Himachal Pradesh High Court
___________________________________________________________ vs Dhyan Dassi & Others on 16 September, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.501 of 2007 Reserved on :22.8.2016 .
Date of Decision: 16th September,2016 ___________________________________________________________ Hima Ram ..... Appellant.
Versus Dhyan Dassi & others ... Respondents. Coram:
of The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 Yes.
For the Appellant
rt : Mr. G.R.Palsra, Advocate.
For the Respondents: Mr.S.D.Sharma, Advocate.
Sandeep Sharma, Judge Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 8.8.2007, passed by learned Additional District Judge, Mandi (camp at Karsog), District Mandi, H.P., whereby the judgment and decree dated 17.9.2004, passed by learned Civil Judge (Junior Division) Karsog in Civil Suit No. 58 of 2003 has been reserved and set-aside.
2. The brief facts of the case as emerged from the plaint are that the defendant and proforma-defendants were recorded joint owners in possession of the land Whether reporters of the local papers may be allowed to see the judgment?
yes.
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comprised under khata/ khatauni No.100/161 to 168, khara Nos. 245, 264, 331, 297, 298, 238, 281, 292, 389, .
666, 760, 230, 258, 290, 291, 853, 223, 229, 283, 390, 741, 775, 757, kita-25, measuring 10-18-9 bighas, situated in muhal Bhanera/462, Tehsil Karsog, District Mandi, as entered in jamabandi for the year, 2000-2001. It is averred of in the plaint that proforma-defendant No.7, Smt. Surtu Devi vide registered sale deed No.258, dated 15.5.1998, rt sold khasra Nos. 234, 238, 229, kita-3,measuring 0-18-14 bighas to the plaintiffs and handed over the possession to the plaintiffs and since then plaintiffs are owner in possession of khasra Nos. 234, 238 and 229. It is also averred in the plaint that the defendant moved an application before the Assistant Collector Ist Grade, Karsog for partition proceedings in the year, 2000, which was allowed vide order dated 3.11.2002, whereby the land comprised khasra Nos.231, 234/1, 238, measuring 0-12-13 bighas was illegally allotted to the defendant. It is also averred in the plaint that on 7.7.2003, Revenue staff alongwith the police came to the spot and forcibly delivered the possession of khasra No.234/1, measuring 0- 6-6 bighas and khasra No.238, measuring 0-4-11 bighas to ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...3...
the defendant, whereas the plaintiffs were owner in possession of land bearing khasra No.234 and 238, which .
was purchased by them from Smt. Surtu, proforma-
defendant. It is further averred in the plaint that the plaintiffs informed the revenue staff that they have not been impleaded as respondents in the partition of proceedings and by virtue of registered sale deed, the aforesaid plaintiffs have purchased the total khasra rt No.234 measuring 0-10-4 bighas from Surtu and proforma defendant and plaintiffs are in possession of total khasra No.234 but inspite of that revenue staff with the help of the police delivered the possession of khasra No.234/1, measuring 0-6-6 bighas to the defendant. It is averred in the plaint that by virtue of sale deed, plaintiffs have become owner of total khasa No.234 and learned Assistant Collector 1st Grade Karsog has wrongly allotted khasra No.234/1, measuring 0-6-6 bighas and khasra No.234 to the defendant which is in possession of the plaintiffs since 15.5.1998 when they purchased the land from Surtu and hence delivery of possession in favour of the defendant regarding khasra No.234/1 is quit illegal and the same is liable to declared as null and void. It is averred in the ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...4...
plaint that the defendant was asked by the plaintiffs time and again to hand over the possession of khasra No.234/1 .
to the plaintiffs but in vain. The proforma-defendants No.2 to 12 have been recorded as co-sharers in the suit land and they have been impleaded as proforma defendants otherwise no relief was claimed against them. The cause of of action accrued to the plaintiffs on 7.7.2003, when the plaintiffs came to know that khasra Nos. 234/1 has been rt allotted to the defendant and on 15.7.2003, when the defendant forcibly took the possession of the suit land and right to sue also accrued on 28.8.2003, when the defendant finally refused to hand over the possession of the suit land to the plaintiff.
3. Defendant, by way of filing written statement raised various preliminary objections qua cause of action, maintainability and limitation. Defendant further stated that plaintiff has not come with clean hands and suit is not properly valued for the purpose of court fee. On merits, defendant admitted that the possession of replying defendant over a particular khatauni No. 159 has also been held by the Court in previous suit bearing No.6 of 1998, decided on 27.9.2009 filed by defendant No.1 ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...5...
against predecessor-in interest of plaintiff and proforma defendant No.7.It is submitted that the replying defendant .
had instituted a civil suit bearing No.6/1998 for permanent prohibitory injunction and that suit was decreed with cost on dated 27.9.1999 but predecessor of the plaintiff i.e. proforma defendant No.7 never disclosed this fact neither of in their written statement nor in their depositions that the proforma defendant No.7 Smt. Surtu Devi has ever sold rt any piece of land to the plaintiffs. Had there been any sale deed, the predecessor of the plaintiff as well as proforma defendant No.7 could have disclosed this fact before the Court in previous suit. Defendant further stated that if at all, if there is any sale deed even then the land was recorded joint land in the revenue record and any co-
sharer, whatsoever could sell the land from the joint holding to the extent of his/her share and not a particular khasra number. Defendant further pleaded that had there been any sale deed, mutation could have been attested in the light of the alleged sale deed. Defendant further stated that it is wrong to allege that the plaintiffs are in exclusive possession over khasra No.234, but in fact the possession of the replying defendant has already been ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...6...
established by the law of Court in the previous suit.
However, defendant submitted that in order to develop .
the land, he instituted partition proceedings to get his share separated from the joint holding of the other co-
sharers. Defendant further claimed that since he was in possession over the major portion of khasra No.234, of Assistant Collector 1st Grade has rightly divided khasra No.234 in two parts each holding 0-6-6 and 0-4-4 bighas rt and in partition proceedings defendant has been allotted khasra Nos. 231, 234/1 and 238, Kita-3, measuring 0-12- 13 bighas qua his share. Defendant further contended that the instrument of partition has also been prepared and also given in effect in the revenue record. Proforma defendants have also admitted this partition proceeding as correct and their statements were also recorded to this effect by the Assistant Collector 1st Grade, Karsog. It is further averred that the order of Assistant Collector 1st Grade, Karsog is in accordance with the law and there is no illegality in the order of partition and the allotment of khasra No.234/1, measuring 0-0-6 bighas is correct as per the rules and any sale transaction between plaintiffs and proforma defendant No.7 is wrong, illegal and therefore ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...7...
denied. In the aforesaid background, defendant prayed for the dismissal of the suit.
.
4. By way of replication, plaintiffs while denying the allegations made in the written statement, re-affirmed and reasserted the stand taken in the plaint.
