RSA No.3420 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3420 of 2009 Date of decision: July 20, 2011. Bihari Lal & Anr. ... Appellant(s) v. Ram Rati & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri D.S. Nirban, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. CM No.10558-C of 2009 There is a delay of 12 days in re-filing the accompanying appeal. For the reasons stated in the application, the same is allowed and the delay of 12 days in re-filing the appeal is condoned. RSA No.3420 of 2009 Plaintiffs having failed in two rounds of litigation, have preferred the present regular second appeal. Appellant-Plaintiffs had filed a suit for declaration praying that the suit land, detail and description of which was given in the plaint, is a joint land the plaintiffs along with proforma defendants are owners in possession to the extent of half share. They assailed the order dated 20.3.1995 passed by AC First Grade, Mohindergarh and the order dated 2.1.1996 pronounced by the Collector, RSA No.3420 of 2009 -: 2 :- Mohindergarh in partition proceedings in respect of the suit property and had further prayed that the orders passed by the aforesaid authorities be declared not binding upon the parties, being null and void and illegal. They had also prayed that permanent injunction be issued and the contesting defendants be restrained from interfering in the possession of the plaintiffs and the proforma defendants in the suit property. The case as set out in the plaint was that the suit property was jointly owned and possessed by the parties to the suit. In support of this averment, reliance was placed upon the jamabandi for the year 1987-88 and mutation No.816 and 854. It was averred that the plaintiffs along with proforma defendants are owners in possession to the extent of half share and the remaining half share equally was owned and possessed by the contesting defendants. Father of the parties had privately partitioned the suit land and since then they were in possession of their respective shares. They had also installed tube-wells in the land falling to their share and were irrigating their lands. Since the partition was effected with mutual consent, the same was not reflected in the revenue record. Later, the contesting defendants had not respected the mutual partition and filed an application for partition of the joint holding before AC First Grade, Mohindergarh. Before AC First Grade, it was amicably settled that while carrying out partition, possession of all the co- sharers shall be maintained and respected. On 30.11.1994, mode of partition was prepared and the records were sent to Girdawar for compliance. However, Girdawar colluded with the contesting defendants and the better land went to the share of the contesting defendants and infertile land was given to the plaintiffs and proforma defendants. Partition was carried under the approval of AC First Grade, Mohindergarh. RSA No.3420 of 2009 -: 3 :- Aggrieved against the same, plaintiffs had filed an appeal which was dismissed by the Collector, Mohindergarh. A grievance was made that the order dated 20.3.1995 passed by the AC First Grade, Mohindergarh and the order dated 2.1.1996 passed by the appellate authority, i.e., Collector, Mohindergarh along with rapat roznamcha are liable to be set aside. Upon notice, contesting defendants caused appearance and filed written statement in which various preliminary objections regarding maintainability of suit, cause of action, locus standi, jurisdiction of the civil court and further that the plaintiffs are estopped by their own act and conduct to approach the court, were raised. On merits, it was pleaded that the land stood already partitioned in pursuance of application No.805 dated 22.6.1994, and mode of partition was prepared. Furthermore, the mode of partition was challenged before the appellate authority and it was upheld upto Financial Commissioner. Thereafter, the impugned orders were passed. Factum of oral partition having been ever arrived at between the parties was denied. It was prayed that the order dated 20.3.1995 passed by the AC First Grade and dated 2.1.1996 passed by the Collector were perfect and the rapat roznamcha, in pursuance whereof, call for no interference. After conclusion of the pleadings, the trial court had formulated the following issues:- 1. Whether judgment dated 20.3.1995 of AC First Grade, Mohindergarh and order dated 2.1.1996 of Collector, Mohindergarh as rapat roznamcha dated 10.6.96 are illegal, null and void, if so its effect? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPP RSA No.3420 of 2009 -: 4 :- 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the civil court has no jurisdiction to try and entertain this suit? OPD 6. Whether the plaintiff is estopped from filing the suit due to his act and conduct? OPD 7. Whether the defendants are entitled to special cost under Section 35A C.P.C.? OPD 8. Relief. Plaintiff No.1 – Bihari Lal himself appeared as PW3, plaintiff No.2 – Hoshiar Singh as PW2 and they also examined Chandu as PW1. Plaintiffs also placed reliance upon various documents duly exhibited on the record as Ex.P1 to P11, Mark P1/A and P2/A. Defendant No.1, Kanwar Singh, appeared as DW1. Defendants also examined Mool Chand as DW2 and also tendered various documents, Ex.D1 to D5, judgment and decree Ex.D5/A to D6. In rebuttal, plaintiffs placed reliance upon documents Ex.P12 to P16 and copy of mutation No.1007 as Mark A and copy of nakal sizra as Mark A2. The trial court decided