IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 168 of 1997 Judgment reserved on 1.3.2011 Decided on: 7 .3.2011 Sh. Balbir Singh ……..Appellant Versus Shri Chuni Lal and others ……Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Neeraj Gupta, Advocate. For the respondents : Ex parte. ____________________________________________________ SURINDER SINGH, J The present regular second appeal filed by the plaintiff was admitted on the following substantial question of law:- 1. Whether the lower appellate Court has erroneously applied the provisions of Section 171 of the H.P. Land Revenue Act by ignoring Section 37 and 46 of the said Act, thereby erroneously applying the ratio of the judgment of the Full Bench to the facts of the present case? 2. The factual matrix giving rise to the present appeal can be summed up thus. The plaintiff/appellant had filed a suit against the predecessor-in-interest of the defendants/respondents (hereinafter referred to as the ‘defendants’), seeking Whether reporters of the Local papers are allowed to see the judgment? yes - 2 - declaration to the effect that the order of partition made by the Assistant Collector First Grade, Jogindernagar dated 6.6.1988, directing the partition of the joint land between the parties as null and void and not binding on the rights of the plaintiff. Consequently, defendants were sought to be restrained from getting the land partitioned. 3. In fact, Shri Dev son of Jogi was the predecessor-in-interest of the defendants. He had filed application before the Assistant Collector against the co-sharer, including Ruldu the predecessor-in- interest of the plaintiff seeking partition of the joint holding, i.e., the suit land; which was allowed vide his order dated 6.6.1988. After the death of Ruldu plaintiff, his son filed the present suit on the ground that on 4.6.1989 he came to know about the said order of partition having been made by the Assistant Collector, Jogindernagar. On going through the impugned order, he precisely found the following infirmities therein:- (a) That the impugned order was based on conjectures and surmises and hence not sustainable in the eyes of law. (b) That highly illegal procedure was adopted for passing the impugned order. The late father of - 3 - the plaintiff was never provided with an opportunity to file his reply to the said proceedings and thereafter, conduct the same in accordance with law. (c ) That by the impugned order, the respective possession of the parties was ordered to be disturbed e.g. the piece of land ( a part of suit land) bearing khasra No. 1175 was ordered to be allotted to Shri Dev defendant No. 1 whereas it had been in the possession of the plaintiff and other legal heirs of his father. (d) That the mode of partition was illegally and wrongly drawn and now it is being given effect. (e) That the impugned order is illegal on other factual andlegal grounds 4. The defendants offered strong resistance to the suit filed by the plaintiff and questioned the locus-standi of the plaintiff to file the suit and also its maintainability, cause of action, estoppel viz-a-viz the non-joinder and mis-joinder of necessary parties. On merits denied the averments made in the plaint. It is contended that the land in the suit was partitioned with the consent of the plaintiff’s father who was a co-sharer. His statement was also recorded to this effect by the revenue officers and - 4 - the suit was filed by the plaintiff only to harass and delay the proceedings of the partition. 5. In replication the plaintiff controverted the plea taken by the defendants. However, reiterated the even paras of the plaint. 6. On the pleadings of the parties, learned trial court framed the following issues:- (i) Whether the order of the partition passed by the Assistant Collector Jogindernagar dated 6.6.1988 is illegal as alleged? OPP (ii) Whether the suit is not maintainable in the present form? OPD (iii) Whether the plaintiff has o locus standi to file the suit? OPD (iv) Whether the plaintiff has no cause of action to file this suit? OPD (v) Whether the plaintiff is estopped from filing the suit by the act and conduct of his father? OPD (vi) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD. (vii) Relief. 7. After the complete trial, learned trial Court answered all the issues in favour of the plaintiff as such the suit was decreed. 8. In appeal, defendants before the first Appellate Court took up only point of assumption of jurisdiction by the Civil Court on the facts pleaded - 5 - by the plaintiff on the ground that the suit of the plaintiff was barred by virtue of Section 171 of the H.P. Land Revenue Act and in view of Chunia Devi versus Jindu Ram (1991( 1 Sim. L.C. 223 (FB) judgment delivered by the Full Bench of this Court while interpreting the provisions of H.P. Land Revenue Act, has held that the civil Court will have no jurisdiction in a case arising out of an order made by a competent authority under the H.P. Land Revenue Act, 1954 unless such a matter falls within the ambit of Section 37 (3) or Section 46 of the Land Revenue Act. The learned first Appellate Court took notice of sub Section 2 of clause XVII of Section 171 which specifically excludes the jurisdiction of Civil Court in respect of claim of partition of any estate or any question connected therewith or arising out of proceedings for partition not being a question as to title in any of the property of which partition is sought. 9. Further on examination of the record, learned first appellate Court held that the defendants had admitted the title of Shri Dev predecessor-in-interest of the defendants qua the suit land in his capacity as a co-sharers and the objections as enumerated above taken in the suit by - 6 - no stretch of imagination raises any question of title which were required to be settled by the Civil Court. Thus applying the judgment of the Full Bench aforesaid that there was no breach of the fundamental procedure committed by the revenue Court held that Civil Court had no jurisdiction to try and entertain the dispute and the proceedings regarding the partition and it did not fall within the ambit of Section 37 or 46 of the Act. As such the appeal of the defendants was allowed and the judgment and decree passed was set aside. 10. Shri Neeraj Gupta, Advocate, for the appellant had made strenuous efforts to point out that the Revenue Officer had adopted a wrong approach in deciding the application for partition as the plea with respect to question of title had arisen before him and he wrongly sent it to the S.D.O. (Civil) for deciding the same which is an error in adopting the fundamental procedure. 11. I have examined this point also. But in fact, the application for partition was moved before the Assistant Collector first Grade. The perusal of order Ext.P2 reveals that although he had sent the matter to the Assistant Collector first Grade S.D.O. (Civil), for the purpose of deciding the question of - 7 - title in his capacity as Assistant Collector Ist Grade but no orders were passed by him rather the matter was remitted back to him for its decision. This order was unsuccessfully assailed before the Collector and also before the Division Commissioner by way of filing revision by the predecessor-in-interest of the defendants. The Divisional Commissioner held that the application for seeking the partition of the joint holding was rightly filed by the predecessor of the defendant and no question of title had arisen in the present case. 12. Further I find that the field staff of the Revenue Agency had effected the partition of the spot as per mode of partition. The defendants did not raise any objection before the field Kanungo rather agreed for the partition as done on the spot and also on perusing the record of the field Agency, confirmed the partition vide his order dated 6.6.1988 and recorded the statements Ext. A/3= D1 of Sita Ram and Ext. A/4 of Ruldu Ram, predecessor-in- interest of the plaintiff. Therefore, against the aforesaid back ground, I do not find any mis- appreciation of evidence and law in the instant appeal. No breach of fundamental procedure has been committed in the proceedings before the - 8 - Revenue Officer and the lower appellate Court has rightly applied the provisions of Section 171 of the H.P. Land Revenue Act, the provisions of Section 37 and 46 of the Act are not applicable in view of the specific provision contained in sub Section 2 clause XVII of Section 171 of the Act. As such the appeal sans merit and is accordingly dismissed with costs. March 7, 2011. (Surinder Singh), (cm) Judge.