5. On the pleadings of the parties, the learned of trial Court framed the following issues:-
"1. Whether the plaintiffs are entitled for the decree of declaration that they are rt exclusive owner in possession of khasra No.236, 238 and 229, kita-3, measuring 0-18-14 bighas as per registered sale deed No. 258 as alleged? OPP.
2. Whether the delivery of possession of khasra No. 234/1 and khasra No.238 has been wrongly given to the defendants by the revenue agency which is illegal, null and void? OPP.
3. Whether the plaintiffs are entitled for the decree of possession of khasra No.234/1 and land measuring 0-6-6 bighas and khasra 238, land measuring 0-4-11 bighas as alleged? OPP.
4. Whether the plaintiffs have no enforceable cause of action to file the present suit? OPD.
5. Whether this suit is not maintainable in the present form? OPD.
6. Whether the suit is barred under Order 2 Rule 2 CPC? OPD.
7. Whether this suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.::: Downloaded on - 15/04/2017 21:14:34 :::HCHP
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8. Whether this suit is time barred? OPD.
9. Whether this Court has no jurisdiction .
to try and entertain the present suit?
OPD.
10. Whether khara No.234/1 and khasra No.238 has been rightly given to the defendant after partition proceedings? OPD.
11. Relief:-
of
6. The learned trial Court returned findings on issues No. 1 to 6, 9 and 10 against the plaintiffs and rt decided issues No.7 and 8 against the defendant and accordingly dismissed the suit filed by the plaintiff.
7. Feeling aggrieved and dissatisfied with the impugned judgment and decree, passed by learned trial Court, respondents/plaintiffs filed an appeal in the Court of learned Additional District Judge, Mandi, H.P. by way of Civil Appeal No.74 of 2004, which was allowed by the learned Additional District Judge, Mandi. Hence, the present appeal before this Court.
8. This Regular Second Appeal was admitted on the following substantial questions of law:-
"(1) whether the learned First Appellate Court has misread-misconstrued the oral as well as documentary evidence of parties especially documents Ex.DB, Ex.DC, Ex.PW1/A and Ex.PW2/A which has ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...9...
materially prejudice the case of the appellant?
(2) Whether the judgment and decree of the .
First Appellate Court is perverse due to non considering the previous decision Ex.DB in C.S. No.6/98 because the present suit of the plaintiffs is hit by Order 2 Rule 2 CPC? (3). Whether the judgment and decree of the First Appellate Court is not sustainable due to the reason that weight-age has been given to the sale deed EX.PW1/A ignoring the well settled proposition of law that possession of one co-sharer is possession of of all and one co-sharer is the trustee of other co-sharer which has materially prejudice the case of the present appellant?.
rt (4). Whether the suit of the plaintiff is hit by Section 171 of H.P.Land Revenue Act and this aspect has been ignored by the First Appellate Court which has materially prejudice the case of the appellant."
9. Mr. G.R.Palsra, learned counsel representing the appellant vehemently argued that the judgment, passed by learned First Appellate Court deserve to be quashed and set-aside being against law and facts on record. He contended that bare perusal of the impugned judgment passed by learned First Appellate Court, clearly suggest that same has been passed simply on whimsical grounds that too on surmises and conjectures and the same is not based upon the proper appreciation of the evidence as well as law and as such, prayed that present appeal may be allowed by setting aside the impugned ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...10...
judgment passed by learned First Appellate Court. Mr. Palsra, strenuously argued that bare perusal of the .
judgment passed by the learned trial Court clearly suggest that the same is based upon the correct appreciation of evidence adduced on record as well as law and learned trial Court had rightly come to the conclusion that the suit of of the plaintiffs is hit by Order 2 Rule 2 of CPC because no specific challenge whatsoever, was laid to the partition rt proceedings, if any, by the plaintiffs in the suit in question.
Mr. Palsra, learned counsel contended that learned First Appellate Court committed grave error while setting-aside the partition proceedings dated 30.11.2002 without assigning any cogent and convincing reasons because learned First Appellate Court could not look into the illegality, if any, of the partition proceedings made by Assistant Collector 1st Grade, Karsog in terms of the Himachal Pradesh Land Revenue Act, 1954, wherein specific mechanism has been provided to challenge the order passed in partition proceedings. Mr. Palsra, further contended that learned First Appellate Court has fallen in grave error by ignoring the well settled proposition of law that the possession of one co-sharer is possession of all ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...11...
and one co-sharer hold the land as a trustee of the other co-sharer. In the present case, it clearly stands proved on .
record that the parties were co-sharers of the suit land measuring 10-18-9 bighas prior to partition. During arguments having been made by him, Mr.Palsra, also invited the attention of this Court to Ex. DB i.e. judgment of dated 27.9.1999, passed by learned Sub Judge, 1st Class, Karsog, District Mandi, HP in Civil Suit No.6 of 1998, rt wherein it has been held that suit land is jointly owned and possessed by the parties. Mr. Palsra, further stated that since present plaintiffs entered into the shoes of Smt. Surtu Devi, who was party in Civil Suit No.6 of 1998, from whom plaintiff had purchased land, they are bound by the judgment passed in civil suit No.6 of 1998. Mr. Palsra, also stated that the judgment and decree dated 27.9.1999 has attained finality since no appeal whatsoever, was ever filed by Smt.Surtu and others and as such same is binding upon the parties. He also invited the attention of this Court to the aforesaid judgment to demonstrate that defendant Surtu Devi, from whom plaintiff purchased the land, was directed not to disturb the possession of the plaintiff over ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...12...
the suit land until the suit land is partitioned between the parties by the process of law by metes and bounds.
.
10. Mr. Palsra, also invited the attention of the Court to Ex.PW1/A and Ex.PW2/A to demonstrate that immediately after passing of aforesaid judgment of the trial Court, proceedings were initiated before the Assistant of Collector 1st Grade, Karsog for partition of the land in question. The Assistant Collector 1st Grade, Karsog after rt associating all the interested parties, partitioned the land in question vide order dated 30.11.2002. Mr. Palsra, specifically stated that Smt. Surtu Devi, from whom present plaintiff purchased the land in question was party in the partition proceeding and she never disclosed before the Assistant Collector 1st Grade Karsog with regard to sale, if any, made by her in favour of the plaintiff. Mr. Palsra, forcibly contended that Ex. DC i.e instrument of partition has been correctly drawn by the Assistant Collector 1st Grade, Karsog, wherein Smt. Surtu Devi was arrayed as party in the partition application and as such, all the parties including Smt. Surtu Devi were bound by the decision of the Assistant Collector 1st Grade Karsog, dated 30.11.2002. No prejudice has been caused to the plaintiffs ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...13...
because the share of Smt. Surtu Devi has been allotted to her. Mr. Palsra, while concluding his arguments .
vehemently argued that the learned First Appellate Court has fallen in grave error while retuning the findings that the plaintiffs are owner in possession of land comprising of khasra No.234, 238 and 229, kita 3, measuring 0-18-14 of bighas mentioned in khewat/ khatauni No.100/161 to 168 knowing fully well that the khata was joint and possession rt of the parties were recorded separately before partition.
