RSA No.3141 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3141 of 1985 Cross-objections No.3-C of 1986 Date of decision 31.5.2011 Chajan Singh etc. Appellants vs. Nandan etc. Respondents CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Vikas Bali,Advocate for the appellants Mr.M.L.Sarin,Senior Advocate with Mr.Nitin Sarin,Advocate for the respondents JITENDRA CHAUHAN,J. The present appeal has been filed against the judgment and decree, dated 7.8.1985 passed by learned Ist Appellate Court, whereby the judgment and decree dated 21.1.1984 passed by the ld. Trial court were affirmed. The appellants-plaintiffs filed a suit for declaration to the effect that the orders dated 6.2.1981, and 20.2.1981 passed by the Assistant Collector, Ist Grade, Palwal, in respect of the suit land, stated in para 2 of the plaint are null and void and do not confer any right or title upon defendant Nos. 1 to 5, and a decree of permanent injunction RSA No.3141 of 1985 2 restraining the defendant Nos. 1 to 5, from bringing the suit lands under cultivation; further restraining them from felling the trees standing therein. The assertions of the appellants-plaintiffs are that they are Biswedars and right holders in the revenue estate of Village Khambi, Tehsil Palwal, and have filed the suit in their individual capacity as well as representative capacity on behalf of the proprietory body of the revenue estate of village Khambi. During the consolidation proceedings total land measuring 167 kanals 6 marlas was reserved for common purposes, under Section 18-C of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act,1948 (for short the 'Act'). This arrangement was conceived keeping in view the fact that there was no panchayat deh or shamlat deh in the village. The title of land was to vest in the proprietory body of that village. In view of the above stated reservation of land, the management of the suit land was given to respondent-defendant No.8, i.e the Gram Panchayat, and the suit land was to be used for common purposes of the village. It was further asserted that Respondents-defendants No. 1 to 5, and some other persons, obtained an order of partition of the land from the Assistant Collector Ist Grade, Palwal, secretly and fradulently, and on the basis of that order, they got a fictitious entry made in their name in the revenue record with regard to the delivery of possession to them. It was further stated that the possession of that land be not delivered to them, as the appellants-plaintiffs, and inhabitants of the village would suffer irreparable loss as there was no other land to be RSA No.3141 of 1985 3 used for common purposes of the village. Respondents-defendants No. 2,3 & 4, challenged the locus standi of the appellants-plaintiffs to file this suit and also the jurisdiction of the civil court to try the same. It was alleged that the suit land was never used for common purposes. Plea of estopple was also urged, and it was alleged that the appellants-plaintiff Nos. 1 to 3, had no locus standi to challenge the impugned order of partition as they were not co-sharers in the land. From the pleadings of the parties, the following issues were framed:- 1. Whether the orders of partition dated 20.2.1981 and 6.2.1981 passed by the Assistant Collector, Ist Grade, Palwal in respect of the suit land are null and void, and without jurisdiction as alleged?OPP 2. Whether the plaintiffs are estopped by their act and conduct from filing the present suit?OPD 3. Whether the civil court has got no jurisdiction to entertain and try the suit?OPD 4. Whether the plaintiffs have got no locus standi to file the suit?OPP 5. Whether the suit is barred from misjoinder of the defendant No.6?OPD 6. Relief. The Ld. Trial court while deciding issue Nos 1 & 3 observed that the jurisdiction to effect partition of agricultural lands RSA No.3141 of 1985 4 exclusively vest in the Revenue Authorities. Under Section 18 of the Act, it is required that if there is no land reserved for any common purpose, or if there is any such land which is considered inadequate, the land can be reserved for common purposes during the consolidation of holdings. Under the rules, framed under this Act, a provision has been made in Rule 16(ii) that the proprietory rights in respect of such a land shall vest in the proprietory body of the state, and it will be recorded as “Jumla Malkan Wa Digar Haqdaran Aarazi Hasab Rasad Raqba”. The management of such land shall vest in the panchayat on behalf of the proprietory body. However, this Act does not lay down that if the land is not required for common purposes, it cannot be partitioned. Thus, there being no question of title involved in the partition proceedings, the desirability of partition