IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.25 of 1996. Judgment Reserved on:12.08.2008 Date of decision: 25.08.2008. Smt.Bhekhalu Devi …Appellant Versus Smt.Ram Ditti & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Ms.Charu Gupta, Advocate. For the Respondents: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the defendant against the judgment and decree of the learned Additional District Judge, Kullu in an appeal preferred by the plaintiff-respondent against the judgment and decree of the learned Senior Sub Judge reversing the judgment and decree in favour of the appellant and dismissing the suit of the plaintiff who had challenged Ex.P-1 order of the Assistant Collector Ist Grade, Kullu, dated 5.5.1989 as affirmed by the Collector vide Ex.P-2 rejecting the claim of the appellant for trying the disputed question of partition as a title suit. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The plaintiff approached the trial Court on the allegation that the suit land comprised in Khata Khatauni No.108/278, Khasra No.3538, measuring 15-14 bighas, as entered in Jamabandi for the year 1986-87 of Phati and Kothi Mandalgarh, Tehsil and District Kullu, H.P., is recorded in the joint ownership and possession of the plaintiff (respondent herein) and the defendant (appellant herein). She pleaded that defendant No.1-appellant, Smt.Bhekhalu, filed an application before the Assistant Collector Ist Grade, Kullu for partition. Two other applications seeking partition of the joint land of the parties and other co-sharers were also filed but withdrawn by her. In these proceedings, the plaintiff raised a question of title on the ground that there was a private partition between the parties and suit land bearing 3-0-0 bighas was allotted to the plaintiff as her share and she is in exclusive possession of this land and had spent a sum of more than Rs.one lac on planting of a fruit orchard of apples and other fruit bearing trees which had reached the fruit bearing stage and were generating income. The Assistant Collector Ist Grade instead of adopting the procedure prescribed by law decided the partition proceedings in a summary manner vide Ex.P-1 against which an appeal was preferred by the plaintiff before the Collector who vide his order dated 8.3.1991 (Ex.P-2) dismissed it. She pleaded that the order was illegal 3 and without deciding the question of title, partition proceedings could not have been continued. This claim was contested by defendant No.1, appellant herein, on the ground that there was no private partition of the suit land which is joint and that the orders passed by the Assistant Collector and the Collector Ex.P-1 and Ex.P-2 respectively are legal and in consonance with law. The issue, which was settled, clearly indicates that it is only defendant No.1, appellant herein, who was resisting the suit while other two defendants did not contest, save and except defendant No.3, who claimed ownership on this land by adverse possession. Defendant No.2 admitted the entire claim of the plaintiff. The pleadings of the parties on record also show that contest was by defendant No.1 only. The trial Court disposed of the crucial and foundational issue namely; “Whether the order dated 5.5.1989 passed by the A.C.Ist Grade, Kullu is null and void and not binding on the plaintiff as alleged? OPP”, in a very cursory manner holding that: “No doubt, the ld. counsel for the plaintiff contended that the A.C. Ist Grade refused to decide the question of title nor he referred the parties to the civil court and thus, the question of title remained undecided and unless it is decided the partition proceedings 4 cannot proceed further. This contention of the ld. counsel does not hold good keeping in view the contents of the order of A.C. Ist Grade, which, clearly shows that he made necessary inquiries by recording the evidence of the parties and deciding the question of title accordingly and thus, while deciding this question of title, he acted as a Civil court. Once the question of title having been decided by the A.C. Ist Grade, the parties cannot re-agitate that question of title in the civil court as has been sought for by the plaintiff in this suit.” At the outset, all that can be said is that not only has the Court treated the issue in a cursory manner but has totally ignored the provisions of law applicable without even referring to the bare provisions of the Act. The determination shows a total lack of understanding of the law applicable to the facts. To say that the finding if it can be termed as such is conjectural would be stating the obvious. The other issues were also disposed of in a similar manner / fashion by the learned trial Court. In an appeal preferred by the plaintiff before the learned Additional District Judge, the judgment and decree was set aside by the learned Court holding that the provisions of Section 129 of the H.P. Land Revenue Act, 1984, (hereinafter 5 referred to as the `Act’) had not been complied with and that the matter had been dealt with in a very cursory manner. The decree of the learned trial Court was set aside and the suit of the plaintiff was decreed, as prayed for. Learned counsel appearing for the appellant has urged four grounds for the decision of this Court. In the first question namely, the questions of law formulated at the time of admission of the appeal, which are: “a. Whether the Civil Court can act as a court of appeal to sit over the orders of the Revenue Authorities exercising the powers under the H.P. Land Revenue Act for partitioning the joint land and hold the orders of competent officer duly confirmed in appeal to be illegal and not binding? b. Whether mere raising the plea of private partition and improving the land would amount to raising a question of title which oust the jurisdiction of the Revenue Officers under the provisions of H.P. Land Revenue Act to proceed with the partition proceedings? c. Whether the presumption attached to the revenue record is rebutted merely on account of the fact that the plaintiff-respondent claim to have planted orchard over the joint land, 6 can the plea of private partition without