Mr. Palsra, also stated that recording of possession separately does not mean that the parties are owner in possession of separate land unless and until the land is partitioned by metes and bounds. Mr. Palsra also invited the attention of this Court to the alternative remedy available under the aforesaid Act to assail the orders, if any, passed by Assistant Collector 1st Grade in partition proceedings and as such, learned First Appellate Court had no occasion, whatsoever, to interfere in the well reasoned judgment passed by learned Trial Court, wherein suit of the plaintiffs was dismissed on the ground of jurisdiction.
11. Mr. G.R.Palsra, learned counsel for the appellant also placed reliance on the judgment in case ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...14...
titled Gopi Chand and another versus Sonam Dass and others; 1998(2) S.L.J. 1058. The relevant para-20 of the .
judgment is reproduced as under:-
" 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 of 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, rt they cannot be 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.
12. Similarly, in case Mast Ram(since deceased) through LRs and others Vs. Shankar Dass and others;
Latest HLJ 2014(HP) Suppl.70." The relevant para-17 of the judgment is reproduced as under:-
"Aggrieved by the impugned judgment and decree, the appellants have assailed the legality and validity thereof on the grounds, inter alia, that the findings recorded by the learned lower Appellate Court are highly unjust, illegal, arbitrary and without any jurisdiction and that by drawing adverse inference against the appellants, it has committed great irregularity and illegality, for the reason that it was not the case of either party that after effecting ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...15...
partition, they were not put in possession of the suit land nor any such issue was framed. Therefore, learned lower Appellate Court is stated to have .
travelled beyond the record and acted without any jurisdiction, while holding that the appellants herein have failed to prove the issuance of warrant of possession as required under Section 134 of the Act, during the course of partition. The partition was challenged by the respondents on different grounds of and delivery of possession was never in controversy between the parties. The admission on the part of the respondents that the partition was effected on rt the spot taking into consideration the respective possession of all the co-sharers itself demonstrates that the possession of each and every co-sharer in the suit land was delivered as per their respective shares and they were already in possession thereof.
The challenge to the partition was on the ground that it was not effected on the spot in accordance with the compromise. The Civil Court, therefore, had no jurisdiction to try and entertain the suit and to go into the question of validity of the order of partition or the implementation thereof being barred under Section 171 of the H.P. Land Revenue Act. Above all, there is no iota of evidence to show that the revenue officials while effecting the partition had exceeded their jurisdiction. Therefore, the Civil Court had no jurisdiction to determine the legality of the order of partition and also the implementation thereof. No jurisdiction was vested in the learned lower Appellate Court to modify the judgment and decree passed by learned trial Court in the manner, as has ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...16...
been done in the impugned judgment and decree nor the provisions of the Indian Evidence Act were applicable. The findings recorded by learned lower .
Appellate Court have, therefore, been stated to be not supported from the evidence available on record and being not only erroneous, but perverse also, deserve to be quashed and set-aside."
13. Mr. S.D.Sharma, learned counsel representing of the plaintiffs/respondents, supported the judgment passed by learned First appellate Court. Mr. Sharma, vehemently rt argued that bare perusal of the judgment passed by learned First Appellate Court, clearly suggest that the same is based upon the correct appreciation of the evidence available on record and as such, no interference, whatsoever, of this Court is warranted in the facts and circumstances of the case. Mr. Sharma, vehemently argued that it stands proved on record that the plaintiffs had purchased specific khasra No. 229, 234 and 238 from co-sharer Smt. Surtu Devi vide sale deed Ex.PW1/A, dated 15.5.1998 and possession thereof was also delivered to the plaintiffs and as such, there is no illegality in the impugned judgment passed by learned First Appellate Court, wherein it has been held that Smt. Surtu Devi was exclusive owner of land bearing khasra Nos. 229,234 and ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...17...
238 alongwith other khasra numbers, as recorded in Ex.
PB. Since Smt. Surtu Devi vide sale deed Ex.PW1/A sold .
aforesaid khasra numbers in favour of the plaintiffs, she was entitled to that part of the property in partition proceedings, which was admittedly conducted at her back.
Mr. Sharma, forcibly contended that there is ample of evidence available on record suggestive of the fact that the defendant/appellant knowing fully well that aforesaid rt khasra numbers have been purchased by the plaintiffs from Smt. Surtu Devi, purposely/intentionally failed to implead her as a party respondent in the partition proceedings and as such, no fault, if any, can be found in the well reasoned judgment passed by the learned First Appellate Court, whereby it has been held that the order dated 30.11.2002, passed by the Assistant Collector 1st Grade, Karsog in case titled as Sh. Hima Ram versus Smt. Surtu Devi and others is illegal, null and void. While concluding his arguments, Mr. Sharma forcibly contended that there is no force in the contention put forth on behalf of the learned counsel for the plaintiffs/respondents that plaintiffs had alternative remedy to lay challenge to the partition proceedings by resorting to the provisions of H.P. ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...18...
Land Revenue Act. He stated that since all the partition proceedings were conducted at his back and forcibly .
possession of khasra No. 229,234,238 was delivered to the plaintiffs/respondents, plaintiff rightly filed the suit for declaration before the Court of learned Civil Judge (Jr. Division) Karsog, District Mandi, HP. He also invited of attention of the Court to provisions contained in Section 46 of the Act, which is as under:-
rt" Suit for declaratory decree by persons aggrieved by an entry in a record:- If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in (a periodical) record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1963."
14. Mr. S.D.Sharma, learned counsel representing the respondents-plaintiff also placed reliance on following judgments to substantiate his arguments that any ouster of jurisdiction should not be readily inferred by the Courts, rather Courts should lean in favour of such construction which would uphold jurisdiction of Civil Court. ( See:- Firm of Illuri Subbayya Chetty and Sons Vs. State of Andhra Pradesh AIR 1964 SC 322, Dhulabhai v. State of Madhya Pradesh and another AIR 1969 SC 78, Bhanwar Lal and ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...19...
another v. Rajasthan Board of Muslim wakf and others(2014) 16 S.C.C.51, Babu Ram(deceased) and others .
v. Shri Pohlo Ram(deceased) and others AIR 1992 HP 8, Roshan Lal versus Krishan Dev Latest HLJ 2002(hp) 197, Jagannath versus Om Prakash 2008(1) Shim. LC 45, Rajasthan State Road Transport Corporation and another of vs. Bal Mukund Bairwa(2) 2009(4) SCC 299, Smt. Bhekhalu Devi Vs. Smt. Ram Ditti and others 2008(2) Shim.LC 412.
15. rtI have heard learned counsel for the parties and have gone through the record of the case.
