IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 224 of 2000 with CMP No. 346 of 2006. Judgement reserved on: 11.5.2010. Date of decision: 5.7.2010. Gian Chand ….. Petitioner. Vs. Braham Dass …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : M/s Bhuvnesh Sharma and Ramakant Sharma, Advocates. For the Respondent : Mr. K.D.Sood, Advocate. Kuldip Singh, Judge. This revision is directed against the order dated 23.5.2000 passed by learned Sub Judge (II), Hamirpur in Execution Petition No. 54/93 rejecting the application of decree holder for passing final decree in Civil Suit No. 36 of 1991 of the court of learned Sub Judge (II), Hamirpur. 2. The facts in brief are that in Civil Suit No. 36 of 1991 preliminary decree was passed on 7.5.1993 by learned Sub Judge Ist Class (II), Hamirpur in favour of the petitioner, who filed the suit for partition regarding the land comprised in khasra No. 81 measuring 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… kanal 9 marlas and khasra No. 80 measuring 1 kanal, as per jamabandi for the year 1985-86. 3. The decree holder filed an application for passing final decree. The respondent in the reply has submitted that he had filed an appeal against the decree, which was pending before the learned District Judge, therefore, pending decision of the appeal, further proceedings be stopped. The land is joint of the parties as per revenue record, but with the consent of the petitioner the respondent had constructed his abadi and in lieu thereof land had been given to the petitioner. The appeal was also pending before the Settlement Officer (Consolidation), Hamirpur regarding the land in question. The Petitioner filed rejoinder and reiterated his case. 4. On 1.6.1994, the Executing Court allowed the application for making preliminary decree as final and appointed Bakshi Ram, Naib Tehsildar (Retired) as Local Commissioner, who submitted his report dated 15.7.1994 and had shown his inability to partition the land in view of pendency of appeal of respondent under Section 30(3) of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 (for short, the Act) before the Settlement Officer, Hamirpur. It appears the Executing Court on 6.8.1994 had again directed the Local Commissioner to submit report, who submitted his report dated 16.10.1994 and partitioned the land on the spot to which petitioner agreed but respondent did not agree by taking the plea that his appeal is pending under Section 30(3) of the Act. The Local Commissioner ultimately reported that suit land has been partitioned on the spot by identifying and fixing the boundaries. …3… 5. The respondent filed objections dated 31.12.1994 to the report of Local Commissioner and submitted that he has occupied the entire land with the consent of the petitioner and raised construction thereon and planted fruit trees. The petitioner has been given share in lieu of it over which the petitioner has constructed a house. He has submitted that case is pending before the Settlement Officer (Consolidation). The court has no jurisdiction in view of pendency of case before the Settlement Officer. The Local Commissioner has not demarcated the spot and fixed the boundaries. 6. The petitioner filed reply to the objections. It was submitted that the Local Commissioner has partitioned the land. The remaining objections were also denied. The respondent filed another objections dated 6.3.1997 and submitted that Settlement Officer (Consolidation) has decided the appeal on 1.9.1995. The suit was filed after the commencement of consolidation proceedings. As per order dated 1.9.1995 of Settlement Officer the entire land has come to the share of respondent. The execution has become infructuous. The petitioner filed reply dated 7.5.1997. It has been submitted that Director has stayed the order dated 1.9.1995 of the Settlement Officer. In view of preliminary decree of the court, the order of Settlement Officer dated 1.9.1995 is meaningless. The Settlement Officer has acted beyond his jurisdiction. 7. The learned Executing Court in the impugned order has held that execution petition has become infructuous. The suit land has already been partitioned as per order dated 1.9.1995 Ex. R-3 of the Settlement Officer. The petitioner had filed an appeal before …4… Additional Director (Consolidation) against the order dated 1.9.1995 and the Additional Director (Consolidation) had directed both the parties to maintain status quo over the suit land. The executing court has held that the suit land has already been partitioned by the Consolidation Department, therefore, the court has no jurisdiction to entertain the suit or any other proceedings in view of Section 57 of the Act. The learned executing court has also held that such type of objection is permissible, the execution is not maintainable, it has become infructuous and dismissed the execution petition on 23.5.2000. 8. The respondent has filed CMP No. 346 of 2006 and has placed on record order dated 1.9.1995 of Settlement Officer, copy of order dated 21.9.2000 of Additional Director (Consolidation) modifying the order dated 1.9.1995, copy of order dated 3.8.2001 of Director of Consolidation affirming the order dated 21.9.2000. The order dated 20.11.2001 in CWP No. 1197 of 2001 filed by the respondent and copy of order dated 6.3.2002 in CWP No. 19 of 2002 filed by the petitioner have also been placed on record. The respondent in the application has prayed that the facts stated in the application may be considered while deciding the revision petition. The petitioner has filed reply to this application and has submitted that the order passed by the Settlement Officer has been partly modified by the Addl. Director of Consolidation and the Director (Consolidation) has affirmed the order of Additional Director (Consolidation). The respondent has been allotted the suit land abutting the road ignoring the claim of the petitioner. The abadi land …5… is required to be partitioned by the civil court and not by the consolidation authorities. 