Himachal Pradesh High Court
Bala Ram (Deceased) Through His Lrs vs Simroo (Deceased) Through His Lrs ... on 20 October, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 502 of 2007 .
Reserved on: 10.10.2023 Date of Decision: 20.10.2023 Bala Ram (deceased) through his LRs ...Appellants of Versus Simroo (deceased) through his LRs Purshotam Dass and others rt ...Respondents Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellants : Mr. G.D. Verma, Sr. Advocate with Mr. Hitesh Thakur, Advocate.
For the Respondents : Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment & decree dated 25.7.2007, passed by the learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, vide which the appeal filed by the appellant(plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 2the same manner as they were arrayed before the learned Trial Court for convenience).
.
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that he is an owner in possession of the land comprised in Khasra Nos. 53, 54 and 55 of located in Chak Molgi, along with plants and structures on the rt same (hereinafter referred to as the suit land), as per family partition effected by late Sh. Ghuree in the year 1952. A consequential relief of permanent prohibitory injunction for restraining defendant No.1 from taking possession of the suit land forcibly or otherwise or interfering with the possession of the plaintiff was also sought. It was pleaded that Ghuree (father of the plaintiff) effected a partition amongst his five sons Salmoo, Simroo, Shamjoo, Shayaloo Ram and Bala Ram in the year 1952. They have been cultivating the land allotted to them in a family partition since 1952 without any interference from each other. Suit land and other land were allotted to the plaintiff and the plaintiff is in exclusive possession of the suit land as the owner. His possession has also been recorded in the revenue papers. Defendant No.1 Simroo applied for the partition of the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 3 land despite knowing that the land was already partitioned by Ghuree during his lifetime. The plaintiff filed objections before .
learned AC-1st Grade, Rampur pleading that a family partition had already been effected between five brothers during the lifetime of their father. Learned AC-1st Grade did not decide the question of the title so raised before him and proceeded to of decide the partition application. Khasra No. 55 was allotted to Simroo. Revenue authority is bent upon to deliver the possession rt to the defendant. Learned Sub Judge, Rampur had also held in Civil Suit No. 61-1 of 1988 decided on 30.8.1990 that Ghuree had effected family partition amongst his five sons. This judgment was ignored by the learned AC-1st Grade. Since AC-1st Grade did not decide the question of title raised before him; therefore, the order passed by AC-1st Grade is not binding upon the plaintiff.
The plaintiff developed the suit land by raising two Kothas, planting a variety of fruit trees and taking water connection from the I&PH Department for minor irrigation of the suit land.
The suit land was wrongly allotted to defendant No.1 even though it is recorded in possession of the plaintiff. Hence, the suit was filed to seek the relief mentioned above.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 43. The suit was opposed by filing a written statement, taking preliminary objections regarding lack of locus standi, the .
suit being barred by limitation, the suit having not been properly valued for the purpose of Court fees and jurisdiction and the plaintiff being estopped from filing the suit by his acts and conduct. The contents of the plaint were denied on merits. It of was specifically denied that any family partition was effected by Ghuree during his lifetime. It was asserted that the entire rt holding was jointly owned and possessed by all the co-sharers.
This fact is also depicted in the revenue record. The objections raised by the plaintiff were rightly rejected by the revenue authorities. The land was rightly partitioned. The plaintiff and other co-sharers agitated the matter up to the Financial Commissioner, (Appeals), Shimla but their objections were not accepted. The plaintiff had not carried out any improvement.
The suit was filed without any basis; therefore, it was prayed that the same be dismissed.
4. No replication was filed.
5. The learned Trial Court framed the following issues on 14.1.2004:-
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 51. Whether the plaintiff is exclusive owner in possession of the suit land by way of family partition which took place in the year 1952, as alleged? OPP.
.
2. Whether the order of partition dated 29.9.1989 passed by AC 1st Grade Rampur is illegal, void and not binding upon the plaintiff, as alleged? OPP.
3. Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP.
4. Whether the plaintiff has no locus standi to file the suit?
of OPD.
5. Whether the suit is barred by limitation? OPD.
6. rt Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD.
7. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD.
8. Relief.
6. The parties were called upon to produce the evidence and the plaintiffs examined himself (PW-1), Kesru Ram (PW-2) and Shukru Ram (PW-3). The defendant no.1 examined himself (DW-1) and Rattan Dass (DW-2).