16. Before exploring answer to the substantial questions of law framed at the time of admission as reproduced hereinabove, it would be profitable to reproduce relevant provisions of H.P. Land Revenue Act applicable in the present case:-
Section 14. Appeals:- Save as otherwise provided by this Act, an appeal shall lie form original or appellate order of a Revenue Officer as follows, namely:-
(a) to the Collector when the order is made by an Assistant Collector of either grade;
(b) to the Commissioner(****) when the order is made by a Collector;::: Downloaded on - 15/04/2017 21:14:34 :::HCHP
...20...
© to the Financial Commissioner when
the order is made by a
Commissioner;
.
Provided that:-
(i) When an original order is confirmed
on first appeal, a further appeal shall not lie;
(ii) When any such order is modified or reserved on appeal by the Collector, the order made by the of Commissioner on further appeal, if any, to him shall be final.
rt Review by Revenue Officers-(1){ where there is a mistake or error apparent on the face of record or where some new and important fact or evidence is discovered, a Revenue Officer} may, either of his own motion or on the application of any party interested, review and on so reviewing modify, reverse or confirm, any order passed by himself or by any of his predecessor in office:-
Provided as follows:-
(a) When a Commissioner or Collector thinks it necessary to review any order which he has not himself passed, when a Revenue Officer of class below that of Collector proposes to review any order whether passed by himself or by any of his predecessor in office, he shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject;
(b) an application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...21...
that he had sufficient cause for not making the application within that period;
(c) an order shall not be modified or reversed .
unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order;
(d) an order against which an appeal has been preferred shall not be reviewed.
(2) For the purposes of this section, the Collector shall be deemed to be the successor in office of any of Revenue Officer of a lower class who has left the district or has ceased to exercise powers as a Revenue Officer, and to whom there is no successor in office.
rt(3) An appeal shall not lie from an order refusing to review or confirming on review a previous order.
(4) Save in the cases of clerical or arithmetical mistakes arising from any accidental slip or omission no application for review shall lie under this section against an order passed by the Financial Commissioner under Section 17 of this Act.
17. Now, it would be apt to reproduce provisions contained Sections 122 to 126 of the Act which specifically deals with partition proceedings:-
122. Effect to partition of estates and tenancies on joint liability for revenue and rent"-(1) A partition of land, either under this chapter or otherwise, shall not, without the express consent of the Financial Commissioner, affect the joint liability of the land or of the land-owners thereof for the revenue payable in respect of the land, or operate to create a new estate, and, if any conditions are attached to that consent, those conditions shall be binding on the parties to the partition.
(2) A partition of a tenancy shall not, without the express consent of the land-lord, affect the joint ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...22...
liability of the co-sharer therein for the payment of the rent thereof.
123. Application for partition: Any joint owner .
of land, or any joint tenant of a tenancy in which a right of occupancy subsists, may apply to a Revenue Officer for partition of his share in the land or tenancy, as the case may be, if-
(a) at the date of the application the share is recorded under Chapter-IV as belonging to him, or
(b) his right to the share has been established by a decree which is still subsisting at that date, or of © a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof.
rt
124. Restrictions and limitation on partition:-
Not withstanding anything in the last forging section-
(1) Places of worship and burial grounds held in common before partition shall continue to be so held after partition unless the parties othersie agree among themselves and record their agreement and file it with the Revenue Officer;
(2) Partition of any of the following properties, namely-
(a) any embankment, water course, well or tank, and any land on which the supply of water to any such work may depend,
(b) any grazing ground, and © 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-sharer or other persons directly or indirectly interested therein, or to diminish the utility thereof to those persons; and (3) the fact that a partition on the application of a joint owner of land would render necessary the ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...23...
servance into two or more parts of the land comprised in the tenancy of a tenant having a right of occupancy may, unless the tenant assents to the severance, be a sufficient reason for the .
disallowance of the partition in so far as it would affect the tenancy.
125 Notice of a applicant for partition:- The Revenue Officer, on receiving the application under Section 123 shall, if it is in order and not open to objection on the face of it, fix a day for the hearing thereof, and-
of
(a) Cause notice of the application and of the day so fixed to be served on such of the recorded co- sharers as have not joined in the application, and, if the share of which partition is applied for is a share rtin a tenancy, on the landlord also; and
(b) Issue a proclamation calling or any person who may have objections to the partition to appear before him either in person or by a duly authorized agent on a day fixed for the hearing of the application and to state them.
126. Addition of parties to application- On the day fixed for the hearing, or on any day to which the hearing may be adjourned the Revenue Officer shall ascertain whether any of the other co-sharers desire the partition of their shares also, and, if any of them so desire, he shall add them as applicants for partition.
18. It is undisputed that prior to partition order dated 30.11.2002, passed by Assistant Collector 1st Grade, Karsog, present appellant/ defendant alongwith proforma defendants were recorded as joint owner in possession of the land comprising khewat/ khatauni No.100/161 to 168, kita-25, measuring 10-18-9 bighas, situated in muhal Bhanera/ 462, Tehsil Karsog, District Mandi as entered in ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...24...
the jamabandi for the year, 2000-2001. It also emerge from the record that the plaintiffs/respondents vide .
registered sale deed No.258, dated 15.5.1998 Ex.PW1/A purchased land comprising khasra Nos. 234,238 and 229, measuring 0-18-14 bighas from proforma defendant Smt. Surtu Devi, possession whereof was allegedly delivered to of the plaintiffs and as such, the plaintiffs claimed themselves to be owners in possession of land bearing Khasra rt Nos.234, 238 and 229. Similarly, defendant also purchased 253 shares out of total shares appellant/ 4369 from khewat No.95, khatauni No.158 to 165, which was joint land between the predecessor-in-interest of plaintiffs and defendant alongwith proforma defendants.
The appellant/defendant by way of Civil Suit No.6 of 1998 prayed for permanent prohibitory injunction against Smt. Surtu Devi i.e. proforma defendant No.7 in the Court of learned Sub-Judge, Ist Class, Karsog, District Mandi, HP stating that land comprised in khewat No.95, khatauni No. 158 to 165 is joint between the plaintiffs and defendant alongwith other co-sharers. Defendant therein i.e. proforma defendant Surtu Devi by way of written statement stated the suit land is joint and un-partitioned ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...25...
between the parties and she further stated that Jai Ram and Janki sold their 253 share out of 4369 shares in the .
suit land and not any particular khasra numbers. However, fact remains that aforesaid suit filed by present appellant/defendant was decreed in toto in favour of defendant No.2 (present appellant) and proforma of defendant Surtu Devi was directed not to disturb the possession over the suit land of the plaintiff until the suit rt land is partitioned between the parties by the process of law by metes and bounds. Accordingly, the present appellant/defendant moved an application for partition before the Assistant Collector 1st Grade, Karsog arraying therein Smt. Surtu Devi (proforma defendant No.7) as party alongwith other co-sharers. Learned Assistant Collector 1st Grade, Karsog vide order Ex.PW2/A dated 30.11.2002 ordered for partition, whereby land comprising khasra No.231, 234/1, 238,kita-3,measuring 0-12-13 bighas was allotted to the present appellant/ defendant Hima Ram. It also emerge on record that on 7th July, 2003, revenue staff alongwith police delivered the possession of aforesaid land to the present appellant/defendant. Being aggrieved with the aforesaid action of revenue authorities ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...26...