was to be looked into by the Assistant Collector himself and it was within his jurisdiction to decide the question of partition. The appellants-plaintiffs have relied upon the copy of the scheme Istemal, Ex.P1, on the record in which the lands in question were ordered to be reserved for common purposes, such as Charagah. There was no entry in the revenue record that the land was ever used as Charagah. It was recorded as banjar land. The order of the Assistant Collector Ist Grade, effecting partition proceedings was not placed on record by the appellants-plaintiffs. The defendants have placed it on record as Ex.D18 on 2.7.1979.The appellants-plaintiffs neither challenged this order in the plaint nor any issue was framed. It was observed by the ld.trial court that when there was no order of 20.2.1981, how it could be held that it was illegal or RSA No.3141 of 1985 5 without any jurisdiction. So, Issue No.1 was decided against the appellants-plaintiffs. Under Issue No.3, the respondents-defendants were to prove that the civil court has no jurisdiction to entertain and try the suit. It was held by the trial court that Section 158 of the Land Revenue Act, excludes the jurisdiction of the Civil Court in respect of matters mentioned in sub section 2. Under Clause XVIII the jurisdiction of the civil court is to entertain any suit regarding any question as to the allotment of the land, partition of the estate holding or tenancy of as to distribution of the land on such partition has been excluded. The right to partition of land is governed by Section 158 of the Act.The ld. Trial court observed that the civil court has no jurisdiction to entertain and try the present suit, the Issue No.3 was decided in favour of the respondents-defendants and against the appellants-plaintiffs. Under Issue No.4, it was observed by the ld. Trial court that the defendants were to prove that the plaintiffs have no locus standi to file the present suit. The plaintiffs are Tika Ram, Chhajan Singh and Dori Lal. The land in question is recorded as “Jumla Malkan Wa Digar Haqdaran Patti Tarheti Hasab Raqba”. Thus it vests in the proprietory body of Patti Tarheti. No evidence was brought on record by the plaintiffs to show that Dori Lal, is a proprietor of the Patti. Regarding the other plaintiffs also, no evidence was led to prove that they were proprietors in this Patti before the land in question was reserved for common purposes. Ex.P3 is the list of proprietors of Patti, Tarheti, which was prepared from jamabandi of the year 1978-79. The RSA No.3141 of 1985 6 defendants alleged that Tikam Chand and Chajjan Singh were the tenants in respect of the Shamlat Land of Patti Tarheti, and they became occupancy tenants and acquired ownership rights in the lands in this Patti after the consolidation. No evidence has been produced on record by the plaintiffs to rebut the contention and ot prove that the plaintiffs are proprietors of Patti, Tarheti having right in the joint lands. In view of this discussion, the ld. Trial court decided Issue No. 4 in in favour of the defendants. Ld. Trial Court held that the appellants- plaintiffs failed to establish their claim and their suit for declaration to the effect that the orders of partition passed by Assistant Collector, Ist Grade, Palwal are null and void, is dismissed. The Ld.Ist Appellant Court affirmed the finding of the ld. Trial court, except the modification in the findings of ld. Trial court on issue No. 4, to the extent that it shall stand held up in so far as appellant-plaintiff- Dori Lal is concerned. Aggrieved by the findings of both the courts below, the appellants preferred this regular second appeal. The learned counsel for the appellant, submitted that both the courts below erred in recording findings on Issue Nos. 1 & 3, and did not appreciate the documentary evidence i.e. Ex P/1. The Ld. courts ignored the material fact that the land was reserved for common purposes, and the Charajah Darkhtan entry in regard to which is duly reflected in the Jamabandi for the year 1978-79,Ex.P/2, wherein the entire land was shown as Banjar Qadim. He further submitted that the trial court ignored the undisputed fact that the land in dispute was kept RSA No.3141 of 1985 7 reserved for being used for common purposes by the consolidation authorities and an entry in this regard was reflected in the Wajib-Ul- Arz. Further it is clear from the statement of PW1 Tika Ram that the same was all along used for the said common purposes by virtue of Section 2(g) of the Act and the suit land falls within the definition of 'Shamlat-deh' by virtue of Section 4 of the Punjab Village Common Lands Regulation Act,1961, vests in Panchayat. The Revenue Authorities do not have any jurisdiction