9. The learned court below after noticing Section 57 of the Act has held that the suit land shall be partitioned between the parties by the Consolidation Department, execution is not maintainable which has become infructuous. In other words, the court below has held that in view of Section 57 of the Act, it has no jurisdiction and the jurisdiction lies with the consolidation authorities under the Act to partition the land. On 1.6.1994 the court below had allowed the application of the petitioner for making preliminary decree as final. The Local Commissioner as per report dated 16.10.1994 had partitioned the land on the spot by identifying and fixing the boundaries. Thus not only the preliminary decree was made final by the court below, but the local commissioner had also partitioned the suit land on the spot by identifying and fixing the boundaries. The step left in the execution was to consider the report of the local commissioner by the court below and to pass appropriate order for rejection or acceptance of the local commissioner report. The court below, however, in the impugned order has taken the view that it has no jurisdiction under Section 57 of the Act, and, therefore, ordered that the execution petition has become infructuous. 10. The impact of Section 57 of the Act on the jurisdiction of the civil court has been considered in Shri Lajpat Rai (deceased) through his L.Rs. Smt. Maya Devi and others vs. Smt. Taro Devi and others 1999 (1) SLJ 511. In that case, in fact four appeals were decided by the then Hon’ble Chief Justice D. Raju. In RSA Nos. 173 …6… and 174 of 1990 in Shri Lajpat Rai (supra), the grievance was made against the order passed by the consolidation officer and Director of Consolidation exercising the powers of State government. The learned trial Judge while declaring the consolidation proceedings and the entries made to be illegal passed a decree declaring that the plaintiff is the owner of the suit land. The appeals were heard together on account of a common question raised in them as to the competency and the authority of the civil court to deal with the said claim and grant relief in favour of the plaintiff in the teeth of a bar engrafted under Section 57 of the Act. The then the Hon’ble Chief Justice after noticing several judgements including Badri Lal and others vs. Jai Kishan and others 1972 SLJ HP 301 has held as follows:- “…….. On a careful perusal of the reasoning of the Division Bench, I am unable to agree with the learned counsel for the appellants that this decision lends and support to the claim of the learned counsel in respect of the bar of jurisdiction of the Civil Court to go into the matter……….” It was further held as follows:- “Consequently, the view taken by the Courts below that the Civil Court’s jurisdiction is not ousted in the matters of the nature and that there was no impediment to proceed with the trial of the suit and adjudicate the issues and grant relief, cannot be said to be bad in law. On the other hand, the said view taken by the Courts below is in quite conformity with the binding legal position. The contention raised on behalf of the appellants to the contrary, therefore, fails and shall stand rejected.” …7… 11. The record of Civil Suit No. 36 of 1991 has also been perused. The respondent in the written statement had pleaded that the court has no jurisdiction to try the suit. In that suit, DW 1 Braham Dass in his statement had stated that consolidation was done in the year 1985 and appeal was pending. In presence of objection of jurisdiction of respondent, which was taken by him in the suit, the suit of the petitioner was decreed. CWP No. 1197 of 2001 and CWP No. 19 of 2002 have been decided by a common judgement dated 15.3.2010. The order of Director (Consolidation) was quashed and set-aside. The statutory authority under Section 54 of the Act was directed to take up the case again for decision afresh in accordance with law. The interim orders were vacated. In these circumstances, the respondent cannot take benefit of orders dated 20.11.2001 passed in CWP No. 1197 of 2001 and order dated 6.3.2002 passed in CWP No. 19 of 2002. In view of judgement dated 15.3.2010, the parties have been relegated to the position as ordered by the Additional Director (Consolidation) on 21.9.2000. As per Shri Lajpat Rai (supra), civil court has jurisdiction to proceed with the matter in the teeth of Section 57 of the Act. The court below has erred in closing the execution by observing that in view of Section 57 of the Act, the court has no jurisdiction and execution is not maintainable and, therefore, impugned order is liable to be set-aside. 12. No other point was urged. 13. The result of above discussion, the revision petition is allowed, order dated 23.5.2000 passed by learned Sub Judge (II), Hamirpur in Execution Petition No. 54/93 is set-aside. The court …8… below is directed to proceed with the case in accordance with law. The parties through their counsel are directed to appear before the court below on 2.8.2010. The Registry is directed to send the record back to the court below so as to reach well before the date fixed. CMP No. 346 of 2006 is also disposed of. No costs. July 5, 2010. ( Kuldip Singh ), (Hem) Judge.