putting appellant/defendant in possession of the land in question, respondents/plaintiffs filed instant Civil Suit in .
the Court of learned Civil Judge (Junior Division) Karsog, for declaration and possession. Learned trial Court below dismissed the suit of the plaintiffs/respondents on the ground of jurisdiction. The learned trial Court held that of jurisdiction of Civil Court is barred under Section 171 of the H.P. Land Code. At this stage, it would be profitable to rt reproduce Section 171(2)(xvii) and (xviii) as under:
171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers:- Except as otherwise provided by the Act-
(1) 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 of or take cognizance of the matter in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and 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 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 ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...27...
custom to periodical redistribution, 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;
19. Perusal of Section 171, clearly suggest that Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance in which the of State Government or any Revenue Officer exercise any powers vested in it or him under the Act. Section 171(2) rt ibid further provides that Civil Court shall not have jurisdiction in any claim for 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.
20. Close scrutiny of Section 171(xviii) of the Act, suggest that learned First appellate Court has fallen in grave error while holding that Civil Court had jurisdiction to entertain the suit filed by the plaintiffs because bare perusal of Section 171(xviii), suggest that any claim for partition of an estate, holding or tenancy or any question connected with, or arising out of proceedings for partition cannot be looked into by Civil Courts.
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21. Present appellant/defendant Hima Ram purchased 0-12-13 bighas land out of joint khata in the .
year, 1997 vide sale deed Ex.PC and possession thereof was also delivered to him. Similarly, respondents/plaintiffs purchased khasra Nos.234, 238 and 229 from co-sharer Smt. Surtu Devi vide sale deed dated 15.5.1998 Ex.PW1/A of and possession thereof was delivered to the plaintiffs. Now question, which needs to be determined, at this stage by this rt Court is "whether the parties appellant/defendant were put in to possession qua the to the lis i.e. specific portion of land as is being claimed by the respondents/plaintiffs". The respondents/ plaintiffs specifically claimed that they purchased the land comprising in khasra Nos. 234,238 and 229, measuring 0- 18-14 bighas from proforma defendant Smt. Surtu Devi vide sale deed No. 258, whereas appellant/defendant claimed that he alongwith proforma defendants were recorded joint owners in possession of land comprising khewat/ khatauni No.100/161 to 168, kita 25,measuring 10-18-9 bighas, situated in muhal Bhanera/462, Tehsil Karsog, District Mandi, HP.
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22. While examining the aforesaid aspect of the matter, this Court perused Ex. DB i.e. copy of judgment .
passed by learned Sub Judge, 1st Class, Karsog, District Mandi, HP in Civil Suit No.6 of 1998 filed by the present appellant/ defendant against Smt. Surtu Devi & others praying therein for permanent prohibitory injunction of claiming that the land comprised in khewat No.95, khatauni No.158 to 165 is joint between the plaintiffs and rt other co-sharers. Perusal of Ex.DB suggests that in that suit appellant/defendant claimed that vide registered sale deed dated 9.7.1997 Jai Ram and Janki sold their share of land i.e. 253/4369 measuring 0-12-13 bighas to the plaintiff and possession was given to the plaintiff from khatauni No.159 but admittedly defendants Smt.Surtu Devi and Daulat Ram specifically stated in their written statement filed in Civil Suit No.6 of 1998 that the suit land is joint and un-partitioned between the parties. They also stated that Jai Ram and Janki sold their 253/4369 share in the suit land and not any particular khasra numbers.
Accordingly, learned trial Court framed the following issues in that Civil Suit No.6 of 1998which are as under:-
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"1. Whether the plaintiff and defendants are co-sharers in the suit land alongwith other co-sharers as alleged? OPP.
.
2. Whether the registered sale deed dated 9/7/1997 by Sh. Jai Ram and Janku sold their 253/4369 share measuring 0-12-13 bighas to the plaintiff and exclusive possession was granted from the khatauni No.159 is alleged? OPP.
3. If the issues No.1 and 2 are proved in affirmative whether the plaintiff is entitled for the permanent prohibitory injunction as alleged? OPP.
of
4. Relief:-
23. Thereafter, learned trial Court on the basis of rt the pleadings as well as evidence on record held that plaintiff and defendants are co-sharers in the suit land along with other co-shares and restrained the defendant Smt. Surtu Devi not to disturb the possession over the suit land of the plaintiff until the suit land is partitioned between the parties by the process of law by metes and bounds. After perusing Ex.DB, this Court is of the view that though appellant/defendant Hima Ram and proforma defendant Smt. Surtu Devi purchased land from Jai Ram and Janki vide sale deed dated 9.7.1997 but at that time they were not put into the possession qua particular khasra numbers, rather Jai Ram and Janki sold their share of land to the aforesaid parties. In the present case, admittedly appellant/defendant has claimed that he ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...31...
alongwith proforma defendant were recorded as joint owner in possession of the land comprised khewat/ .
khatauni No.100/161 to 168, kita 25,measuring 10-18-9 bighas, situated in muhal Bhanera/462, Tehsil Karsog, District Mandi, HP as entered in the jamabandi for the year, 2000-2001, whereas respondents/plaintiffs claimed of that vide registered sale deed dated 15.5.1998, they purchased the land comprising khasra No.234,238 and rt 229, measuring 0-18-14 bighas from proforma defendant Smt. Surtu Devi and possession thereof was also delivered to them and as such, plaintiffs were owner in possession of land comprised khasra Nos. 234,238 and 229. Since Surtu Devi in the aforesaid suit No.6 of 1998 admitted the suit land to be joint and un-partitioned, it is not understood how vide sale deed dated 15.5.1998 she further sold the land comprising khasra Nos. 234,238 and 229,measuring to present respondents/ plaintiffs.
24. Though, Smt.Surtu Devi, who sold the land to present respondents/plaintiffs in her statement stated that she sold the suit land vide sale deed Ex.PW1/A to the plaintiff Dhyani Dassi and delivered the possession. But in her cross-examination, she feigned ignorance regarding ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...32...
the institution of civil suit by the present appellant/defendant Hima Ram as well as partition .
proceedings. She also admitted that she is having no knowledge of khasra numbers.
25. Close scrutiny of statement of PW-4, Smt. Surtu Devi , nowhere suggest that while selling the suit of land vide sale deed Ex.PW1/A to the plaintiffs/respondents she delivered the possession to them. Similarly, PW-5, rt Basanta Ram also stated that the suit land was in possession of Smt. Surtu Devi after sale by her to plaintiffs. She delivered the possession to them but PW-5 nowhere stated qua which khasra number possession was delivered to the plaintiffs/respondents. In his cross-
examination, he admitted that in the year, 1997 appellant/defendant Hima Ram purchased the land and possession was delivered to him but interestingly, neither Surtu Devi nor Basanta Ram uttered any word with regard to khasra number, possession of which was allegedly delivered to the plaintiffs/ respondents by Smt. Surtu Devi.
