Himachal Pradesh High Court
Sachin Dogar vs Rattan Dass & Others on 21 June, 2024
Neutral Citation No. ( 2024:HHC:3841 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 62 of 2022 Reserved on: 22.05.2024 .
Date of decision:21.06.2024 Sachin Dogar ....Petitioner Versus Rattan Dass & others ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Petitioner : Mr. Sumit Sood, Advocate.
For the Respondents : Mr. Y.P.Sood, Advocate.
Rakesh Kainthla,Judge The present petition is directed against the order dated 30.11 2022 passed by learned Additional District Judge (CBI) Shimla, District Shimla, (Learned First Appellate Court) vide which appeal filed by the appellant (defendant No.1 before the learned Trial Court) was partly allowed and the order dated 14.07.2021 passed by the learned Civil Judge, Junior Division, Court No.4, Shimla, (Learned Trial Court) was modified. (Parties _________________________
1. Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 2 shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present petition are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking a declaration that the they are the joint owners in exclusive possession of the land comprised in Khewat No. 57, Khatauni No.109-113, Kite-37, measuring 02-53-08 hectare, situated at Mohal Kwalag, Tehsil & District Shimla H.P.,(hereinafter referred to as the 'suit land'). The documents of the private partition and mutation No. 215, dated 29.01.2021 are illegal, null and void and inoperative against the rights of the plaintiffs. The plaintiffs have acquired a title by way of ouster against defendants No. 2 to 4 and transfer of the suit land by registered Sale Deed does not create any right in favour of defendant No.1. A decree of permanent prohibitory injunction for restraining the defendants from dispossessing the plaintiffs from the suit land, changing its nature or creating any charge or lien, on the same and a mandatory injunction directing the defendants to restore the suit land to its original condition in case they succeed in changing its nature during the pendency of the suit was ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 3 also sought. It was pleaded that the plaintiffs and proforma defendants are joint owners in separate exclusive possession of .
the suit land. The suit land was earlier jointly owned by Shaunkia and Chimru. They had entered into an oral family arrangement for better enjoyment and use of the property and were residing separately. Defendant No.2 left the village after the death of Chimru and started residing in her parental home. Defendants No.2 to 4 were never allowed to occupy their share in the suit land.
The plaintiffs are in continuous, peaceful and uninterrupted possession of the suit land. They have become owners by way of adverse possession. Defendants No. 2 to 4 managed to get the suit land transferred in favour of defendant No.1 by way of a Sale Deed.
The Sale Deed does not operate qua the rights of the plaintiffs.
Defendant No.1 filed an application under Section 123 of the H.P. Land Revenue Act for the partition of the land. The mode of the partition was ordered to be prepared on 13.12.2020, behind the back of the plaintiffs. The proper opportunity of hearing was not provided to the plaintiffs by learned AC IIndGrade. The mode of partition was framed on 17.12.2020 without determination of the question of title. Learned AC IInd Grade was not competent to proceed with the mode of partition without the determination of ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 4 the question of the title. Learned AC IInd Grade directed the Field Agency to carry out the field partition as per the mode of the .
partition and submit the report on or before 30.03.2021. The case was taken up for hearing on 09.03.2021 and a reference was made about the partition effected vide mutation No. 215 dated 29.01.2020. Hence, the proceedings were closed. A false document of the alleged partition was prepared by getting the signatures of the plaintiffs on the pretext of the receipt of the record of the partition from the Tehsil Office. A Special Power of Attorney of the plaintiffs purported to have been executed in favour of defendant No.5 is not valid as the plaintiffs never appointed defendant No.5 as their Special Power of Attorney. The procedure adopted by the Revenue Agency isin violation of the provisions of the Land Revenue Act. The plaintiffs never consented tothe partition of the suit land and the mutations were wrongly attested. Therefore, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by defendant No.1 by filing a written statement taking preliminary objections regarding lack of maintainability, the plaintiffs having not come to the Court with ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 5 clean hands, the suit having not been properly valued for the purpose of Court fee and jurisdiction, the suit being bad for the .
non-joinder of necessary parties and the Court having no pecuniary jurisdiction to hear and entertain the present suit. The contents of the plaint were denied on merits. It was asserted that the plaintiffs are strangers to the family of defendants No. 2 to 4 and 8. It was specifically denied that the plaintiffs were in adverse possession or that they became the owners of the suit land.