7. Learned Trial Court held that the judgment passed by learned Sub Judge, Rampur dated 30.8.1990 (Ext. PW-1/F) did not establish that Ghuree had partitioned the suit land. No finding was given regarding the land situated at Chak Molgi because it was tenancy land and Ghuree was not the owner.
Hence, no assistance can be derived from the judgment. The ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 6 statements of the witnesses of the plaintiff were not satisfactory. Partition was not reported to the Revenue .
Authorities and the parties are recorded to be the co-sharers in the revenue record. Even the plaintiff admitted that he and defendant no. 1 were residing together till the settlement, which falsifies his version regarding family partition. The plea that a of family partition had earlier taken place was not probable. The Revenue Authorities had rightly partitioned the land; hence, all rt the issues were answered in the negative and the suit of the plaintiff was dismissed.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned District Judge, Kinnaur at Rampur. Learned First Appellate Court concurred with the findings recorded by the learned Trial Court that the evidence of the plaintiff was insufficient to prove the family partition. The judgment passed by learned Sub Judge, Rampur dated 30.8.1990 (Ex.PW-1/F) did not mention the suit land and the judgment was regarding the tenancy land. The matter was never reported to the Revenue Authorities and the plaintiff had admitted the joint possession in his cross-examination; therefore, the learned ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 7 Trial Court had rightly negated the plea of family partition.
There is no infirmity in the judgment passed by the learned Trial .
Court. Thus, the appeal was dismissed.
9. Being aggrieved from the judgments and decrees passed by the learned Courts below, the plaintiff filed the present appeal asserting that the learned Courts below did not of properly appreciate the controversy between the parties. They rt misread, misconstrued and misinterpreted the pleadings and the evidence. It was duly proved that the family partition was effected by the late Ghuree in 1952 and the children of Ghuree were cultivating the land separately since 1952. The judgment passed by learned Sub Judge, First Class, Rampur on 30.8.1990 was not properly interpreted. The Revenue Authorities had wrongly allowed the partition of the land. They did not proceed as per the provisions of H.P. Land Revenue Act. The presumption attached to the revenue record was rebutted by the evidence.
Therefore, it was prayed that the appeal be allowed and the judgments and decrees passed by learned Courts below be set-
aside.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 810. The appeal was admitted on the following substantial question of law vide order dated 8.11.2007:
.
1. Whether both the courts below have acted illegally by failure to consider and appreciate the plea of family partition and the presumption of correctness attached to the revenue entries stands amply rebutted by the oral as well as documentary evidence on record?
2. Whether the findings as recorded by the learned Sub of Judge, 1st Class, Rampur Bushehr in Civil Suit No. 61/1 of 1988 dated 30.8.1990 vide Ex.PW-1/F has been misconstrued, misread and misinterpreted wherein issues rt No. 1 to 3 were decided in favour of the appellant?
3. Whether the parties are bound by the principle of re-
judicata and in view of the conclusion as drawn in Ex.PW- 1/F, the subsequent proceedings for partition of the land could not be entertained?
4. Whether the partition proceedings as carried out by the respondents before the revenue Courts are vitiated for want of compliance of the prescribed procedure and since the question of title was raised before them and the fact that the same has not been considered and determined, therefore, they failed to exercise jurisdiction and hence the order of partition of land Ex.PW-1/C and Ex.PW-1/D dated 16.7.1997 and 29.9.1989 are vitiated?
11. I have heard Mr. G.D. Verma, learned Sr. Advocate, assisted by Mr. Hitesh Thakur, learned counsel for the appellants/plaintiffs and Mr. Ajay Sharma, learned Senior Counsel assisted by Mr. Atharv Sharma, learned Counsel for the respondent/defendant.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 912. Mr G.D. Verma, learned Senior Counsel for the appellants/(sons and daughters of original plaintiff) submitted .
that the learned Sub Judge, Rampur had held in the previous suit that late Ghuree had partitioned the land amongst his children.
This judgment was binding upon the parties. Learned AC, 1st Grade could not have ignored the same. Sufficient evidence was of led to rebut the presumption of correctness attached to the revenue record and the learned Courts below erred in dismissing rt the suit and the appeal; therefore, he prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set-aside.
13. Mr. Ajay Sharma, learned Senior Counsel supported the judgments and decrees passed by learned Courts below and submitted that no interference is required with them.
14. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.
Substantial Questions of Law No.1 and 2:
15. These substantial questions of law are interconnected as they refer to the plea of family partition and ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 10 the findings recorded by the learned Sub Judge, Rampur in Civil Suit No. 61/1 of 1988 (Ex.PW-1/F) regarding the plea of family .
partition.