issues No.1 and 5 together. The trial court noticed the contention of the defendants to the suit that the order dated 26.5.2000 Ex.P1 passed by AC First Grade, Mohindergarh has been upheld upto the court of Financial Commissioner and thereafter possession has been delivered to the defendants on 10.6.1996. The trial court, after taking notice of the contentions of the parties held as under:- RSA No.3420 of 2009 -: 5 :- “20. Admittedly, plaintiffs have filed objection and they lost their battle upto the Financial Commissioner. Consequently, final step in the partition proceedings was taken and the instrument of partition was prepared.” The trial court further held that in the present case there was no dispute of title. The court, considering the evidence of the parties, further held that there is no violation of procedure prescribed under the Punjab Land Revenue Act (hereinafter called as the Act) for carrying out partition proceedings. The court relied upon Section 158(2)(xvii) and (xviii) to hold that the jurisdiction of the civil court is barred on all matters which can be raised before the revenue authorities. The trial court relied upon the judgment of this Court to say that to carry out partition is a work of field staff and the revenue authorities have got expertise in this particular field. Furthermore, since the title is not under challenge, partition proceedings which have been determined upto Financial Commissioner cannot be assailed before the civil court. In support thereof, reliance can be placed upon Raj Kumar v. Katu Ram, 1995(1) PLR 514 wherein it was held that in case of order of partition, jurisdiction of civil court is totally taken away, where order is challenged on ground other than lack of jurisdiction. Order passed by Revenue Officer, if alleged to be without jurisdiction, then only civil court will have jurisdiction. Jurisdiction of civil court is barred on all matters which can be raised before revenue authorities. In the present case, findings given by the trial court were affirmed by the lower appellate court. I have heard Shri D.S. Nirban, Counsel for the appellants. In the present case, the core issue before this Court is, whether RSA No.3420 of 2009 -: 6 :- in the given circumstances of the case, jurisdiction of the civil court is barred or not. In this case, the appellants have not challenged the title of the parties. They have also not pointed out any irregularities. The only grievance is that the defendants have been given better lands. In Raj Kumar v. Katu Ram (supra), this Court has authoritatively culled out the principles which can be applied to determine whether civil court has jurisdiction or not. Furthermore, this Court in Jagga Singh v. Surjeet Singh, 2000(3) RCR (Civil) 52 has held that the civil court cannot partition the land assessed to land revenue. Land assessed to land revenue can be partitioned only by the revenue officer, civil court can partition agricultural land which has been converted into residential plots, and houses have been constructed thereon. Furthermore, in the present case, it is not the case of the parties that some irregularity or error of procedure has been committed by the revenue authorities. It will be pertinent to mention the following finding of the trial court:- “28. ... I have no hesitation to hold that there is no illegality in the order dated 20.3.95 passed by A.C. 1st Grade, Mohindergarh and order dated 2.1.96 of Collector, Mohindergarh and rapat roznamcha dated 10.6.96. The above-said orders have been passed by the competent court of jurisdiction. The revenue courts have not exceeded their jurisdiction. Nor there was lack of jurisdiction at the time of passing of the impugned orders. In these circumstances, I have no hesitation to hold that jurisdiction of the civil court is barred in the present case under Section 158 of the Act.” The trial court also decided issues No.2 to 5 and 7 against the RSA No.3420 of 2009 -: 7 :- defendants being not pressed and thereafter had dismissed the suit. A perusal of the judgment of both the courts below reveals that after discussing the evidence threadbare, they have come to the conclusion that the provisions of the Act for effecting partition have been duly complied with and the statutory authorities have acted in conformity with the above mentioned principles of judicial procedure. Furthermore, it will be pertinent to mention here that the alternative procedure prescribed and the remedy aforementioned under the Act is efficacious, sufficient and adequate. As stated earlier, neither revenue courts have violated the principles of natural justice nor have committed procedural irregularities. To carry out partition of the agriculture land require expertise, for which revenue officials have necessary skill, therefore, civil court cannot determine whether the land given to the plaintiffs was bad or better than the land given to the defendants. This Court cannot become oblivious of the fact that the order passed by the AC First Grade was made subject matter of appeal and the revision. In view of the discussion made above, this Court is of the view that the substantial question of law formulated by the Counsel, viz, whether the civil court has got jurisdiction or not, is to be answered against the plaintiff in view of the settled legal position to which reference has been made above. In the totality of the circumstances, there is no merit in the appeal and the same is dismissed. [Kanwaljit Singh Ahluwalia] July 20, 2011. Judge kadyan