CR No. 2964 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 2964 of 2011 (O&M) Date of Decision: 3.11.2011 Gurbir Singh & Anr. ...Petitioners Vs. Narinder Kaur & Ors. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Vikas Behl, Advocate, for the petitioners. Mr.S.S.Majithia, Advocate, for the respondents. --- A.N.Jindal, J. Gurbir Singh, the legal representative of Dalbir Singh and Satpal Singh, plaintiffs have alleged that plaintiff No.2 along with defendants No.3 to 7, are the owners in possession of the land measuring 61 kanals 3 marlas, as fully detailed in the head-note of the plaint and also sought perpetual injunction restraining the defendants/respondents (herein referred as the defendants) from dispossessing them from the suit land. They also challenged the order of partition passed by Assistant Collector First Grade, Batala CR No. 2964 of 2011 2 dated 14.3.2006 passed under the the orders of Commissioner Jalandhar Division, Jalandhar dated 20.10.2003. The defendants contested the suit stating that there was no family partition earlier. Alleged memo of partition dated 22.1.1955 was neither executed nor acted upon. The same being illegal, ultra vires, null and void, is inoperative, ineffective qua their rights. No mutation was sanctioned on the basis of alleged memo of partition. Mutation No.1002 was sanctioned much prior to the memo of partition i.e. in the year 1954. After sanctioning the mutation, Avtar Singh sold 19 kanals 1 marlas of land during his life time in favour of Kulwant Singh son of Gurdial Singh and Gurdial Singh also sold land measuring 22 kanals 19 marlas during his life time. In addition, Avtar Singh also gifted the land measuring 12 kanals 19 marlas in favour of his wife Smt.Harjinder Kaur. In this way, the plaintiffs and defendants Nos 3 to 15 had sold the land more than their due share. Plaintiffs and their predecessors-in-interest had full knowledge about the sanctioning of mutation No.1002 in the year 1954. Gurdial Singh and Avtar Singh never challenged the said mutation during their life time hence neither the plaintiffs nor other defendants are left with no right, title or interest in the suit land and they are not in possession of any part of the said land. Bela Singh had got 12/25th share in the suit land. The orders passed by the learned Commissioner dated 20.10.2003 and that of Assistant Collector First Grade, Batala dated 14.3.2006, are quite legal, operative and remains binding for 20 years. Now after the matter stood finalized up CR No. 2964 of 2011 3 to the court of Financial Commissioner and final partition was ordered by the Assistant Collector First Grade, Batala and the possession has been delivered on the basis of the said warrant of possession issued by the Assistant Collector First Grade, Batala. As such Civil Court jurisdiction is barred. The trial court vide order dated 24.12.2008 directed the parties to maintain status quo with regard to the possession over the land in dispute, whereas, the first appellate court dismissed the application vide impugned order dated 3.01.2011 (Annexure P.5). The petitioners have placed reliance on the basis of mutation No.1002 of 1954 and have claimed themselves as co- sharers in the suit land. They have also placed reliance on the memo of partition dated 22.1.1955 which was never acted upon or implemented in the revenue record. As a matter of fact, no actual partition regarding the land in suit took place and the alleged memo of partition was never acted upon in the revenue record; hence on the application filed by the co-sharers, Assistant Collector First Grade ordered partition. Parties continued litigating upto the Court of Commissioner but ultimately Sanad Takshim (order of partition) was issued on 24.4.2006. Partition proceedings remained pending since 5.6.1989 and crossed many hurdles from the court of Assistant Collector First Grade, Batala up to the court of Financial Commissioner, Punjab. Ultimately, Sanad Takshim (order of partition) was also followed by warrant of possession. There is no denying of fact that revenue court could CR No. 2964 of 2011 4 decide the question of title but the revenue court found that there was no debatable or real question of title as such rejected the plea raised by the present petitioners/plaintiffs. Now after having been lost in the revenue courts the plaintiffs filed civil suit on 20.5.2006. In such a situation, jurisdiction of the civil court is barred. It has been observed by this court in the case of Raja Ram alias Rajender Vs. Tehsildar-cum-Assistant Collector, Hissar, 2001 (2) RCR (Civil) 739 as under:- “8. Law does not provide an appeal against the order under Section 121 of the Act, through which the Revenue Officer prepares an instrument of partition after the partition proceedings have been completed. Therefore, the only forum for the petitioner to challenge the partition proceedings was this court exercising the jurisdiction under Articles 226/227 of the Constitution of India, but in order to invoke this jurisdiction, the petitioners should have honestly stated that the order was not an appealable one and that they did not propose to file an appeal.” It was also observed by this court in the case of Nand Singh Vs. Labh Singh 1997 (4) RCR (Civil) 589, that Section 158(1) of the Punjab Land Revenue Act, 1886 excludes the jurisdiction of the Civil Court in any matter which the Revenue Officer is empowered under the Act to dispose of or in which the Revenue Officer exercises any power vested in him. The Collector being a CR No. 2964 of 2011 5 Revenue Officer had the power to determine the question of title and the question having been decided and not challenged in appeal before the District Judge, the jurisdiction of the Civil Court has rightly been held to be barred. I do not find any merit in the contention that in case revenue authorities find that there was question of title then the matter is to be referred to the civil court. The argument does not weigh with the mind of the Court. Revenue Court was equally competent to decide the question of title and could also refer the same to the civil court if there was really such dispute and the matter needed a debate in the depth. In this case, actually, before the revenue court, there was no question of title. Secondly, revenue court finalized the partition and after finalization of the partition, the plaintiffs came to the court to claim the question of title. As is often seen that the parties in possession of the major or valuable portion of the joint property devise various methods to delay the proceedings while raising the variety of objections viz. some co-sharers were not joined; service was not validly effected; the mode of partition was not correct; the revenue officers did not follow the proper procedure and drag the parties seeking partition before the hierarchy of the revenue courts for decades together while raising minor issues and after loosing before the revenue courts, they file the suit before the civil court, resultantly, the party (who is out of possession) remains gazing and rather finds helpless and enjoy their share for which they were entitled to long back. Such practice should be deprecated and the CR No. 2964 of 2011 6 civil court should be hesitant to entertain such suits on hypertechnical defects, except on those which are really of some importance and there arise some substantial question of title badly effecting the rights of the parties. In the instant case also the petitioners after contesting the partition for twenty years knocked the door of the civil court without any serious dispute about the shares in the land. Consequently, the plaintiffs have no prima facie case for the grant of injunction and balance of convenience also does not lie in their favour as the respondents had been able to earn fruits of the land after 22 years of the filing of the application for partition. No grounds to interfere. Dismissed. (A.N.Jindal) 3.11.2011 Judge rp