16. A perusal of the judgment and decree (Ex.PW-1/F) shows that a civil suit was filed regarding Khasra Nos. 88, 89, 92, 94, 595 and 21/1, situated in Chak Molgi. The present suit of was filed regarding Khasra Nos. 53, 54 and 55. No evidence was rt brought on record to connect the khasra numbers mentioned in the judgment (Ex.PW-1/F) to the suit land. Copy of Misal Hakiyat Bandobast Jadid (Ex.PW-1/A) shows that Khasra No. 53, 54, and 55 were earlier Khasra No. 3 min. Similarly, a copy of Missal Hakiyat Bandobast Jadid (Ex.PW-1/H) shows that Khasra No. 21/1 was earlier Khasra No. 1/1, Khasra No. 595 was earlier Khasra No. 373, Khasra Nos. 88, 89, 92 and 94 were earlier Khasra No. 366/1 min. Thus, the learned Courts below had rightly held that this judgment did not pertain to the suit land.
17. Learned Sub Judge held that Ghuree was a tenant and he had no right of ownership in the years 1956-57. He became the owner after the commencement of the H.P. Tenancy and Land Reforms Act. Any transfer of interest by the tenant except ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 11 as permitted under the law is void. No right was conferred upon any person as a person does not have any right to convey what .
he has not. Hence, the family partition and allotment of suit property could not be given effect.
18. It is apparent from these findings that learned Sub Judge, First Class, Rampur never held that a family partition had of taken place in which the suit land was allotted to the plaintiff, rt rather learned Sub Judge, First Class specifically held that no partition could have been effected in 1952 because Ghuree being a tenant had no right to transfer his tenancy. Hence, the plea that learned Courts below had wrongly construed the judgment (Ex.PW-1/F) is not acceptable.
19. Learned Courts below had rightly pointed out that parties were recorded to be joint owners in the revenue record.
Plaintiff Bala Ram admitted in his cross-examination that he used to reside with defendant No. 1 till settlement. This falsifies his plea that a partition had taken place after which the parties were residing separately. He also admitted that he had filed a civil suit seeking possession of Khasra No. 55 but he was not aware that the suit was dismissed. This also falsifies his plea ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 12 that Khasra No. 55 was in his exclusive possession. Thus, the learned Courts below had rightly held that the statement of the .
plaintiff was not sufficient to prove the family partition.
20. Kesru Ram (PW-2) stated in his cross-examination that a document regarding the partition was prepared which was signed by him and Tula Ram as witnesses. The document was of handed over to the parties. However, no such document was rt shown to him. His testimony shows that the better evidence namely a document was available, but the same was not produced. Further, he stated that he could not tell the khasra number allotted to each of the parties because he was not a Patwari. He stated that he is residing in a different village and he does not have any land in village Molagi. His village is located at such a distance that if one starts in the morning from his village, he reaches Village Molagi at meal times. He admitted that Bala Ram and Simroo resided together during the lifetime of Ghuree and they had a common wife. This statement also falsifies the version of the plaintiff that Ghuree had partitioned the land during his lifetime and parties were residing separately.
::: Downloaded on - 20/10/2023 20:39:46 :::CIS 1321. Shukru Ram (PW-3) was 23 years old on the date of his deposition i.e. on 16.8.2004. He was not even born in 1952 .
when the partition is stated to have taken place. Therefore, his testimony does not prove the partition.
22. It was submitted that the parties are recorded to be in separate possession in the copy of Misal Hakiyat Bandobast of Jadid (Ex.PW-1/A), which probabilizes the plea of family rt partition. This is not acceptable. There is a distinction between family arrangement and family partition. It was held in Janku v.
Nagnoo, 1985 SCC OnLine HP 12= AIR 1986 HP 10 that mere occupation of the property separately by a co-sharer does not amount to partition. It was observed:
"14. In the written statement the defendants allege that a private partition took place about 47 years back, that is, in or about 1921. No deed/writing of partition was produced by the defendants and there is also no evidence to prove when this private partition took place between them or their ancestors. It is also not proved as to what property was put in the hotchpots in the partition and which portions of the property were allotted to each of the co- sharers/co-owners. No report was given to, the revenue authorities with the result that no mutation of partition was sanctioned. There is also no entry in the revenue records to prove that any co-sharer is in possession of a separate parcel of land on account of partition the entries on the contrary show that separate possessions are recorded in the capacity of a co-sharer.::: Downloaded on - 20/10/2023 20:39:46 :::CIS 14
15. In the case of co-sharers, every co-sharer has an interest in the whole property and also in every parcel of it and possession of the joint property by one-sharer is, .
