IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.411/1998 Reserved on: 12.12.2008 Decided on:24.12.2008 Hari Singh and another. …Appellants. Versus Bantu and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.No For the Appellants : Mr. Romesh Verma, Advocate. For the Respondents : Mr. R.K. Gautam, Senior Advocate with Ms. Radhika Gautam, Advocate for respondent No.1. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 21.7.1998 passed by the learned District Judge, Solan Camp Court at Nalagarh in Civil Appeal No. 37-NL/13 of 1997. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for declaration with consequential relief of permanent injunction. The case of the plaintiffs in nutshell was that they were having half share and remaining half share 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 was with respondent-defendant No.1 (hereinafter referred to as ‘defendant No.1’ for convenience sake) and Smt. Gulab Dei qua land measuring 1 bighas 17 biswas comprised in Khasra No. 583/1 situate in village Nangal Dhaka, H.B. No.19, Pargana Gullerwala, Tehsil Nalagarh District Solan. Their further case was that the plaintiffs and defendants were joint owners in possession of the land measuring 6 bighas 1 biswa comprised in Khewat/khatauni No. 114/86 situate in village Nangal Dhaka. It was further submitted by the plaintiffs that defendant No.1 sold the suit land of khasra No. 583/1 to respondent- defendant No-2 (hereinafter referred to as ‘defendant No.2’ for convenience sake) and Mansha Ram, father of respondents-defendants No.3 and 4 (hereinafter referred to as defendants No. 3 and 4 for convenience sake) vide sale deed dated 11.2.1971. According to them, the sale of half share of the father of the plaintiffs in the suit land by defendant No.1 to defendant No.2 and Sh. Mansha Ram was illegal and void. In the alternative they had claimed that if they are not held entitled for declaration of having half share in the suit land then they be held entitled for joint possession to the extent of 19 biswas in land measuring 6 bighas 1 biswa of Khewat/Khatauni No. 114/86. They have also challenged the orders passed by the Assistant Collector 1st Grade dated 21.1.1992 and mutation No. 556 dated 27.3.1992. The suit was contested by defendant No.1, Sh. Bantu. He has claimed that sale of the suit land made by him was legal and the joint land has been legally partitioned between the parties. His further contention was that partition proceedings cannot be questioned in the civil court. The trial court on the basis of the evidence led by the parties dismissed the suit on 29.9.1997. The plaintiffs preferred an appeal before the learned District Judge, Solan camp at Nalagarh. The same was decided by the learned District Judge 3 on 21.7.1998. This Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the findings as recorded by the learned District Judge are vitiated for want of proper appreciation and consideration of the pleadings of the parties and the controversy as involved has not been lawfully adjudicated upon? 2. Whether the suit has wrongly been held to be barred by limitation? 3. Whether the Revenue Officers have exclusive jurisdiction to partition the joint land by way of partial khewat carved out of the joint holdings without any legal basis, authority or order? 4. Whether the orders passed by the Revenue Officers with respect to the suit land are illegal, void and without jurisdiction, they having failed to exercise jurisdiction in accordance with law and they have violated the principle of natural justice. 5. Whether the suit of the plaintiffs, in the alternative for joint possession of the suit land is barred by limitation in the absence of any plea of ouster/adverse possession by co-sharers/defendants in the Civil Court and further in the absence of proof of the same? 6. whether sale of specific Khasra No. 583/1 by defendant No.1 on representation of private/family partition to the vendees could be the starting point of limitation for plaintiffs to file suit for declaration and in the alternative for joint possession of the suit land, or such sale being only as an arrangement was not required to be adjusted out of the share of defendant in the partition case and as such, could defeat the title of plaintiffs in any manner?” Mr. Romesh Verma, Advocate has strenuously argued that the judgments and decrees passed by both the learned courts below are not sustainable. He has vehemently argued that the findings recorded by both 4 the courts below that the suit was barred by limitation