plaintiff (now appellant ) was not entitled to the injunction prayed for, are based on the correct appreciation of evidence. The same do not warrant any interference. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 11. For the reasons recorded above, the appeal is dismissed. ( Sham Sunder ) July 06, 2009 Judge dinesh