Chimru had died in the year 1983 and revenue entries were not assailed by any person. No question of title arose before the revenue authorities. The defendant had filed a revenue partition application; however, it was converted into a Khangi Taksim at the request of the plaintiffs. A compromise order was passed and no party can challenge the same. Plaintiffs and other co-owners had given their statements before the revenue official that they had no objection to the partition of the land. The private partition was also admitted in the Special Power of Attorney executed by the plaintiffs and defendant No. 5. The plaintiffs wanted to grab the land allotted to defendant No.1. They also damaged the shed on the spot. The plaintiffs have no concern with the land allotted to defendant No.1. The jurisdiction of the ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 6 Civil Court is barred in view of Section 171 ofthe H.P. Land Revenue Act. Therefore, it was prayed that the suit be dismissed.
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4. A separate written statement taking almost similar pleas was filed by defendants No. 2 to 4. It was asserted that the plaintiffs have alternative and efficacious remedyof filing the appeal and the suit is not maintainable. The plaintiffs cannot challenge the inheritance of the estate of Chimru as they are strangers to his family. The pleadings in support of adverse possession are not sufficient. Therefore, it was prayed that the suit be dismissed.
5. A separate written statement was filed by proforma defendant No. 8 taking almost similar pleas and praying that the suit be dismissed.
6 Application for seeking an ad-interim injunction was filed, which was opposed by the defendants.
7. The learned Trial Court held that the plaintiffs have challenged the legality of the mutation, the agreement dated 28.01.2021, and the Power of Attorney based on which the mutation was attested. They also claimed that they had become the owners by way of adverse possession. The plea that the Civil ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 7 Court does not have the jurisdiction to hear and entertain the present suit was not acceptable. The private partition was not .
affirmed in accordance with Section 135 of the H.P. Land Revenue Act. The mutation was attested as per instruction No. 14.1, which cannot supersede the legal provisions. The parties cannot be permitted to change the nature of the land during the pendency of the suit to defeat the ultimate decree which may be passed by the Court. Hence, the parties were directed to maintain the status quo qua the suit property till the disposal of the suit.
8. Being aggrieved from the order passed by the learned Trial Court, defendant No.1 filed an appeal, which was decided by the learned Additional District Judge (CBI), Shimla, District Shimla (learned First Appellate Court). The learned First Appellate Court concurred with the findings recorded by the learned Trial Court that there was non-compliance with Section 135 of the H.P. Land Revenue Act and the Civil Court had jurisdiction. Serious questions were raised by the plaintiffs which required determination; therefore, parties were rightly directed to maintain the status quo. However, defendant No.1 could not be restrained from alienating or creating any charge over the suit as ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 8 he was a co-sharer; hence, the order passed by the learned Trial Court was modified.
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9. Feeling aggrieved and dissatisfied with the orders passed by the learned Courts below, petitioner/defendant No.1 has filed the present petition. It was asserted that the learned Courts below, have failed to appreciate the material placed before them. It was duly established from the certified copy of the statements given by the plaintiffs before the Revenue Court that they had no objection to carry out the partition. These documents were not considered by the learned Courts below. Therefore, it was prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside.
10. I have heard Mr Sumit Sood, learned counsel for the petitioner/defendant No.1 andMr Y.P. Sood, Advocate, for the respondents/plaintiffs.
11. Mr. Sumit Sood, learned counsel for the petitioner/defendant No.1 submitted the learned Courts below had not properly appreciated the material placed before them. The plaintiffs made the statements before the revenue authorities that they had no objection to carry out the partition as per the family ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 9 arrangement. They were duly served before the revenue authorities and had made the statements during the demarcation.