Though, it stands admitted by both the parties that respondents-plaintiffs had purchased the land from Smt. Surtu Devi , who had earlier purchased land from Jai Ram ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...33...
and Janki but none of the plaintiff witnesses specifically stated that the plaintiffs/respondents was put into .
possession of khasra Nos.234,238 and 229.
26. On the other hand, bare perusal of the judgment passed by learned trial Court in Civil Suit No.6 of 1998, clearly suggest that Smt. Surtu Devi specifically of stated in her written statement that suit land is joint and un-partitioned between the parties and it is also stated rt that Jai Ram and Janki had sold their 253/4369 shares in the suit land and not any particular khasra numbers. In view of the above, this Court sees no force in the contention put forth on behalf of the respondents/plaintiffs that vide sale deed Ex.PW1/A, Smt. Surtu Devi sold the land and delivered the possession of khara Nos. 234,238 and 229 to the respondents/plaintiffs.
27. Since learned trial Court in civil suit No.6 of 1998 held that the suit land is joint and un-partitioned and the defendants were directed not to disturb the possession of plaintiff over the suit land until the suit land is partitioned between the parties by the process of law by metes and bounds, present appellant/defendant filed an application before the learned Assistant Collector 1st Grade ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...34...
Karsog, for partition of the suit land in question. The learned Assistant Collector 1st Grade, Karsog vide order .
dated 30.11.2002 Ex.PW2/A ordered for partition, whereby khasra Nos.231,234/1 and 238 kita-3, measuring 0-12-13 bighas were allotted to the appellant/defendant. Perusal of Ex.PW2/A, clearly suggest that present appellant/ of defendant had impleaded co-sharers including Surtu Devi as a party in partition proceedings. It may be mentioned rt here that Smt. Surtu Devi, who sold the land to the respondents/plaintiffs was arrayed as defendant No.1 because admittedly in the revenue record Smt. Surtu Devi was recorded as one of co-owner of the joint land, which was admittedly purchased by the respondents/ plaintiffs.
Since name of respondents/plaintiffs was nowhere recorded as owner of the land in question in the revenue record, there was no occasion whatsoever, for the present appellant/defendant to implead respondents/ plaintiffs as a party to the partition proceedings.
28. In view of the above, this Court sees no illegality, whatsoever, in the order dated 30.11.2002, passed by learned Assistant Collector 1st Grade, Karsog in partition proceedings initiated allegedly at the back of the ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...35...
plaintiffs/respondents. After perusal of Ex.PW2/A, this Court is of the view that the impugned judgment passed .
by learned First Appellate Court is not based upon the correct appreciation of the evidence available on record as well as law because there was no necessity for the present appellant/defendant to implead the respondents/plaintiffs of as party in the partition proceedings because admittedly in the revenue record she was not recorded as co-owner of rt the joint land in question. Admittedly, suit land was jointly owned by the appellant/defendant and Smt. Surtu Devi at the time of partition. Since name of Smt.Surtu Devi was recorded as joint owner in the revenue record, appellant/defendant rightly impleaded her in the partition proceedings. Perusal of Ex.PW2/A, nowhere suggest that during the partition proceedings Smt. Surtu Devi ever disclosed the fact that she had already sold her share to respondents/plaintiffs. Had Smt. Surtu Devi disclosed the aforesaid factum of further sale of land in favour of the respondents/plaintiffs, the Assistant Collector 1st Grade would have impleaded respondents/ plaintiffs as party in the partition proceedings and as such, deposition made by her as PW-4 in the present suit is of no consequences in ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...36...
the present facts and circumstances of the case.
Admittedly, while deposing as PW-4 Smt. Surtu Devi .
admitted that she sold the land to the respondents/plaintiffs but in partition proceedings she never disclosed the aforesaid factum of sale in favour of the respondents/plaintiffs before the Assistant Collector 1st of Grade and as such, no fault/illegality can be found in the partition order passed by learned Assistant Collector 1st Grade, rt hence this Court sees no force in the reasoning given by learned First Appellate Court that since appellant/ defendant Hima Ram had prior knowledge of sale of land by Surtu Devi in favour of the respondents/plaintiffs, he could always implead her as party respondent in the partition proceedings. At the cost of repetition, it may be noticed that admittedly at the time of initiation of partition proceedings name of respondents/plaintiffs was nowhere recorded as joint owner in the revenue record, rather name of Smt. Surtu Devi, who sold the land in favour of the respondents/plaintiffs stood recorded as joint owner of the land sought to be partitioned and as such, she was rightly impleaded as party in the partition proceedings.
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29. Section 125 of the Act, clearly suggest that the Revenue Officer, on receiving the application under .
Section 123 i.e. moved by any joint owner of the land, may fix a day for the hearing while issuing notice of the application and of the day so fixed to be served on such of the recorded co-sharers who have not joined in the of application. Careful perusal of Section 125 of the Act, clearly suggests that pursuant to the receipt of application rt under Section 123, Revenue Officer is under obligation to issue notice to the recorded co-sharers any, who have been not joined/arrayed in the application for partition.
30. At the cost of repetition, it is reiterated that Section 125 of the Act only provides for the impleadment of the recorded co-sharers but in the present case admittedly at the relevant time Smt. Surtu Devi was recorded as co-sharer not plaintiff Dhayan Dassi. Apart from above, since Smt. Surtu Devi, who sold suit land in favour of plaintiff Dhayan Dassi, never disclosed the factum of sale made by her in favour of Smt. Dhayan Dassi before the Assistant Collector 1st Grade, Karsog, who effected the partition proceedings at the behest of the appellant/ defendant Hima Ram, this Court is unable to ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...38...
accept the contention put forth on behalf of the plaintiffs/respondents that leaned trial Court committed .
grave illegality while ordering for the partition in the absence of the plaintiffs, who purchased the land from Smt. Surtu Devi.
31. While exploring the answers to the of substantial questions of law framed at the time of admission, this Court had an occasion to peruse the entire rt evidence adduced on record.Perusal of judgment Ex. DB dated 27.9.1999, passed by learned Sub-Judge, 1st Class Karsog, District Mandi, HP in Civil Suit No.6 of 1998, clearly suggest that suit land was jointly owned and possessed by the parties prior to partition and at no point of time plaintiff Dhayan Dass was put into specific khasra number as claimed by the plaintiffs before the learned trial Court.