in the eyes of the law, possession of all even if all but one are actually out of possession. A mere occupation of a larger portion or even of an entire joint property cannot necessarily amount to an ouster as the possession of one co-sharer is deemed to be the possession on behalf of all. If, however, the co-sharers are in possession of separate parcels of land under some arrangement, then such an of arrangement cannot be disturbed except by filing proceedings for partition and during these proceedings, the proper mode of partition can be framed and respective possession of the parties/co-sharers can be rt respected to the extent to which it is possible."
23. This question was again considered in Leetho Versus Chamelo and Others 2001(2) Shim.LC 238 and it was held that mere arrangements regarding the cultivation of the land cannot be termed as a partition. It was observed:
"12. So far second substantial question of law is concerned, the learned Counsel for the plaintiff has taken this Court through the pleadings and evidence on record, oral as well as documentary, but has not been able to show that any part thereof has been misread and misinterpreted by the first appellate Court to come to the conclusion that the land in dispute stood already partitioned. In para 7 of the plaint, there is mention of family settlement without giving further particulars thereof, whereas, the oral evidence pertains to partition, which is not supported by the revenue record produced by the plaintiff. Partition, whether by way of family settlement or family arrangement or by the Revenue Officer by giving effect to the family partition or settlement by metes and bounds should be such which may conclusively establish the respective shares of the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 15 parties so as to stop further dispute in between them. Vague assertions in regard to the share of one party and that too which is not proved from the evidence, cannot be .
said to be sufficient to hold that a partition had taken place. Further, mere arrangement in regard to the cultivation of the land cannot be termed as partition though such arrangement at the time of final partition by the Revenue Officer should be given due consideration in order to maintain possession of the parties intact. Therefore, the first appellate Court has rightly set aside of the findings of the trial court to hold that the land in dispute was not partitioned as alleged by the plaintiff. The Substantial Question of Law No. 2 is answered accordingly."
rt
24. This judgment was followed in Mangat Ram Versus Gulat Ram (since deceased) through his LRs Jagdeep Kumar and others Latest HLJ 2011(1) (HP) 274 and it was held that mere arrangement between the parties for the cultivation of the land does not amount to a formal partition, especially when the same is not reported to the revenue authorities. It was observed:
"19. Prior to the passing of the order by the competent authority, no partition by metes and bounds ever took place between the parties. The court below rightly came to the conclusion that private partition was actually an arrangement for the purpose of cultivation of land. It was not a final partition of the land by metes and bounds so as to effect severances of joint holdings. Had it been so, parties would have definitely got this fact recorded in the revenue record and resorted to the mandatory provisions of Sections 35 and 135 of the Act. The act is a complete code in itself. It provides a procedure for preparing revenue records. Under Section 35, any person acquiring right in an estate as a landowner is required to report the ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 16 same to the Patwari of the estate, who in turn, is obliged to enter this fact in the register of mutations maintained by him. Whenever there is partition without the .
intervention of the Revenue Officer, the Private party is required to apply to the Revenue Officer for an order of confirmation/affirmation of partition. The Act provides that in such like cases Revenue Officer is mandatorily required to inquire the fact as to whether in fact partition was ever effected upon or not. The Revenue Officer is required to comply with the statutory provisions laid of down under Chapter 9 of the Act. Admittedly in the instant case, parties have not resorted to such measures. Partitions entered into in the year 1961 and 1972/74 is no partition in the eyes of the law.
rt
20. This Court in Leetho vs. Chamelo & Ors. 2001 (2) Shim. L.C. 238, while dealing with the question of jurisdiction of the Civil Court to entertain a suit filed by the plaintiff, assailing the order, of partitioning the land, passed by the competent authority, has specifically held that partition, whether by way of family settlement or family arrangement or by Revenue Officer by giving effect to the family partition or settlement by metes and bounds, should be such which may conclusively establish the respective shares of the parties so as to stop further dispute in between them. Mere arrangement in regard to the cultivation of land cannot be termed as partition though such arrangement at the time of final partition by Revenue Officer should be given due consideration in order to maintain possession of the parties intact."