any document or other revenue entries evidencing the said fact be accepted to hold that the revenue officer ordering the partition ought to have referred the said matter being question of title to the civil court? d. Whether the suit of the plaintiff- respondent was not maintainable in the form challenging the order of the revenue officer passed in exercise of powers under said enactment? Is such suit barred under the provisions of the Specific Relief Act? Learned counsel urges that the Civil Court does not have any jurisdiction for entertaining the case as it is clearly barred by the provisions of Section 171, sub-section (2), clauses xvii and xviii of the Act. Learned counsel submits that partition proceedings are governed by Chapter-(IX) of the Act which is a complete Code and the jurisdiction of the Civil Court is ousted. Question (a) and (b): The first two questions as formulated are taken up for discussion together since they are interlinked. The submission made by the learned counsel cannot be accepted. Chapter-(IX) of the Act, comprises of Sections 122 to 138, deals with partition proceedings. The crucial and important 7 point is that the Act itself by Section 129 confers jurisdiction both on the revenue officers and the Civil Court to adjudicate matters in the situation as envisaged therein. It provides:- “129. Disposal of questions as to title in property to be divided.-(1) When there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such a Court (2) Where the Revenue Officer himself proceeds to determine the question, the following rule shall apply, namely- (a) if the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as a Revenue Court under the provision of [law for the time being in force]. (b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court, and he shall record a judgment 8 and decree containing the particulars required by the Code of Civil Procedure to be specified therein. (c) An appeal shall lie from the decree of the Revenue Officer under clause(b) as though that decree were a decree of a Subordinate Judge in an original suit; (d) Upon such an appeal being made, the District Court or [High Court] as the case may be, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal; (e) From the appellate decree of a District Court upon such an appeal a further appeal shall lie to the [High Court] if such a further appeal is allowed by the law for the time being in force.” It is trite that the provisions of statute have to be construed harmoniously so that the Act becomes workable and not so as to create any conflict between its provisions. Sub-section (1) of Section 129 clearly states that the question of title will have to be determined by a competent Civil Court or the Revenue Officer will himself act as though he were 9 such a Court. Sub-section (2) is clear and mandatory in nature providing therein that if the question is one over which a Revenue Court has jurisdiction, the Revenue Officer has to proceed under the provisions of law for the time being in force, and for the determination of title, he has to convert himself into a Civil Court. The order passed on the question of determination of title is to be treated as a decree of subordinate Judge in an original suit and appeal-able to the District Court or the High Court as provided by sub-section-“d”. From an appellate decree of the District Judge, a second appeal lies to the High Court. Ex.P-1, the order passed by the Collector clearly notices that a question of title has been raised regarding partition in which it was asserted by the plaintiff that the land has been partitioned and the claim is for partial partition as two applications had already been filed by the defendants for partition which were not pursued and were withdrawn by them; the plaintiff had made considerable improvements on the land by planting an orchard. Ex.P-2, which is the appellate order, is bereft of any substantive reasoning. It only affirms the decision taken by the Collector without in any manner attempting to ascertain as to whether grievance made by the plaintiff-respondent required 10 adjudication by the Civil Court or by the revenue officer acting as Civil Court. Surely, if there was a family partition as pleaded by the plaintiff, a question of title was being raised for which procedure under Section 129 had to be followed and not a summary disposal as has been resorted to by the Assistant Collector Ist Grade. The proceedings of the Assistant Collector Ist Grade placed on the file clearly show that he has acted in a cursory manner. Learned counsel for the appellant referred to a decision of the Punjab & Haryana High Court in Daya Singh vs. Ajaib Singh, 1979 P.L.J. 369, holding that where a Revenue Officer rightly or wrongly concludes that no question of title is involved he need not follow the procedure envisaged for determining title. The learned Judge in that case, did not follow the precedent cited before him, namely, Ram Gopal and Others vs. The State of Punjab and Others, 1965 P.L.R. 1102, Tirath Ram and others vs. Mt.Nihal Devi, A.I.R. 1931 Lah.664, Bachan Singh vs. Madan singh and others, No.61 Punjab Record 1897, and Ata Muhammad Khan and others vs. Arjan Singh and another, No.72 Punjab Record 1896, brushing them aside by holding that these decisions are of no help to the petitioner therein. I am unable to persuade myself that this lays down the correct proposition of law. Learned counsel also places reliance on the 11 judgment of Punjab and Haryana High Court in Darbara Singh and Another vs. Gurdial Singh and Another, 1994 P.L.J. 25, holding that private partition has to be reflected in the revenue record and till then, there is no need to determine the question of title. With respect I am unable to persuade myself to accept this precedent. If the partition is already reflected in the revenue record then where is the need to determine the question of title as the revenue record itself is complete. What is the need of a party to approach the revenue authorities for partition in such a case. This remains unclear. In Ram Gopal and others vs. The State of Punjab and others, 1965 The Punjab Law Reporter, 1102, while construing the provisions of Section 117 of the Punjab Law Revenue Act, the Court held: “4. … … … … … It is clear from all these decisions that the word “may” in section 117 of the Punjab Land Revenue Act has been construed to mean “must” when a question of title is raised in any of the properties of which partition is sought. It would also seem that the word “may” has been used not because there is any option given to the Revenue Officer to carry on partition without the decision of the question of title but because there are two alternative courses suggested by the Legislature for him for decision of that question.” 