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They made reckless allegations against the revenue authorities without any foundation. The learned Courts below failed to notice that the Civil Court did not have any jurisdiction in the matter and the remedy of the plaintiffs was to file an appeal before the Revenue Courts; therefore, he prayed that the present petition be aside.
r to allowed and the orders passed by the learned Courts below be set
12. Mr. Y.P. Sood, learned counsel for the respondents/plaintiffs submitted that the jurisdiction of this Court while deciding a petition under Article 227 of the Constitution of India is highly limited. The Court cannot re-appreciate the facts and the present petition does not satisfy the requirements as laid down by the Hon'ble Supreme Court. The question of jurisdiction was rightly negated by the learned Courts below and there is no infirmity in the same. Hence, he prayed that the present petition be dismissed. He relied upon the judgments of the Hon'ble Supreme Court in Garment Craft v.
::: Downloaded on - 24/06/2024 20:31:00 :::CIS 10Prakash Chand Goel, (2022) 4 SCC 181 and the judgment of this Court in Sanjeev Kumar vs. Suman Jain 2022 (3) Shim. LC 1455.
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13. I have given considerable thought to the submissions at the bar and gone through the records carefully.
14. The scope of jurisdiction exercised by the High Court under Article 227 of the Constitution of India was explained by the Hon'ble Supreme Court in Garment Craft (supra) as under:
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217: (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 11 conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, .
this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed :
(SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
15. This judgment was followed by this Court in Sanjeev Kumar (supra).::: Downloaded on - 24/06/2024 20:31:00 :::CIS 12
16. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
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17. The plaintiff sought a declaration that the document of the private partition dated 28.01.2021 and attestation of mutation No. 215 dated 29.01.2021 is wrong and illegal. They asserted that they were not properly served and the private partition was not affirmed as per Section 135 of the H.P. Land Revenue Act. The learned Courts below accepted this submission and held that these facts are sufficient to give jurisdiction to the Court to hear and entertain the present suit.
18. Section 171(2)(xvii) & (xviii) of H.P. Land Revenue Act reads as under:-
"171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. - Except as otherwise provided by this Act -
(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely -
(xvii) any claim for the partition of an estate, holding, or tenancy, 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;
(xviii) any question as to the allotment of land on the partition of an estate holding or tenancy or as to the distribution of land subject by established custom to periodical redistribution, ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 13 or as to the distribution of land revenue on the partition of an estate or holding or a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy."
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19. It is apparent from the bare perusal of the Section that a Civil Court cannot exercise jurisdiction regarding any claim for the partition of an estate or any question connected with or arising out of the proceedings for partition not being a question of title. Therefore, the jurisdiction of the Civil Court to determine the questions arising out of the partition proceedings is barred and the Civil Court is not competent to entertain any suit connected to the partition proceedings or any question arising out of the partition proceedings. This provision was considered by this Court in many cases.
20. In Gopi Chand Vs. Sonam Dass 1998(1) Shimla Law Cases 488, the question was whether the Civil Court had jurisdiction regarding the delivery of possession of the land allotted in the partition. After analyzing the proceedings of Section 171(2)(xvii), it was held by this Court that the Civil Court does not have jurisdiction relating to the partition where such questions can be disposed of by the revenue authorities. It was observed:
::: Downloaded on - 24/06/2024 20:31:00 :::CIS 14"17. The matter with regard to delivery of possession of the land in dispute consequent upon partition ordered by the Revenue Officer falls within the exclusive jurisdiction of such Revenue Officer within the ambit of Section 134 of the .
Revenue Act. Therefore, if the plaintiffs have failed to obtain possession under Section 134 of the Revenue Act, they cannot approach the Civil Court for such relief of possession. The Civil Court has no jurisdiction in view of the provisions contained in Section 171(1) and Section 171(2)(xvii) of the Revenue Act."
