IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 81 of 2008 Date of decision: 10.04.2008 Roshani Devi ... Appellant Versus Babu Ram & Ors. … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Jagan Nath vice Mr. Anand Sharma, Advocate. For the respondents: Ex parte. V.K. Ahuja, J. (Oral): This second appeal under Section 100 CPC has been filed by the appellant against the judgment and decree of the Court of learned District Judge, Kangra at Dharamshala, dated 1.8.2006, vide which he affirmed the judgment and decree dated 30.9.2004 passed by the learned Civil Judge(Junior Division)-II, Kangra. Briefly, the facts of the case are that the appellant as plaintiff filed a suit for declaration that Khata No. 39 and Khata No. 38 were carved out from old Khata No. 79 of pre-settlement. It was alleged by the plaintiff that splitting of old Khata No. 79 into two different Khatas during the current settlement was illegal and without jurisdiction and as such, defendant No. 1 be restrained from continuing with the 1Whether reporters of Local Papers may be allowed to see the judgment? 2 partition proceedings initiated by him. In the alternative, it was also prayed that defendant No. 1 be directed to include the land in Khata No. 38 in that partition case. Defendants pleaded that the land in the pre-settlement period was in the joint Khata but the bifurcation thereof during the current settlement was justified and the settlement authorities were competent to do so and the remedy for the plaintiff was before the Revenue Court. It was pleaded that the land in Khata No. 39 is no more joint and the same stood partitioned on the order of A.C. Ist Grade, Kangra, dated 22.8.1992 and the plaintiff was allotted the land in such partition and the plaintiff was a consenting party to it and as such, she had no right to challenge the same after the partition is complete. Various issues were framed by the learned trial Court and the main issue was as to whether bifurcation of Khata No. 79 into two numbers was wrong and against law and whether the partition proceedings pertaining to Khata No. 39 only are wrong. Parties led their evidence and the learned trial Court vide its judgment decided both these issues as against the plaintiff and the suit was accordingly dismissed. Those findings were affirmed by the learned first Appellate Court on appeal. The main ground taken by the learned counsel for the appellant is that old Khata No. 79 was bifurcated into Khatas No. 38 and 39 and partial application for partition of Khata No. 39 only was not maintainable and document Ext. DW2/D statement of plaintiff was not considered by the Court below while giving its findings. It is the only document referred to by the learned counsel for the appellant that it was not considered by the Courts below. According to law while giving its 3 findings there can be no reappraisal of the evidence before this Court sitting in appeal until and unless some oral or documentary evidence has been left to be considered by the Courts below, only then the appeal can be admitted and there can be reappraisal of the evidence. Coming to the findings recorded by the learned trial Court it had clearly concluded that the bifurcation of old Khata No. 79 into two numbers was not wrong and the revenue authorities were competent to do so since the plaintiff had no share in Khata No. 38. Therefore, the application for partition of Khata No. 39 only was filed by defendant No. 1 as against the plaintiff. Those proceedings culminated into passing of the order in the year 1992. The A.C. Ist trade has decided the partition case on 22.8.1992 and the plaintiff was allotted the land and possession was also delivered to the parties. Coming to the document Ext. DW2/A, which is a statement of plaintiff per appellant’s counsel. This document was referred to by the learned trial Court in Para-16 of its judgment, in which she has alleged that she has not consented to the partition. However, the statement of the plaintiff as well as other co-sharers were referred which was recorded in the partition proceedings and the learned trial Court had observed that the shares were separated and possession was delivered after recording the statement of the plaintiff Ext. DW2/H in the partition proceedings. A perusal of the judgment of the learned trial Court also shows that these documents Ext. DW2/D and Ext. DW2/H were referred to by the learned first Appellate Court and it was concluded in Para-45 that the plaintiff has nowhere raised the question of title before the Revenue Officer concerned and the partition proceedings were decided on merits. The partition proceedings have been completed and acted upon without question of title being raised before the 4 concerned Revenue Officer and once the partition proceedings have been concluded and the possession has been delivered to the parties long back, there was no occasion for the Civil Court to interfere in those findings and give its judgment that these were correct or not. All the points raised by the plaintiff in the plaint have been duly considered by the Courts below and no case is made out for admission of the appeal. In view of the above, there is no merit in the appeal which is liable to be dismissed and is dismissed accordingly without any order as to costs. ( V.K. Ahuja ), April 10, 2008 Judge (BSS)