to pass any orders of partition of the said land. He submitted that the evidence of the defence witnesses has not been taken into consideration. He stated that both the courts below fell in error, in not taking into consideration the order of the Assistant Collector dated 6.1.1982, (Ex.P1) passed on a review application indicating that the land reserved for Chargah could not be included in the partition proceedings in terms of which impugned orders are not sustainable. On the other hand, learned counsel for the respondents has vehemently opposed the submissions made by learned counsel for the appellants and submitted that the Ist Appellate Court rightly affirmed the findings of ld. Trial court on Issue Nos. 1 & 3. He further submitted that both the courts below have concurrently held in favour of the defendant-respondents Nos. 1 to 5, and have rightly dismissed the plaintiff's suit for declaration, thereby, holding that the orders of partition dated 20.2.1981, and 6.2.1981 passed by Assistant Collector, Ist Grade,Palwal are legal and binding and within its jurisdiction. In support of his submissions, he placed reliance on Deity RSA No.3141 of 1985 8 Pattabhiramaswamy v. Hanymayya and Others, AIR 1959 Supreme Court 57, Rammast Khan and Others v. Amair Mohammad Khan and Others, [Vol.VI-1927] Lahore Law Times,29 . He further submitted that the cross-objections filed by the defendant-respondent are to be allowed in view of the findings of the learned trial court holding that the appellant-plaintiff has no locus standi to challenge the orders of partition. In support of his submissions, he placed reliance on Gram Panchayat of Village Jamalpur v. Malwinder Singh and Others, AIR 1985 Supreme Court 1394. I have heard the learned counsel for the parties and perused the record with their able assistance. Despite many opportunities granted to the appellant, no substantial question has been framed or filed. As per the findings of the Ld. Ist Appellate Court, the plea of the appellants-plaintiffs that the suit land was reserved for use as Charagah, since the consolidation proceedings, which took place in the village many years ago. This plea was challenged by the respondents- defendants by urging that the land was never reserved for such purpose. In their support, the appellants-plaintiffs have placed on record a copy of the Istimel, Scheme Ex.P1, according to which the suit land was reserved for common purposes. However, the record relating to the subsequent period does not show that the land was used as Charagah. The Ld. Ist Appellate Court lend credence to the plea on behalf of the respondents-defendants that this land was never used for common purposes. The revenue record, copies of which have been placed on RSA No.3141 of 1985 9 record show that the suit land was Banjar Kadim. The counsel for the appellants before the Ld.Ist Appellate Court has not been able to produce any revenue record entry or to invite the attention of the court to any law, rule that the land reserved for common purposes could not be partitioned. The jurisdiction for effecting the partition of the agricultural land exclusively vest in the revenue officer as per provisions of the Act and both the courts below have arrived at a conclusion that as per Section 158 of the Land Revenue Act, the jurisdiction of the civil court is barred in such like matters. The findings of both the courts are based on the documentary evidence produced before it. The Apex Court in number of cases has held that the provisions of Section 100 C.P.C are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first Appellate Court Court is based upon some documentary evidence make it any less a finding of fact. The High Court has no jurisdiction to interfere in second appeal with the findings of fact given by the First Appellate Court based upon an appreciation of evidence. No substantial question of law arises for determination in this regular second appeal. In view of the above, no justification is made out to interfere in the concurrent findings of the courts below. Cross-objections No. 3-C were filed by the respondents against the order of Ld. Ist Appellate Court reversing the findings of RSA No.3141 of 1985 10 Ld.trial court on Issue No.4. The Ld.trial court has correctly appreciated the evidence on record and held that the plaintiffs- appellants had no locus standi to challenge the order of partition and that the land was different from the land in dispute in the present appeal. The regular second appeal fails and is dismissed with no order as to costs. The cross-objections No.3-C of 1986 filed by the respondents stands disposed of accordingly. (JITENDRA CHAUHAN) JUDGE 31.5.2011 MS Note: Whether to be referred to Reporter? Yes/No.