Smt. Surtu Devi, who sold the land to Smt.Dhayan Dassi categorically stated in Civil Suit No.6 of 1998 that suit land is jointly owned and possessed by the parties and similarly perusal of Ex.DC i.e. Instrument of partition, clearly depicts that pursuant to the judgment and decree dated 27.9.1999 passed by learned Sub Judge, 1st Class Karsog in Civil Suit No.6 of 1998, appellant/defendant ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...39...
initiated partition proceedings before the Assistant Collector 1st Grade Karsog, who after associating the .
interested parties partitioned the land in question vide order dated 30.11.2002. Perusal of Ex.DC, clearly suggest that Smt. Surtu Devi, who was recorded owner was arrayed as party in the partition proceedings. Hence, this of Court is unable to accept the contention put forth on behalf of the plaintiffs/ respondents that partition rt proceedings were conducted at her back and as such, same deserve to be quashed and set-aside. Since at no point of time plaintiff was recorded as co-owner, there was no occasion for the Assistant Collector 1st Grade Karsog to implead her as a party in the partition proceedings.
32. In the present case, perusal of the suit filed by the plaintiffs/respondents suggest that she filed suit for declaration and possession against the appellant/ defendant Hima Ram claiming herself to be recorded joint owner in possession of the land as per the description made hereinabove. Plaintiffs by way of suit referred hereinabove, stated that appellant/defendant Hima Ram moved an application for partition before the Assistant Collector 1st Grade Karsog, who was wrongly and illegally ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...40...
allotted khasra Nos. 231, 234/1, 238, kita-3, measuring 0-12-13 bighas to defendant/ appellant Hima Ram.
.
Plaintiffs/respondents also stated that pursuant to the partition proceeding, Revenue staff came to the spot and forcibly delivered the possession of land bearing khasra Nos. 231, 234/1, 238 to the defendant/appellant Hima of Ram.
33. Plaintiffs by way of civil suit referred rt hereinabove, prayed for quashing and setting aside of order dated 30.11.2002, passed by learned Assistant Collector 1st Grade, Karsog. Since by way of present suit, plaintiffs sought quashing and setting aside of the order dated 30.11.2002, which was admittedly passed by learned Assistant Collector 1st Grade Karsog in the partition proceedings, learned trial Court rightly dismissed the suit on the ground of jurisdiction, specifically concluding therein that jurisdiction of civil Court is barred under Section 171 of the Act in such like matters.
34. Plaintiffs/respondents being aggrieved with the aforesaid order passed by Assistant Collector 1st Grade Karsog, had an alternative remedy of review and thereafter appeals, if any.
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35. Perusal of Section 16 of the Act, clearly suggest that Revenue Officer either of his own motion or on the .
application of any party interested can review and on so reviewing modify, reverse or confirm any order passed by himself or by any of his predecessor in office. But in the present case, plaintiff instead of approaching authorities of as prescribed under Act filed the civil suit which was completely barred under Section 171 of the Act. Apart rt from review there is provision of appeal, as envisaged under Section 14 of the Act, wherein it has been provided that order of a Revenue Officer can be challenged before the Collector when is made by the Assistant Collector of either grade. Admittedly, in the present case order of partition dated 30.11.2002 was passed by learned Assistant Collector 1st Grade Karsog and as such, plaintiffs/ respondents instead of filing present suit could always file appeal under Section 14 of the Act before the Collector against the order passed by learned Assistant Collector 1st Grade Karsog. Since order dated 30.11.2002 was passed by Assistant Collector 1st Grade in the partition proceedings, this Court is unable to accept the reasoning given by learned First Appellate Court that since plaintiff ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...42...
was not made party to the partition order, therefore, order 30.11.2002, passed by learned Assistant Collector 1st .
Grade Karsog deserves to be declared illegal null and void.
Apart from above, perusal of impugned judgment passed by learned First Appellate Court, nowhere suggest that issue of jurisdiction in terms of Section 171 of the Act was of ever dealt with by the First Appellate Court while allowing the appeal preferred by the plaintiffs. Learned trial Court rt while accepting the plea of jurisdiction raised on behalf of the appellant/defendant returned specific finding on the basis of the documentary evidence placed on record that the jurisdiction of this Court is barred under Section 171 of the Act to entertain the present suit. This Court is also convinced after perusing the provision of law as referred hereinabove, that Civil Court had no authority/jurisdiction to look into the illegality, if any, of order dated 30.11.2002, passed by the Assistant Collector 1st Grade Karsog in partition proceedings, which appears to be carried out in accordance with the provisions as enshrined in the H.P. Land Revenue Act.
36. At this stage, it would be appropriate to examine applicability of the judgments having been relied ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...43...
upon by the learned counsel representing the respondents-plaintiffs with regard to jurisdiction of Civil .
Court while dealing with the order passed by the Assistant Collector 1st Grade in partition proceedings. This Court solely with a view to examine the correctness and genuineness of the arguments having been made by of learned counsel for the respondents-plaintiffs perused each and every judgments referred hereinabove by the
37. rt counsel of the plaintiff.
Careful perusal of all the judgments, suggest that express bar of jurisdiction of the Civil Court and examination of the scheme of particular Act to find adequacy or the sufficiency of the remedies provided may be relevant but admittedly same many not be decisive to sustain the jurisdiction of civil Court. In all the judgments referred above i.e. Hon'ble Apex Court as well as High Courts have held that when there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates the special right or a liability and provides for ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...44...
determination of right or liability and further lays down that all questions about the said right and liability shall .
be determined by the Court prescribed under the Act. At this juncture, it would be relevant to refer judgment passed by Hon'ble Apex Court in Dhulabhai etc. Versus State of Madhya Pradesh and another, AIR 1969 Supreme of Court 78:-
" The following principles regarding exclusion of rt jurisdiction of Civil Court may be laid down:-
(1) Where the statute gives finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provide may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...45...
creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about .
the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(3) Challenge to the provisions of the particular Act as ultra vires cannot of be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference rt from the decision of the Tribunals.
(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limited Act but it is not a compulsory remedy to replace a suit.
(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
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(7) An exclusion of jurisdiction of the Civil Court is not readily to be .
inferred unless the conditions above set down apply: Case law discussed."
38. Similarly, Hon'ble Apex Court in Rajasthan State Road Transport Corporation and another Vs. Bal Mukund Bairwa(2) (2009) 4 Supreme Court Cases 299" held as of under:-
"26.Applying the said principles to the facts of the rtcase wherein the plaintiffs alleged that the enquiries were conducted in violation of the Standing Orders whereas the stand taken by the Corporation was that the requirements contained in the Standing Orders were complied with, the Bench in Krishna Kant, however, noticed that no regulation had been framed by the Corporation in terms of Section 45 of the Act insofar as the employees answering the description of "workman" as defined in Section 2(s) of the 1947 Act are concerned. It appears that in Krishna Kant no dispute was raised that the provisions of the Standing Orders were applicable.
The question, therefore, which inter alias arose for consideration was as to whether in holding the department proceedings the provisions of the Certified Standing Orders were violated or not. While holding that the civil court's jurisdiction to entertain the suit was barred,it was held in Rajasthan SRTC V. Krishna Kant(1995)5 SCC 75.::: Downloaded on - 15/04/2017 21:14:34 :::HCHP
...47...