25. In the present case, the plaintiff and defendant No.1 are recorded to be in joint possession in the Misal Hakiyat Bandobast Jadid (Ex.PW-1/A). Learned Courts below had rightly held that the entry in the copy of Jamabandi carries with it a presumption of correctness and the plaintiff had failed to rebut ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 17 this presumption, rather he and his witnesses admitted that plaintiff and defendant no. 1 were residing together during the .
lifetime of Ghuree till the settlement. Thus, learned Courts below had rightly negated the plea of family partition and there is no misreading of the evidence. Hence, these substantial questions of law are answered against the appellants.
of Substantial Question of Law No. 3:
26. rt It has already been held that the previous judgment did not pertain to the suit land and does not apply to the present case. Moreover, the plea of res-judicata cannot be established on the basis of a copy of judgment alone. It was laid down by the Hon'ble Supreme Court in Syed Mohd. Salie Labbai v. Mohd.
Hanifa, (1976) 4 SCC 780, that the respective pleadings of the parties in the previous suit have to be brought on record to determine the case of the parties. The recitals in the pleadings cannot be inferred from the judgment. It was observed (at page
790):
"8. In the instant case according to the plaintiffs- respondents, the identity of the subject matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion, the best method to decide the question of res judicata is first to determine ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 18 the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as .
res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment."
27. This position was reiterated in V. Rajeshwari v. T.C. of Saravanabava, (2004) 1 SCC 551: 2003 SCC OnLine SC 1405, wherein it was observed at page 556:
rt "12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra DeoDhabal Deb v.
Gour Hari Mahato AIR 1936 PC 258: 1936 All LR 786, Medapati Surayya v. TondapuBalaGangadhara Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal (1970) 3 SCC 656. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue because the necessary facts were present to the mind of the parties and were gone into by the trial court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 19 consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.
.
13. Not only the plea has to be taken, but it has to be substantiated by producing copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only a copy of the judgment in the previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be of taken as enough proof. But as pointed out in Syed Mohd. SalieLabbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their rt respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v.
BhooralalAIR 1964 SC 1810 : (1964) 7 SCR 831 placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council (1887-
88) 15 IA 186: ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 20 be found out only by looking into the pleadings, the issues and the judgment in the previous suit."
28. Hence, in the absence of the pleadings in the .
previous suit, it cannot be held that the present suit is barred by the principle of res-judicata and this substantial question of law is answered against the appellant.
of Substantial Question of Law No. 4:
29. Learned AC-1st Grade held in his order dated rt 16.7.2987 (Ex.PW-1/C) that the plea of the previous partition was not proved as it was never reported to Patwari or the Revenue Authorities. It was submitted that learned AC-1st Grade had not converted itself into the Civil Court and the procedure adopted by him was bad. It was laid down in Sandaya versus Shamsher Singh 1990 PLJ 555 that where a question of title was raised and was not considered, the Civil Court does not have jurisdiction to go into the validity of the order passed by the Revenue Authorities. It was observed:-
"4. After hearing the learned counsel, I find merit in this revision. The question of title was raised by the present plaintiff in the partition proceedings and was negatived by the Assistant Collector vide its order dated 24th December. 1981 Section 117 Clause (c) of Sub-section (2) of the Punjab Land Revenue Act, provides that an appeal could be filed against the decree of the Revenue Officer in ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 21 the Court of District Judge concerned. No such appeal was filed, rather the appeal was filed before the Collector against the said order where the same was maintained .
and further in revision to the Commissioner also, the said order of the Assistant Collector was upheld. Section 158 of the Punjab Land Revenue Act, 1887, provides that a Civil Court shall not exercise jurisdiction over any of the following matters, namely, (xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of proceedings for of partitions, not being a question as to title in any of the property of which partition is sought; and (xviii) any question as to the allotment of land on the partition of an estate, holding tenancy, or as to the distribution of land rt subject by established custom or periodical re- distribution or as to the distribution of land revenue on the partition of an estate or holding or on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy. In view of the said provisions, the jurisdiction of the Civil Court was clearly barred and the view taken by the learned District Judge in this behalf was wholly wrong and illegal."
30. In Khalil Vs. Meena @ Yamin 2016 (2) Himachal Law Reporter 869, the Revenue Authority had 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 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 ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 22 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."
31. In the present case, learned AC-1st Grade had the jurisdiction to determine the question of title. This question of could be determined rightly or wrongly and once it was determined, the remedy lies by filing an appeal which was rt availed. Therefore, this question cannot be agitated before the Civil Court.
