Punjab-Haryana High Court
Fauja Singh vs Pritam Singh And Anr. on 29 January, 1993
Equivalent citations: (1993)104PLR335
JUDGMENT A.S. Nehra, J.
1. This appeal is directed against the judgment and decree dated 16.1.1988 passed by the District Judge, by which the appeal filed by the plaintiff-appellant was dismissed and the judgment and decree passed by the Additional Senior Sub Judge on 7.3.1986 dismissing the suit of the plaintiff, was upheld.
2. Plaintiff filed a suit against the defendants for, separate possession of 1 kanal of abadi land out of land measuring 4 kanals 10 Marias situated in the revenue estate of Village Nangal Bihalan, Hadbast No. 226 Khataunies No. 38.39,40 and 41 bearing Khasra Nos. 16R/5/4 min, 17R/1/12 min, 16R/5/4 min and 17R/J/1/2 min as entered in the jamabandi forthe year 1980 8) by partitioning the said land by metes and bounds. It was averred in the plaint that the plaintiff and defendants are the joint owners in joint possession of the land measuring 4 kanals 10 Marias; that most part of the suit land is under abadi and the remaining part is lying vacant and is not an agricultural land ; that the suit land is also not assessed to land revenue and plaintiff has got 20/90 share of the suit land, whereas defendant No. 1 has 4490th share and the share of defendant No. 2 is 26/90th ; that the plaintiff is in possession of the area which is much less than his share, whereas the defendants are in possession of the more area than their share and that the plaintiff is entitled to get his share in the suit land and therefore, he is entitled to get separate possession of his share of the suit land by partitioning by metes and bounds.
3. Defendant No. 1 in his written statement controverted the plaintiff's allegations and alleged that the plaintiff was not in possession of any part of the suit land, therefore, the suit of the plaintiff was not maintainable in the present form. Defendant No. I filed separate written statement. He also controverted the plaintiff's allegations and, inter alia, alleged that the suit property has already been partitioned.
4. On the pleading of the parties, following issues were framed :-
1. Whether the plaintiff is joint owner of the property in dispute. If so, to what share ? OPP.
2. If issue No. 1 is proved in the affirmative, whether the plaintiff is entitled to the separate possession ? OPP
3. Whether the plaintiff is not in possession of any part of the property in dispute ? If so, its effect ? OPD
4. Whether the suit is properly valued for the purpose of Courtjfee and jurisdiction ? OPP
5. Whether the plaintiff has no cause of action to file the present suit ? OPD
6. Whether the land has been partitioned already as alleged in the written statement ? OPD.
7. If issue No. 6 is proved in affirmative whether the order of Collector is illegal as alleged in the replication ? OPP.
8. Relief.
5. Issue No. 1, 2 and 7 were decided against the plaintiff Issues No. 3, 5 and 6 were decided in favour of the defendants Issue No. 4 was treated as preliminary issue and was decided earlier. As a result of the decision on issues No. 1, 2, 3, and 5 to 7, tile suit filed by the plaintiff was dismissed.
6. Learned counsel for the appellant has assailed the findings of the learned lower Courts on issues No. 6 and 7 and submitted that it has been admitted in the written statement filed by defendant No. 1 that there are houses on the land in dispute for the last 20 years, which means for the last 20 years the suit land is not being used as agricultural land, but the same is being used as abadi land and that being so, this land could not be partitioned by the Revenue Officers. He has further submitted that the order of partition passed by the Revenue Officer in respect of the suit land, copy of which is Exhibit D-ll is illegal In support of his arguments, learned counsel for the appellant has relied upon Khushal Singh v. Gurdip Singh, 1987 P. L. J. 369.
7. Correctness of the decision given by the learned Single Judge in Khushal Singh's case (supra) was doubted. Therefore, this appeal was admitted and referred to a larger Bench.
8. The land has been defined in Section 4 of the Punjab Tenancy Act, 1887, which reads as under :-
"Land" means land which is not occupied as the site of any building in a town or village and is occupied, or has been let for agricultural purposes or for purposes subservient to agriculture, or pasture, and includes the sites of buildings and other structures on such land."
