Regular Second Appeal No. 3034 of 2009 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 3034 of 2009 (O&M) Date of Decision: 20.7.2011 Bihari Lal and Another ... Appellants Versus Ram Rati and Others ... Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Rao D.S. Nirban, Advocate for the appellants. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 9096-C of 2009 For the reasons stated in the application, the same is allowed. Delay of 44 days in re-filing of the appeal is condoned. Regular Second Appeal No. 3034 of 2009 The defendants/appellants, having failed in two rounds of litigation, have approached this Court by filing the present regular second appeal. The plaintiffs/respondents had instituted a suit for permanent injunction praying that the defendants be restrained from encroaching upon the suit property, detail and description whereof has been given in paragraph No.1 of the plaint. It was pleaded by the plaintiffs that the suit property was earlier joint between the parties and they, being holders of Regular Second Appeal No. 3034 of 2009 (O&M) 2 half share, had come into possession over the same in the partition proceedings which had concluded upto Financial Commissioner. It was pleaded that an application for partition was filed before the Assistant Collector First Grade titled as “Ghisa Ram etc. v. Bihari etc" and on 23.6.1994, the partition was ordered. The plaintiffs were given suit land, as mentioned in paragraph No.3 of the plaint, measuring 44 kanals 19 marlas and the instruments of partition were prepared by the Assistant Collector Ist Grade, vide order dated 20.3.1995. The present appellants/defendants had filed an appeal which was dismissed on 2.1.1996. Thus, the defendants had no right to interfere in the peaceful possession of the plaintiffs and they be restrained by issuing an injunction not to dispossess the plaintiffs from the suit property forcibly. Upon notice, the defendants had caused appearance and filed a written statement stating therein that the partition proceedings naksha bai was prepared illegally against the possession of each party. The plaintiffs are not in possession of the specific killa numbers, as alleged and thus, they have no concern with the suit property. The trial Court, after completion of the pleadings, had formulated the following issues:- "1. Whether the plaintiffs are owner in possession of the suit property and are entitled to relief of injunction? OPP 2. Whether plaintiff has no locus standi to file the present suit? OPD 3. Whether the present suit is not maintainable in the present form? OPD Regular Second Appeal No. 3034 of 2009 (O&M) 3 4. Relief." The parties to the suit led their evidence. Plaintiff Kanwar Singh himself appeared as PW.1, Mool Chand as PW.2 and various documents were also produced by the plaintiffs, whereas defendant Bihari Lal appeared as DW.2 and one Chandu was examined as DW.1. The trial Court held that naksha bai was prepared by the revenue officials as per document Ex.P1. Mutation Ex.P4 was sanctioned in favour of the plaintiffs and possession of the land measuring 44 kanals 19 marlas was given to them as per the order passed by the Assistant Commissioner Ist Grade, Mohindergarh, on 20.3.1995. The defendants had filed an appeal before the Collector, Mohindergarh, which was also dismissed vide judgment dated 2.1.1996 Ex.P5. Thereafter, they had filed a revision which was also dismissed by the Commissioner, Gurgaon Division, Gurgaon, on 30.5.1996. The defendants had further filed a second revision before the Financial Commissioner, Haryana, which was also dismissed on 17.9.1997. Both the Courts below have held that the partition proceedings had concluded and mutation had been duly sanctioned. The Courts have further held that the jurisdiction of the Civil Court to determine as to whether the partition was rightly effected or not is excluded. In the inter-se litigation between the parties, where the defendants had questioned the partition by saying that the plaintiffs/respondents had been given better land has concluded upto this Court in Bihari Lal and Another v. Ram Rati and Others (Regular Second Appeal No. 3420 of 2009, decided on even date), wherein it was held as under:- “...A perusal of the judgment of both the Courts Regular Second Appeal No. 3034 of 2009 (O&M) 4 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...” Thus, the trial Court had rightly held that the plaintiffs are owners in possession over the suit property and are entitled to injunction. This finding has been affirmed by the lower Appellate Court by holding that in pursuance to the partition proceedings which had culminated as per DDR No. 430 dated 10.6.1996 Ex.P9 possession of Regular Second Appeal No. 3034 of 2009 (O&M) 5 the suit land was delivered to the plaintiffs. Thus, the plea raised by Rao D.S. Nirban, Advocate, appearing for the appellants, that in pursuance of partition proceedings, the plaintiffs/respondents have not been found in possession of the suit property, has been rightly negated by both the Courts below after appreciating the evidence. Thus, learned counsel for the appellants has failed to formulate any question of law, much less a substantial one, which may warrant interference of this Court. Hence, the present appeal is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge July 20, 2011 “DK”