"37. It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decrees have been passed .
by the trial court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the trial court shall be governed by the principles enunciated herein-as also the suits and proceedings to be instituted hereinafter.
of With the greatest of respect to the learned Judges in Krishna Kant, if a statute while creating rights and obligations did not constitute a forum for enforcing the same, plenary jurisdiction of the civil court in rt view of Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke of Bombay (1976) 1 SCC 496 could not be held to have been taken away. There was also no occasion to extend the scope of the dicta laid down therein. The Certified Standing Orders lay down the terms and conditions of service. They did not create any new right such as Sections 25-F,25-G or 25-H of the Industrial Disputes Act, 1947. Any new right created under a statute would ordinarily be a right in favour of an employee over and above the general law. Let us, however, proceed on the basis that the dicta laid down therein is correct."
33. A dispute arising in between an employer and employee may or may not be an industrial dispute. The dispute may be in relation to or arising out of a fundamental right of the employee, or his right under a Parliamentary Act and the regulations framed thereunder, and/or a right ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...48...
arising under the provisions of the Industrial Disputes Act or the sister laws and may relate to same or similar rights or different rights, or even .
may be based on common law right or contractual right. The question in regard to the jurisdiction of the civil court must, therefore, be addressed having regard to the fact as to which rights or obligations are sought to be enforced for the purpose of invoking or excluding the jurisdiction of a Civil of Court."
39. Careful perusal of aforesaid judgments referred rt on behalf of the learned counsel for the respondents-
plaintiffs itself suggest that if a statute while creating rights and obligations does not constitute a forum for enforcing the same, plenary jurisdiction of the civil Court cannot be held to have been taken away. But in the present case, as has been discussed in detailed, specific mechanism has been provided under Section 122 of the H.P. Land Revenue Act, wherein complete procedure has been prescribed for laying challenge to the order passed by the Assistant Collector 1st Grade in partition proceedings. In the present case, admittedly, respondents-
plaintiffs before resorting to the remedy of filing civil suit never approached the authorities prescribed under the H.P. Land Revenue Act. Hence, in view of the above, this ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...49...
Court is of the view that when specific mechanism itself has been provided under the H.P. Land Revenue Act for .
laying challenge, if any, to the orders passed by the Assistant Collector 1st Grade, respondents-plaintiffs ought to have availed that alternate remedy at first instance before filing civil suit, if any.
of
40. Careful perusal of Section 171 of the H.P. Land Revenue Act clearly bars the jurisdiction of Civil Court in rt any claim for partition of an estate, holding or tenancy. In the present case admittedly respondents- plaintiffs are aggrieved with the partition order passed by the Assistant Collector 1st Grade Karsog. Hence, they had specific remedy of filing review/appeal under the Land Revenue Act and as such, learned trial Court rightly concluded that Civil Court has no jurisdiction in terms of Section 171 of the Act. Similarly, Hon'ble Apex Court in Bhanwar Lal and another v. Rajasthan Board of Muslim Wakf and others (2014)16 Supreme Court Cases 51; reiterated that civil courts can try all civil suits except which are expressly or impliedly barred. In the aforesaid case, Hon'ble Apex Court again reiterated that any ouster of jurisdiction should not be readily inferred by Courts and Courts would lean in ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...50...
favour of such construction which would uphold jurisdiction of Civil Court, but if the party who claimed .
jurisdiction of Civil Court succeed in establishing that there is specific bar under particular Act, Civil Court may not have jurisdiction. The relevant para-26 of the judgment is reproduced as under:-
of "26. It would also be profitable to refer to that part of the judgment where the Court gave guidance and the need for a particular approach which is required to deal with such under rt cases. In this behalf the Court specified the modalities as :-( Ramesh Gobindram v. Sugra Humayun MirzaWakf, (2010) 8 SCC 726) "11. Before we take up the core issue whether the jurisdiction of a civil court to entertain and adjudicate upon disputes regarding eviction of (sic from) wakf property stands excluded under the Wakf Act, we may briefly outline the approach that the Courts have to adopt while dealing with such questions.
12. The well settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try the suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court.
Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the civil courts and shift the onus of proof to the party that asserts that the civil court's jurisdiction is ousted.
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13. Even in cases, where the statute accords finality to the orders passed by the Tribunals, the court will have to see whether the Tribunal has the power to grant the reliefs which the civil courts would .
normally grant in suits filed before them. If the answer is in the negative, exclusion of the civil court's jurisdiction would not be ordinarily inferred. In Rajasthan SRTC Vs. Bal Mukund Bairwa(2)(2009) 4 SCC 299, a three Judge Bench of this Court observed:-
" There is a presumption that a civil Court has jurisdiction. Ouster of civil court's jurisdiction is of not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under a statute, the civil court can rt exercise its jurisdiction in respect of some matters particularly when the statutory authority or Tribunal acts without jurisdiction."
41. Conjoint reading of aforesaid judgment passed by the Hon'ble Apex Court though suggest that ouster of civil court's jurisdiction are not to be readily inferred by the court but in all the aforesaid judgments, Hon'ble Apex Court has specifically held that civil courts can try all civil suits which are not expressly or impliedly barred. In the case at hand, careful perusal of Section 171 of the H.P. Land Revenue Act clearly provides that civil Courts shall not exercise jurisdiction over any claim for partition of any estate holding. Hence, this Court sees no force in the contention put forth on behalf of the learned counsel representing the respondents-plaintiffs that civil court had ::: Downloaded on - 15/04/2017 21:14:34 :::HCHP ...52...
jurisdiction to try the controversy at hand , rather careful perusal of aforesaid provision i.e. Section 171 of the Act .
clearly suggest that jurisdiction of civil Court is expressly barred as far as partition proceedings are concerned and as such, this Court sees no illegality in the findings of the learned trial Court that Civil Court has no jurisdiction to try of the present suit in view of the specific bar contained under Section 171 of the Act.
42.
rt Moreover, plaintiffs had an remedy of filing review or appeal against the order passed alternative by the Assistant Collector 1st Grade Karsog in partition proceedings specifically stating therein that they ought to have been impleaded as party respondent in view of sale made in their favour by the proforma defendant Surtu Devi. In the present case, since at no point of time plaintiffs Dhayan Dassi and others were recorded as co-
owner at the time of initiation of partition proceedings, no fault can be found in the order of the Assistant Collector 1st Grade Karsog, whereas plaintiffs Dhayan Dassi and others could always move an application under Section 126 of the Act to implead them as party respondent.
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43. Consequently, in view of the aforesaid discussion made hereinabove, this Court is of the view that .
the learned First Appellate Court has fallen in grave error while accepting the appeal. Hence, the present appeal is allowed and judgment and decree passed by learned First Appellate Court is quashed and set-aside.
of Accordingly, the present appeal is disposed of alongwith pending application(s), if any.
rt (Sandeep Sharma )
September 16, 2016 Judge
(shankar)
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