is contrary to law since according to him the suit was within limitation as his clients came to know about the sale deed dated 11.2.1971 in the year 1992 only. His further contention was that the orders passed by the Assistant Collector 1st Grade dated 21.1.1992 which was subsequently affirmed on 24.10.1994 by the Collector, Nalagarh and by the learned Commissioner on 17.12.1994 are void. According to him, the civil court had the jurisdiction to go into the partition proceedings as well. Mr. R.K. Gautam, Senior Advocate appearing on behalf of respondent No.1 has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and have perused the record carefully. Since all the substantial questions of law are inter-linked and inter- connected, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The execution of the sale deed dated 11.2.1971 has not been disputed by the parties. It was registered on 12.2.1971. The suit was filed by the plaintiff on 21.4.1992. Mr. Romesh Verma has strenuously argued that his clients came to know about the sale deed only in the year 1992 and thus the suit was within limitation. According to Mr. R.K. Gautam, the suit was to be filed within three years from the date the sale deed was registered i.e. 12.2.1971. The trial court came to a conclusion that the suit was barred by limitation. The trial court also came to a conclusion that the plaintiffs were not entitled to alternative relief. The learned District Judge has discussed the evidence threadbare including the revenue entries affected after the sale deed registered on 12.2.1971 as well as the orders passed by the Divisional Commissioner on 17.12.1994. The bare perusal 5 of Ex.P-1, copy of jamabandi for the year 1970-71 establishes that immediately after the sale was made by defendant No.1 Bantu, the entry in the jamabandi was recorded to this effect. It was repeated in Ex.P-2 and P-3, copies of jamabandis for the years 1977-78 and 1982-83. The sale made on 11.2.1971 was registered on 12.2.1971. It is thus unbelievable that the plaintiffs did not know that the suit land had already been sold. The revenue entries to this effect had also been recorded in the Jamabandi for the year 1970-71. The plea put forth by Mr. Romesh Verma that his client came to know about the sale deed in the year 1992 in these circumstances is unbelievable. Both the courts below have rightly come to a conclusion that the suit was barred by limitation. Defendant No.1 Bantu had filed an application for partition before the competent authority i.e. Assistant Collector 1st Grade, Nalagarh. The plaintiffs filed written statement to the application preferred by Sh. Bantu. This fact was admitted by PW-4. The partition application was allowed by the competent authority on 31.1.1992. The plaintiffs preferred an appeal against the order dated 31.1.1992 which was rejected by the Collector, Nalagarh on 24.10.1994. The revision preferred by the plaintiffs was dismissed by the Commissioner on 17.12.1994. In other words, the order dated 31.1.1992 had attained finality. According to the partition order i.e. 31.1.1992, land measuring 7 bighas 6 biswas came in share of the plaintiffs and Bantu was allotted 6-1 bighas of land. The plea which has been raised in this suit has never been taken in the partition proceedings. The civil court will not look into afresh in the matter in view of the specific bar under section 171 clause (xvii) Himachal Pradesh Land Revenue Act, 1953. Accordingly the relief prayed for by them has rightly been declined by both the courts below. The attempt made by the plaintiffs to challenge the entries in the jamabandi for the year 1982-83 had rightly not been 6 disturbed by the learned first appellate court. The parties are bound by partition order dated 31.1.1992 and they cannot claim to be co-owners in Khasra No. 583/1. There is neither any jurisdictional error nor any procedural irregularity in the judgments and decrees passed by the courts below and need not be interfered with by this Court. The judgment cited by Mr. Romesh Verma i.e. O. Leelavathi and others versus M. Neelakanta Naidu and others, 2007 (1) Civil Court Cases 457 (Karnataka) is not applicable in this. The plaintiffs knew about the sale deed executed on 11.2.1971 since the revenue entries were also made in the jamabandis i.e. 970-71 onwards and no objection was ever raised before the revenue authorities at the time of the pendency of the application for partition. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 24.12. 2008 (Rajiv Sharma ), J. *awasthi*