R.S.A. No. 3037 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3037 of 2010 (O&M) Date of decision : 10.8.2010 ... Sant Singh and others ................Appellants vs. Baggar Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. R.S. Rangpuri, Advocate for the appellants ... K.C. Puri, J. This is an appeal directed by the plaintiff-appellants against the judgment dated 26.11.2009 passed by Ms. Ramesh Kumari, Additional District Judge, Muktsar, vide which the appeal preferred by the plaintiffs against the judgment dated 21.10.2008 passed by Sh. Rajiv Kalra, Additional Civil Judge (Senior Division), Muktsar, was dismissed. The case of the plaintiffs, in brief, is that they are the owner in possession of the land detailed in the head note of the plaint. No partition of the joint land has been made. Defendants are very clever persons and they in connivance with revenue officials got succeeded in getting mutations No. 12144 and 12323, whereby the plaintiffs R.S.A. No. 3037 of 2010 -2- were given land measuring 17 kanal 10 marlas and 25 kanal 7 marlas respectively, instead of land measuring 25 kanal 10 marlas and 32 kanal 13 ½ marlas. The plaintiffs are owners to the extent of 54 kanal 3 marlas, but they have been given land measuring 42 kanal 17 marlas. No partition has taken place and the mutations are liable to be ignored on this ground. Defendants have contested the claim of the plaintiffs. Defendants No. 9 to 12 have taken preliminary objections against the maintainability of the suit on the ground of lack of jurisdiction of civil Court, lack of cause of action and locus standi of plaintiffs and estoppel. On merits, the answering defendants submitted that plaintiffs were co-sharers in the joint land. However, the other allegations have been denied. It is alleged that in the beginning of moth of October 2004, parties have mutually agreed to partition of the joint holding and to get their respective khatas separated. The settlement was arrived at and with the mutual consent of all the co- sharers, the joint land was partitioned. The plaintiffs are given separate land as reflected in the mutations and are in possession of the said land. Parties have reported the matter to the revenue officials and on the basis of which mutations have been sanctioned. In replication, plaintiffs reiterated the stand taken in the plaint while controverting the stand taken by the defendants in their written statement. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are entitled to decree of declaration? R.S.A. No. 3037 of 2010 -3- OPP. 2. Whether the plaintiffs are entitled to decree of permanent injunction as prayed for? OPP 3. Whether this Court has no jurisdiction to try this suit? OPD 4. Whether plaintiff has no cause of action and locus standi to file the present suit? OPD 5. Relief. In support of their contention, plaintiffs examined PW-1 Sant Singh. On the other hand, contesting defendants examined DW-1 Sukhmander Singh, Halqa Patwari, DW-2 Darshan Singh Kanungo, DW-3 Harbans Singh, Revenue Patwari, DW-4 Naib Singh and DW- 5 Sanjiv Sharma, Handwriting expert. The learned trial Court after appraisal of the evidence came to the conclusion that parties have orally partitioned their land and said partition has been reflected in the revenue record and consequently decides issues No. 1 and 2 against the plaintiffs. Whereas, issue No. 3 and 4 were decided in favour of the defendants and against the plaintiffs. In view of the findings on these issues, suit of the plaintiffs was dismissed. Feeling dissatisfied with the above said judgment dated 21.10.2008 passed by Sh. Rajiv Kalra, Additional Civil Judge (Senior Division), Muktsar, , the plaintiffs preferred the Ist appeal and the same was dismissed vide judgment dated 26.11.2009 passed by Ms. Ramesh Kumari, Additional District Judge, Muktsar. Still feeling dissatisfied with the judgments dated 26.11.2009 and 21.10.2008, as referred to above, the present regular second R.S.A. No. 3037 of 2010 -4- appeal has been preferred. The plaintiff-appellants in paragraph No.11 of the grounds of appeal have mentioned that following substantial questions of law are involved in the present appeal:- i) Whether the civil court has the jurisdiction to look in to the genuineness of the oral partition alleged on the basis of fraud? ii)Whether the factum of oral partition is required to be proved independently without the incorporated record of revenue department? iii)Whether the fraud has been placed by the defendants/respondents with the plaintiff/appellants and thus civil court is competent to interfere in the oral partition? Learned counsel for the appellants has submitted that alleged oral partition is the result of fraud played upon the plaintiffs by the defendants. The defendants were required to prove the oral partition by independent evidence. Mere fact that report of the Patwari has been filed, does not prove the oral partition. Both the Courts below have misread and misinterpreted the evidence on the file. The defendants have played fraud upon the plaintiffs and as such the Civil Court is competent to interfere in the oral partition. Otherwise also, more than 11 kanals of land has been given less to the plaintiffs in the partition and that unequal partition should have been set aside by both the Courts below. I have carefully considered the submission made by counsel R.S.A. No. 3037 of 2010 -5- for the appellants and have also gone through the record of the case. The arguments advanced by the counsel for the appellant looks attractive, but are without any force. Both the Courts below have given a definite finding that there was oral partition which was reported to the revenue officials and the same was accepted by the parties to this suit. There is concurrent finding recorded by both the Courts below that mutations have been attested on the basis of oral partition which is dully reflected in the revenue record. That being a finding of fact does not call for any interference in the regular second appeal. No particulars of fraud have been given. The thumb impression/signatures of the plaintiffs appearing on the Rapat Roznamcha vide which the oral partition was brought to the notice of revenue officials…. The revenue officials have acted in accordance with Section 123 of the Land Revenue Act. Both the Courts below have rightly held that in view of Section 158 of the Land Revenue Act, the civil suit does not lie challenging the partition, Where the revenue officials have already effected the partition under Section 123 of the Land Revenue Act. The questions of law raised by the appellants, as referred to above, in fact does not exist and there is only one question which is involved in the present appeal i.e. whether the parties have orally partitioned the suit land and reported the matter to the revenue authority. Both the Courts below have given a concurrent finding of fact regarding the said controversy. The same cannot be challenged in the regular second appeal. So, I have no hesitation in holding that no question of law, much less any question of law arises in the present R.S.A. No. 3037 of 2010 -6- appeal. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 10.8.2010 Judge chugh