32. The view taken by learned AC-1st Grade is in accordance with the judgment of this Court in Mehar Singh Vs. Het Ram and others 2011 Law Suit HP 1157, wherein it was observed:-
"4. However I am of the view that it is not necessary to answer these questions because this appeal has to be rejected on the ground that even if such a document was a valid document, no partition of agricultural land could have taken place without getting it confirmed/affirmed by the revenue officials. A Learned Single Judge of this Court in Mangat Ram v. Gulat Ram (since deceased) through his L.Rs. Jagdeep Kumar and Ors. Latest HLJ 2001 (HP) 274 after discussing the entire law on the subject held as follows:
19. Prior to the passing of the order by the competent authority, no partition by metes and bounds ever took place between the parties. The ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 23 court below rightly came to the conclusion that private partition was actually an arrangement for the purpose of cultivation of land. It was not a final .
partition of the land by metes and bounds so as to effect severances of joint holdings. Had it been so, parties would have definitely got this fact recorded in the revenue record and resorted to the mandatory provisions of Sections 35 and 135 of the Act. Act is a complete code in itself. It provides a procedure for preparing revenue record. Under of Section 35, any person acquiring right in an estate as a landowner is required to report the same to the Patwari of the estate, who in turn, is obliged to enter this fact in the register of mutations rt maintained by him. Whenever there is partition without the intervention of the Revenue Officer, the Private party is required to apply to the Revenue Officer for an order of confirmation/affirmation of partition. The Act provides that in such like cases Revenue Officer is mandatorily required to inquire the fact as to whether in fact partition was ever effected upon or not. Revenue Officer is required to comply with the statutory provisions laid down under Chapter 9 of the Act. Admittedly in the instant case, parties have not resorted to such measures. Partitions entered into in the year 1961 and 1972/74 is no partition in the eyes of the law.
20. This Court in Leetho v. Chamelo and Ors.,2002 2 ShimLC 238, while dealing with the question of jurisdiction of the Civil Court to entertain a suit filed by the Plaintiff, assailing the order, of partitioning the land, passed by the competent authority, has specifically held that partition, whether by way of family settlement or family arrangement or by Revenue Officer by giving effect to the family partition or settlement by metes and bounds, should be such which may conclusively establish the respective shares of the parties so as ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 24 to stop further dispute in between them. Mere arrangement in regard to the cultivation of land cannot be termed as partition though such .
arrangement at the time of final partition by the Revenue Officer should be given due consideration in order to maintain possession of the parties intact.
21. Significantly while passing the order in question, the Revenue Authority has kept this principle in mind and suit land pertaining to only of two khasra numbers has been ordered to be handed over to Gulat Ram as his share in the estate of his father. Significantly possession of the parties qua other joint land has not been disturbed. This in fact rt is in consonance with the statements of the parties and more particularly that of Mangat Ram, made before the Revenue authorities to the effect that they were ready to distribute the land for settlement of equities amongst the shareholders.
22. While considering the provisions of Section 123 of the Punjab Land Revenue Act, which are para materia with Section 135 of the Act, Punjab and Haryana High Court in Chander Bhan v. Hari Ram and Ors.,1996 1 ShimLJ 696 has held that requirement of reporting the factum of private partition to the revenue authorities is must.
23. In Janku and Ors. v. Nagnoo and Ors., 1986 AIR(HP) 10, in almost similar circumstances where on the basis of respective possession of the parties land revenue was not assessed separately in the revenue record (jamabandi), the Court repelled the contentions of the parties that the land stood partitioned by way of private partition.
5. Admittedly, no further action has been taken pursuant to the document Ext. PA. It has neither been reported to the revenue authorities nor the revenue authorities passed any order to make the entry in the register of ::: Downloaded on - 20/10/2023 20:39:46 :::CIS 25 mutation with regard to the aforesaid order. Therefore, no reliance can be placed on Ext. PA to hold that there was a partition between the parties. Therefore, there is no .
merit in the appeal, which is accordingly rejected. No costs."
33. Therefore, as per the judgment of this Court which was binding upon AC-1st Grade if the partition is not reported to the Revenue Authorities, they are not bound to act upon the of same and the view taken by learned AC-1st Grade cannot be said to be bad. rt
34. No other infirmity was shown in the order passed by learned AC 1st Grade and the partition proceedings carried by the Revenue Courts cannot be said to be bad. Hence, this substantial question of law is answered against the appellants.
Final order:
35. In view of the above, the present appeal fails and the same is dismissed, so also pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 20th October, 2023 (Chander) ::: Downloaded on - 20/10/2023 20:39:46 :::CIS