12 To similar effect is the Full Bench judgment of the Punjab and Haryana High Court in Ajit Singh vs. Smt.Subaghan and others, AIR 1970 Punjab and Haryana 93, where the Court held that if in proceedings under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, the question cannot be decided by the officer so vested with powers under the Act, recourse must be had to Section 117 of the Punjab Revenue Act, 1887, to decide question of title with respect to partition proceedings. These observations were made in the context of whether the High Court could adjudicate such question in writ jurisdiction under Article 226 of the Constitution of India. Learned counsel also relies upon the judgment of this Court in State of Himachal Pradesh vs. Sandhya Devi, 2003(1) Cur.L.J.(H.P.) 314, holding that Section 163 of the H.P. Land Revenue Act is a complete Code and the Civil Court has no jurisdiction to determine the matters covered by that provision. There is no dispute to this proposition as the question of title / adverse possession involved in ejectment proceedings has to be considered by the revenue officer by converting himself into a Civil Court. This does not mean that he has summary power of ejectment and he can treat the matter as such. On a reading of Chapter-(IX) of the Act, the only conclusion which can be arrived at is that 13 whenever question of title is involved, it is for the revenue officer himself or for the Civil Court to determine such question of title. Sub-section (2) has a salutary purpose and that is to ensure that a fair and proper procedure is followed and not a summary procedure which will deprive the particular party of his right to establish his title to the land. The very fact that such order becomes appeal-able as a decree of subordinate Court to the District Judge and thereafter to the High Court shows the sanctity attached to these proceedings by legislative intent and that it is a complete Code ensuring fair and impartial trial in the matter. On a harmonious construction of the provisions of Sections 129 and 171 it cannot be said that the jurisdiction of the Civil Court is excluded. It is also well settled by now that even where such jurisdiction is excluded, the legality of an action can be adjudicated by a Civil Court. Without going to this aspect of the matter, all that need be said is that the Act itself contemplates such adjudication either by the revenue officer or by the Civil Court. The officer is not vested with summary powers to decide such questions, but to refer the question or deciding it as a Civil Court himself. The word “may” in Section 129 of the Act has to be considered as “shall” as held by the Punjab and Haryana High Court in Ram Gopal’s case. The record of this case shows 14 that no such procedure was followed. Surely, as held / argued that if there was a partition, it had to be recorded in the revenue record; there was no occasion for the parties to have approached the revenue authorities for partition again. The question begs itself. From the record I do not find that the provisions of the law have been followed. Both these questions are, therefore, decided against the appellant. Question-(c) On the question as to whether presumption attached by revenue record is rebutted on account of the fact that the respondent-plaintiff has claimed parity for planting of orchard on the land, all that need be said is that the revenue record can be used for collateral purposes, but cannot form the sole basis to oust the plaintiff from claiming or establishing his/her title to the land. As I have held, both Ex.P-1 and Ex.P-2 are absolutely cursory and in violation of the mandatory provisions of Section 129 of the Act. The revenue record as urged cannot found the basis to deny the plaintiff to establish his title to the suit land. In Baleshwar Tewari (Dead) by LRs. And Others vs. Sheo Jatan Tiwary and Others,(1997)5 SCC 112, Supreme Court held: “15. … … … … Entries in Revenue records is the paradise of the patwari and the 15 tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries.” The plaint shows that the plaintiff, respondent herein, is an illiterate lady and cannot be expected to chase the revenue officer(s) for getting correction / family arrangement settling partition disputes recorded in revenue papers. The question of title flowing from possession claimed in a binding private partition proceedings is a question of title to be determined under Section 129 either by the revenue officer acting as a Civil Court or parties being referred to a Court of competent jurisdiction. This question is also answered against the appellant. Question-(d): This question can be disposed of by holding that the revenue officer failed to exercise jurisdiction vested in him under Section 129 and assuming jurisdiction not so vested in him. When the question of title was raised the revenue officer was duty bound to have referred the matter to a Civil Court or to have determined the question himself acting as a Civil Court. He could not dispose of the case in a cursory manner bye-passing the statutory provisions of law. Reading Section 1 of Chapter-IX and 16 more especially Section 129 of the Act with Section 171, I hold that the jurisdiction of the Civil Court is not barred. No provision of the Specific Relief Act has been brought to my notice which would bar the cognizance of the suit by a Civil Court. This appeal is accordingly dismissed. There shall be no order as to costs. August 25, 2008. (Dev Darshan Sud) (aks) Judge.