Punjab-Haryana High Court
Didar Singh & Anr vs Gian Kaur &Ors on 5 July, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1968 of 2011(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1968 of 2011(O&M)
Date of Decision:-05.07.2012
Didar Singh & Anr.
......Appellants.
Versus
Gian Kaur &Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. K.S. Dadwal, Advocate for the appellants.
***
JASWANT SINGH, J.
Plaintiffs/appellants are in second appeal against the concurrent findings returned by both the courts below whereby their suit for possession by way of partition of 1 kanals 16 marlas of land out of 4 kanals 6 marlas of plot as mentioned in the plaint was dismissed by learned Additional Civil Judge(Senior Division), Hoshiarpur vide judgment and decreed dated 04.02.2004 and the findings thereof have been affirmed in appeal by learned Additional District Judge(Adhoc), Fast Track Court, Hoshiarpur vide its judgment and decree dated 22.12.2010.
Brief facts for proper adjudication of the case are that plaintiffs and defendants jointly owned the residential plot in question. Plaintiffs alleged that they have a share to the extent of 1 kanal 16 marlas out of the entire disputed site as declared by the Civil Court in previous litigation RSA No.1968 of 2011(O&M) #2# between the parties. It was further averred that the defendant no.1 filed a suit for injunction against the plaintiffs which was decreed with the direction that the present plaintiffs would not disturb the possession till the partition of the suit land and in view of the said decree in favour of defendant no.1(Tarsem Singh), he has tried to raise further construction in the disputed site without getting the same partitioned and, therefore, the present suit was preferred.
Upon notice defendant no.1 Tarsem Singh now deceased and being represented by his Lrs filed written statement whereby it was stated that the suit is liable to be dismissed as the best course for the parties to get their share recorded in the revenue record is under Section 123 of the Punjab Land Revenue Act, 1887. It was stated that the plaintiffs have intentionally not mentioned all the properties which are joint among the parties and, therefore, they have not come to the court with clean hands. It was averred that in view of the previous litigation and compromise which was the basic document in the said litigation, answering defendant is exclusive owner in possession of the land purchased by him. It was further averred that plaintiffs are trying to take undue advantage of the revenue record which is not relevant in the abadi area in which the suit property is situated.
Defendant nos.2 & 3 namely Gurmeet Singh and Nirmal Singh since deceased and being represented by their Lrs filed the written statement to the effect that the plaintiffs are not the owner of 1 kanal 6 marla of land as alleged by them in their plaint. It was further stated in the written statement that the civil court has no jurisdiction to try the present suit. Said RSA No.1968 of 2011(O&M) #3# land is not in the abadi site and has to be assessed as per revenue Act. All the other allegations were denied and prayer was made for dismissal of the suit.
Replication was filed wherein the entire contents of the plaint were reiterated and those of the written statements were denied.
From the pleadings of the parties issues were framed. Both sides led their evidence in support of their respective claims and after appreciating their evidence learned trial Court dismissed the suit vide its order dated 4.2.2004 and findings thereof have been affirmed in appeal by learned lower Appellate Court vide its judgment and decree dated 22.12.2010. Hence the present second appeal.
I have heard learned Counsel for the appellants and have gone through the case file carefully with his able assistance.
Learned Counsel for the appellants has argued that the findings returned by both the courts below are based on conjectures and surmises thereby leading to perversity and therefore, the impugned judgment and decrees are liable to be set aside. It was further argued that in view of the admission made in the written statement with regard to the nature of the suit land, the learned Courts below have erred in law by holding that the Civil Courts do not have jurisdiction to entertain the suit.
After hearing learned Counsel for the appellants and perusing the case file, this Court is of the considered view that a perusal of the paper book reveals that although plaintiff Didar Singh has claimed that the plaintiffs are the owners of 1 kanals 16 marlas of land as per their share in the joint property out of 4 kanals 6 marlas in total, but while facing cross RSA No.1968 of 2011(O&M) #4# examination, he has categorically admitted that he is in possession of 1 kanal 18 marlas of land and he has filed this suit in respect of 3 kanals and he further admitted that the suit property is assessed to land revenue. He has also admitted that he filed a suit for partition bearing case no.27 which includes the suit land. That application was decided in his favour and in appeal, case was remanded back to the Assistant Collector by the SDO (Civil) with powers of Collector, Hoshiarpur. Though he has denied that he has joint land with the defendants other than the suit land, but he has admitted that there was litigation with regard to the property in dispute and some other property. Furthermore, the learned lower Appellate Court has also observed that as per jamabandi Ex.P-2, Didar Singh and Mohinder Kaur plaintiffs have been recorded to be owners in possession of the land detailed in the jamabandi which is an agricultural land and some of the land is Banjar Kadim. Furthermore, jamabandi Ex.P-3 reveals that Gurmeet Singh has been recorded as owner to the extent of 78 share, Rattan Kaur 24 share, Sunder Singh 42 share, Rollu Ram 36 share in khewat no.115, Khatauni No.165. Gurmeet Singh has 65 share, Rattan Kaur 20 share, Sunder Singh 29 share in Khewat No.118, Khatauni no.168 and Gurmeet Singh 130 share, Rattan Kaur 40 share, Nirmal Singh 21 share in Khewat No.119 Khatauni no.169 and the nature of the land has been recorded as Banjar Kadim and Gair Mumkin taur.
Although the plaintiffs/appellants have claimed that the suit property is situated with the abadi area and therefore is not an agricultural land, however, a perusal of the testimony of the plaintiff Didar Singh itself reveals that he has admitted that the suit land is subject to land revenue and RSA No.1968 of 2011(O&M) #5# he further admitted that earlier a partition application was allowed but the order of the partition was set aside by SDO(Civil), exercising the powers of Collector and the case was remanded back Assistant Collector, Ist Grade which included the suit land as a subject matter of that partition. Thus, it becomes amply clear that when the nature of the land has been admitted by the plaintiff himself to be an agricultural one, and even the revenue record shows the same to be agricultural in nature then it is only the revenue authorities who have the competent jurisdiction to try a suit for partition. In these circumstances, a civil court cannot go further in deciding a suit for partition regarding the agricultural land. No counter to the said admissions or the proposition of law as is well settled by now, has been pointed out at the time of arguments by the learned Counsel for the appellants.
No other point was raised before me during the course of arguments.
In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal as no perversity is found in the findings returned by the courts below, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE July 05, 2012 Vinay