21. In Bal Krishan versus Surinder Kumar 2011(1) Shimla Law Cases 312 a civil suit was filed regarding the tampering of the Khataunis. It was held that the dispute regarding the tampering of Khatauni was within the exclusive jurisdiction of revenue authorities and the Civil court had no jurisdiction to entertain the suit relating to the same. The plea that such a suit is maintainable under Section 45 and Section 46 of the H.P. Land Revenue Act was also negated and it was held:-
" 11. The dispute whether there was any tampering in the Khataunis or not fell squarely within the purview of the revenue officers since Khataunishave no records of rights. Therefore, it was the Revenue Courts alone who had jurisdiction to decide the matter. The appeal filed by respondents No. 1 and 2 was dismissed by the Collector and they chose not to challenge the same in further proceedings. The suit filed by them is, therefore, barred in view of the provisions of Section 171 (2) (xviii).::: Downloaded on - 24/06/2024 20:31:00 :::CIS 15
22. In Khalil versus Meena @ Yamin 2016 (2) Himachal Law Reporter 869, the revenue authority proceeded to determine the .
question of title. However, the procedure was not followed and the decree sheet was not prepared. It was held that the plaintiff has to avail of the remedy of appeal and the Civil Suit cannot be filed before the Court. It was observed:-
"12. On the asking of the appellants, the Revenue Officer did proceed to determine the title of the parties in the proceedings for partition pending before him. It being a different matter that he did not follow the procedure nor was any decree sheet prepared by him. But then as has been held by this Court in State of Himachal Pradesh v. Chet Ram, 2000 (3) Shim. L.C. 344 the appellants have a remedy of filing an appeal and not independently assail the order by way of a civil suit. In fact, appellants did prefer an appeal and have to exercise remedies only in accordance with the special statute."
23. In Label Chand alias Albel Chand vs. Smt. Sita Devi 2017 (1) Him. L.R. 44, a civil suit was filed to contend that the best portion was allotted to the defendants by the revenue authorities in the partition proceedings. It was held that Civil Courts do not have jurisdiction to entertain such suits. It was observed:
"Admittedly, the jurisdiction of the civil Court to try and entertain a suit of this nature is barred under Sub Section (1) of Section 171 clause (XVII) and XVIII) of H.P. Land Revenue Act. The remedy available against an order of partition is to file an appeal/revision before the revenue authorities i.e. Collector."::: Downloaded on - 24/06/2024 20:31:00 :::CIS 16
24. In Chamko Devi vs. Mohinder Latest HLJ 2011 (1) HP 101 a civil suit was filed asserting that the inferior quality land was .
allotted to the plaintiff contrary to the mode of partition. It was held that the suit was barred. It was observed:
"16. Now in the instant case, the title of the land is not in dispute. The shareholding is not in dispute. It is urged that in violation of the Mode of partition, poor quality, and less land has been allotted to the plaintiffs. The Courts below have repelled this contention on merits. I see no infirmity in the same. That apart, the jurisdiction of the Civil Court to go into this aspect of the matter is specifically barred. In the instant case, it cannot be said that either there has been a violation of principles of natural justice or any procedural irregularity adopted by the revenue authorities while passing the orders under challenge."
25. The learned Courts below proceeded on the basis that the instrument of partition was not affirmed as per Section 135(3) of the H.P. Land Revenue Act and this was sufficient to confer the jurisdiction upon the Civil Court. This is not acceptable. It was laid down by the Punjab & Haryana High Court in Ajmer Singh v.