"Estate" has been defined in Section 3 of the Punjab Land Revenue Act, 1887 (hereinafter called the Act), which reads as under:-
"(1) "estate" means any area --
(a) for which a separate record-of-right has been made ; or
(b) which has been separately assessed to land revenue, or would have been so assessed if the land-revenue had cot been released, compounded for or redeemed ; or
(c) which the State Government may, by general rule or special order, declare to be an estate ;"
9. In Section 112 of the Act restrictions and limitations have been placed on partition, Section 112 reads as under :-
"Notwithstanding anything in the last foregoing section'--
(2) partition of any of the following properties, namely ;
(c) any land which is occupied as the site of a town or village and is assessed to land revenue ; may be refused if, in the opinion of the revenue officer, the partition of such property Is likely to cause inconvenience to the co-sharers, or other persons directly or indirectly interested therein, or to diminish, the utility thereof, to those persons ;"
10. The land, which is part of an estate, cannot be partitioned by the Civil Court in view of Section 158 of the Act, which reads as under :--
"Except as otherwise provided by this Act-
(J) a Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue-officer is empowered by this Act to dispose or to take cognizance of the matter in which the State Government or any Revenue-Officer exercises any powers vested in particular-(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely :--
(xvii) any claim for partition of an estate, holding or any question connected with, or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought ;"
11. It has been held by this Court in Sucha Singh v. Balbir Singh, 1964 P. L. J. 1601, that the land which is part of an estate cannot be petitioner be partitioned by a Civil Court. During the partition proceedings before the Revenue Officer, a co-sharer can raise an objection under Section 112 of the Act that the land which is occupied as the site of a town or village and is assessed to land revenue should not be partitioned because the same is likely to cause inconvenience to the co-sharers and other persons directly or indirectly interested therein. In Khushal ' Singh's case (supra), partition proceedings continued before Tehsildar Dasuya and no objection under Section 112 of the Act was raised by the plaintiff and the land was partitioned by the Revenue officer in accordance with the provisions of the Act. Therefore, Civil suit filed by the plaintiff in Khushal Singh's case (supra) was not maintainable before the civil Court. The judgment of the learned Single Judge in Kushal Singh's case (supra) does not lay down a correct law. The law laid down by this Court in Sucha Singh and Ors. v. Balbir Singh, 1964 P. L. J. 1601 where it has been held that the land which is a part of an estate cannot be partitioned by the civil Court in view of the provisions of Section 158(2) of the Punjab Land Revenue Act, is upheld and the contrary view taken by the learned Single Judge in Khushal Singh's case (supra) is over-ruled.
12. No doubt, if a particular property is a abadi land and does not fall under the definition of land, the revenue authorities have no jurisdiction to partition the same but in this case, there is no evidence to prove that at the time the land in dispute was ordered to be partitioned by the Revenue Officer, it was abadi land and was not agricultural land The order of partition was passed by the Revenue Officer on 22-9-1970, Exhibit Dll. The suit land at that time was entered in the revenue papers and it was assessed to land revenue. So, apparently the Revenue Officer, who partitioned the land, had the jurisdiction to partition the same and as such, the order of partition is valid. Before this order could be held to be invalid, the plaintiff, we think, was required to produce evidence which could show that at the time the order of partition was passed, the suit land was not being used for agricultural purposes, but was being used as abadi land. There is, however, no evidence in this behalf nor any such evidence was referred to by the learned counsel for the appellant. Learned counsel for the appellant-plaintiff has simply tried to press into service the written statement filed by defendant No. 1. No doubt, defendant No. 1 in his written statement alleged that the installations and structures on the suit land raised by defendant No. 1 were existing for the last 20 years, but this averment made by defendant No. 1 was not binding on defendant No. 2 who had raised the plea that the suit land had already deen partitioned. So, qua defendant No. 2, the plaintiff cannot take advantage of any averment made in the written statement filed by defendant No. 1. The plaintiff was required to produce some evidence which could show that at the\time the suit land was ordered to be partitioned, it was no more an agricultural land, but was being used as abadi land. There is, however, no such evidence on the record. That being so it is difficult to hold, simply on the basis of the averments made in the written statement filed by defendant No. 1, that the suit land at the time it was ordered to be partitioned by the revenue authorities, was being used as abadi land. Therefore, the order of partition passed by the Revenue Officer cannot be held to be illegal or invalid.
13. Learned counsel for the appellant next submitted that the partition of the suit land is not completed simply by passing the order of partition by the Revenue Officer. After the order is passed, the instrument of partition should be prepared and only then the partition is completed. He has further submitted that in this case there is nothing to show that the instrument of partition was prepared, so, it cannot be said that the partition was complete. No 'doubt, after the order of partition is passed, instrument of partition is required to be prepared and without that the partition is not complete, but in this case, it cannot be said that the instrument of partition was not prepared. After the order of partition, the instrument of partition was also prepared and the partition of suit land was completed. Therefore, the plaintiff has no right to get the suit land re partitioned from the civil Court. In case the plaintiff was aggrieved by the order of partition, he could have filed appeal or revision before the competent Revenue officer.
14. In view of the above discussion, we find no merit in the appeal and the same is dismissed with no order as to costs.