Dharam Singh, 2006 SCC OnLine P&H 333: (2006) 2 RCR (Civil) 541:
PLR (2006) 143 P&H 25 that non-affirmation of a partition by the Revenue Officer will not render the same redundant. It was observed:
"15. However, the question which is vehemently argued by learned counsel for the appellant was that such private ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 17 partition cannot be recognized till such time private partition is affirmed by the revenue authorities in terms of Section 123 of the Punjab Land Revenue Act, 1887, (hereinafter to be referred as "the Act"). Reliance is placed .
upon Suba Singh v. Mohinder Singh, 1986 RRR 472: 1983 PLJ 429, Sushil Kumar v. National Insurance Co. Limited, 1986 (1) PLR 458; and Darbara Singh v. Gurdial Singh, 1994 (1) RRR 459: 1994 PLJ 25. Before proceeding further, section 123 of the Act is reproduced below:--
"123. Affirmation of partition privately affected-- (1) In any case in which a partition has been made without the intervention of a Revenue Officer, any party thereto may apply to a Revenue Officer for an order affirming the partition. (2) On receiving the application, the Revenue Officer shall inquire into the case, and if he finds that the partition has in fact been made, he may make an order affirming it and proceed under Sections 119, 120, 121 and 122, or any of those sections, as circumstances may require, in the same manner as if the partition had been made on an application to himself under this Chapter".
16. A perusal of the said provision would show that Section 123 of the Act is a provision for affirmation of partition privately affected. Chapter IX of the Act deals with both situations i.e., where intervention is sought by the revenue authority for the partition of the land and for a situation where the parties effect partition privately. A further reading of section 123 of the Act shows that liberty is given to any party who "may" apply to a revenue officer for an order confirming partition. Sub-section (2) contemplates an enquiry to find out whether the partition, in fact, has been made. If the partition has been made, the revenue officer has to distribute the revenue and the rent after the partition and draw the instrument of partition.
17. Hon'ble Supreme Court in SankalchanJaychandbhai Patel v. Vithalbhai Jaychandbhai Patel, 1997 (1) RCR (Civil) 565 : (1996) 6 Supreme Court Cases 433, has held that mutation entries are only to enable the State to collect ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 18 revenue from the person in possession and enjoyment of the property and the right, title and interest as to the property shall be established de hors the entries. The entries are one of the modes of proof of enjoyment of the property, .
mutation entries do not create any title or interest therein.
Later, in Durga Das v. Collector, 1997 (2) RCR (Civil) 84:
(1996) 5 Supreme Court Cases 618, the Hon'ble Supreme Court held that title to the property should be on the basis of the title they acquired to the property and not by mutation entries. In Baleshwar Tewari (dead) by LRs v. Sheo Jatan Tiwary, (1997) 5 Supreme Court Cases 112, the Supreme Court observed to the following effect:--
"......Entries in Revenue records are the paradise of the patwari and the 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. It is common knowledge in rural India that a raiyat always regards the land he ploughs as his dominion and generally obeys, with moral fibre the command of the intermediary so long as his possession is not disturbed. Therefore, the creation of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills".
18. In view of the above binding precedents, it is apparent that the revenue record by itself neither createsnorextinguishes title. Since co-owners by mutual consent have entered into separate portions of land and are in the enjoyment of their respect portions, merely the said private partition has not been formally affirmed will not relegate the parties to pre-partition status. The role of the revenue officer in section 123 of the Act is that of "affirmation" of partition. The said affirmation is subject to verification of the factum of partition only. The inquiry in terms of sub-section (2) of Section 123 of the Act is restricted to the effect to point out that, in fact, partition has been made. Therefore, non-affirmation of partition by the revenue officer will not render a private partition ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 19 redundant but such affirmation will only determine the rights of an owner in respect of their obligation to pay land revenue to the State in terms of the provisions of the Act.
19. It is open to any of the co-sharers to seek such .
affirmation who may apply to the revenue officer. There is no provision in the Act which entails any penal consequences of not recording such private partition in the revenue record. Thus, the affirmation of the revenue officer of the private partition in the revenue record is a directory provision. The purpose of such affirmation is only to determine the right of the State to recover land revenue and to keep its record updated. The mere fact that such private partition has not been recorded in the revenue record will not render an act of the parties as totally redundant. It is well-settled that entries in the revenue record do not determine, create or extinguish the title of any person. The revenue record is corroborative of the fact recorded in the revenue record as it is maintained in the normal course of the affairs of the State and carries a presumption of truth. But failure to seek affirmation of private partition, if otherwise proved on record, cannot be negated only for the reason that the same has not got the affirmation from the revenue authorities."
26. Therefore, the Civil Court cannot acquire the jurisdiction because the partition was not affirmed by the Revenue Authorities.
27. Even otherwise, Section 135 of the H.P. Land Revenue Act deals with the procedure where the partition has been made without the intervention of the Revenue Officer. In the present case, the proceedings were pending and the private partition was made during the pendency of the proceedings. All the parties ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 20 acknowledged the correctness of the same as per their statements.
Therefore, the requirement of Section 135(2) of the H.P. Revenue .
Act of the Officer satisfying himself about the correctness of the private partition was fully satisfied and the finding recorded by the learned Courts below that there was a violation of Section 135 of H.P. Revenue Act is prima facie not sustainable.
28. The copies of the documents placed on record show that an application for partition was filed by defendant No.1. The notices were issued and Rattan Dass-plaintiff No.1 and Ram Dass-
plaintiff No.2 appeared through their counsel. Therefore, the plea that they were not properly represented is not correct. Statements were made on behalf of Durga, Dharam Dass, Rattan Dass and Ram Dass on 08.12.2020. These statements read that the parties agreed to partition the land by way of private partition. The land was shown to the parties and it was accepted to be correct. No person had raised any objection to the private partition.
Thereafter the memorandum of partition was prepared, which was sent to the Field Agencies and the entries were recorded.
::: Downloaded on - 24/06/2024 20:31:00 :::CIS 2129. The plaintiffs stated in the Civil Suit that their signatures on the documents were obtained by way of .
misrepresentation and by practising fraud. The learned Courts below have accepted these allegations which were made against the Revenue Authorities exercising quasi-Judicial functions. It is trite to say that the official acts are presumed to have been done correctly and the burden lies upon the person who asserts to the contrary to establish so. Nothing was brought on record except the self-serving statement in the plaint, which was not sufficient prima facie to displace the presumption made under Section 114 of the Indian Evidence Act. Accepting the ipse dixit of the parties would mean that the statements made by the parties before the authorities and the Courts can be conveniently ignored by saying that these were obtained by way of fraud and the whole system of administration of justice will come to a standstill.
30. It was rightly submitted on behalf of the defendants that the remedy of the plaintiffs was to file an appeal against the order of the partition and not the Civil Suit as the jurisdiction of the Civil Court was prima facie barred. The learned Courts below ::: Downloaded on - 24/06/2024 20:31:00 :::CIS 22 erred in rejecting this contention and their orders suffer from jurisdictional error.
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31. It was submitted that a serious question of title was raised before the revenue authorities and the revenue authorities have failed to adjudicate the same. Not even a single document was placed on record to show that any such question was ever raised before the revenue authorities. Even if it was so, the remedy
32. to was by filing an appeal and not by filing a civil suit.
Therefore, prima facie the civil suit was barred under the provision of Section 171 of the H.P.Land Revenue Act and the learned Courts below erred in holding otherwise. Thus, the plaintiffs had no prima face arguable case to seek the injunction.
33. Admittedly the partition has been effected in the revenue record and as per the copies of the order sheets the partition proceedings have been completed. Therefore, in such a situation, the learned Courts below erred in holding that the parties were the joint owners and the plaintiffs being joint owner were entitled to seek the injunction against the defendants.
34. No other point was urged.
::: Downloaded on - 24/06/2024 20:31:00 :::CIS 2335. In view of the above, the present petition is allowed and the orders passed by the learned Courts below are ordered to .
be set aside. The application filed by the applicants/plaintiffs is ordered to be dismissed. Parties through their learned Counsel are directed to appear before the learned Trial Court on 09.07.2024 36 The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 21st June, 2024.
(Ravinder) ::: Downloaded on - 24/06/2024 20:31:00 :::CIS