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1998 DIGILAW 2 (HP)

GOPI CHAND v. SONAM DASS

1998-01-02

R.L.KHURANA

body1998
JUDGMENT R.L. KHURANA, J.—The appellants before this Court are the plaintiff and proforma defendant No. 4, hereinafter referred to as the plaintiffs. They have preferred the present second appeal against the judgment and decree dated 10.7.1991 of the learned Additional District Judge (1), Shimla, affirming the judgment and decree dated 13.7.1987 of the learned Senior Sub Judge, Kinnaur at Kalpa. 2. The subject-matter of the dispute between the parties is the land measuring 0-00-48 Hects. comprising of old khata No. 114 min, khatauni No. 158 and khasra No. 249/1 corresponding to the present khata No. 67, khatauni No. 125, Khasra Nos. 640 and 641 of village Aasrang, Tehsil Moorang, District Kinnaur, specifically described in the plaint and the Jamabandi for the year 1978-79 and hereinafter referred to as the land in dispute. 3. Briefly stated, the facts of the present case are that the land in dispute was joint of the parties. The defendants sometime in the year 1981 without the consent and permission of the plaintiffs started construction of a house in such joint land in an unauthorized manner, where upon the plaintiffs filed a suit for permanent injunction against the defendants for restraining them from raising such construction. The defendants did not put in appearance in such suit. They were proceeded against exparte. They, however, succeeded in raising the construction. The suit filed by the plaintiffs was decreed ex parte against the defendants whereby a mandatory injunction was granted in favour of the plaintiffs for the demolition/removal of the construction raised by the defendants. 4. The plaintiffs thereafter applied to the Assistant Collector 1st Grade, Moorang for the partition of the joint holding of the parties. Such partition was allowed on 6.8.1983 and consequent upon such partition the land in dispute came to be allotted to the plaintiffs. The necessary mutation qua such partition was sanctioned on 17.10.1983. 5. The case of the plaintiffs is that since the land in dispute has come to their share in the partition ordered by the Assistant Collector 1st Grade, they are entitled to possession thereof by way of demolition of the super structure unauthorisedly raised by the defendants. They have accordingly prayed for possession of the land in dispute and mandatory injunction for the demolition/ removal of the super structure raised by the defendants therein. 6. The defendants while resisting the suit asserted their ownership qua the land in dispute. They have accordingly prayed for possession of the land in dispute and mandatory injunction for the demolition/ removal of the super structure raised by the defendants therein. 6. The defendants while resisting the suit asserted their ownership qua the land in dispute. Objections as to the maintainability of the suit and valuation of the suit were raised. It was pleaded that the earlier ex parte decree was obtained by fraud. 7. On the pleadings of the parties, following issues were framed by the learned Senior Sub Judge:— 1. Whether the suit is not maintainable as alleged? O.P.D. 2. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction, if so, what is its proper value? O.P.D. 3. Whether this suit is barred as alleged under para 4 of the W.S.? O.P.D. 4. Whether the suit land fell in share of the plaintiff and defendant No. 4 in partition, if so to what effect? O.P.P. 5. Whether the plaintiff is entitled to get possession of the suit land by demolition of the structure standing on it? O.P.P. 6. Relief. The learned Senior Sub Judge found issue Nos. 1 and 3 in favour of the defendants and issue No. 5 against the plaintiffs. Issue Nos. 2 and 4 were decided in favour of the plaintiffs. Consequent upon the findings recorded under issue Nos. 1, 3 and 5, the suit of the plaintiffs was dismissed by the learned Senior Sub Judge vide judgment and decree dated 13.7.1987. 8. The appeal preferred by the plaintiffs against the judgment and decree of the learned Senior Sub Judge was dismissed by the learned Additional District Judge (1), Shimla, vide judgment and decree dated 10.7.1991. 9. Admittedly, on a previous occasion the plaintiffs had obtained an ex parte decree against the defendants for a mandatory injunction for the removal/ demolition of the superstructure raised by the defendants in the land in dispute. It is also not denied that such ex parte decree for mandatory injunction was never enforced by the plaintiffs by seeking the execution thereof under Order 21 of the Code of Civil Procedure. Instead the plaintiffs approached the Assistant Collector for the partition of the joint holding without disclosing the construction of a house in the land in dispute by the defendants. Instead the plaintiffs approached the Assistant Collector for the partition of the joint holding without disclosing the construction of a house in the land in dispute by the defendants. There is also no denial that partition of the joint holdings of the parties was ordered by the Assistant Collector and a mutation in that regard stands sanctioned in favour of the plaintiffs on 17.10.1983, 10. The present suit for possession and demolition of super structure has come to be filed on 18.9.1984 after the partition was ordered by the Assistant Collector. It is not the case of the plaintiffs that consequent upon partition and allotment of the land in dispute in their favour, they were placed into possession of the land in dispute by the Assistant Collector. As per their own case as set out in the plaint, though the land in dispute came to their share during the partition-of the joint holdings, they were not placed in possession of the land in dispute. They have-averred that the cause of action accrued to them and they derived the right for possession of the land in dispute on 17.10.1983, that is, the date the necessary mutation qua partition was allotted and sanctioned. 11. Chapter IX comprising of Sections 122 to 138 of the HP. Land Revenue -Act, 1953 (for short : Revenue Act) deals with partition of estates. 12. An application for partition of a joint holding is to be made to a Revenue Officer under Section 123 of the Revenue Act. Section 124 jays down restrictions and limitations on partition. Section 125 provides for notice of application for partition. Section 126 deals with addition of parties to the application for partition. Section 127 empowers the Revenue Officer to disallow the partition absolutely if after examining the parties present before him, he is of the opinion that there is no good and sufficient cause to allow partition. Section 128 deals with the procedure an admission of application for partition. Section 129 provides for disposal of questions as to title in the property to be partitioned either by the Revenue Officer himself as a Civil Court or to direct the parties to seek adjudication from a competent Court. Section 130 deals with disposal of other questions by the Revenue Officer and an order passed by him is appealable under Sub section (2) of the said Section. 13. Section 130 deals with disposal of other questions by the Revenue Officer and an order passed by him is appealable under Sub section (2) of the said Section. 13. Section 131 of the Revenue Act provides for administration of property excluded from partition while Section 132 deals with distribution of revenue and rent after partition. Section 133 prescribes that when a partition is completed, the Revenue Officer shall cause an instrument of partition to be prepared indicating the date on which the partition is to take effect. 14. Section 134 provides for delivery of possession of property allotted on partition. It reads :— "Delivery of possession of property allotted on partition. An owner or tenant to whom any land or portion of a tenancy, as the case may be, is allotted in proceedings for partition shall be entitled to possession thereof, as against the other parties lo the proceedings and their legal representatives and a Revenue Officer shall, on application made to him for the purpose by any such owner or tenant at any time within three years from the date recorded in the instrument of partition under the last foregoing section, give effect to that instrument so as it concerns the applicant as if it were a decree from immovable property.” Section 135 provides for affirmation of partition privately affected. Section 136 deals with estimates and levy of costs to be paid by the parties. Section 137 deals with re-distribution of land according to customs. Section 138 that the Revenue Officer by whom the proceedings for partition may be taken shall not be below the class that of Assistant Collector of the first grade. 15. As started above, the plaintiffs were never placed into possession of the land in dispute by the Assistant Collector consequent upon partition. Therefore, the remedy available to the plaintiffs was to approach the Revenue Officer concerned under Section 34, Revenue Act for the delivery of possession of the lain in dispute which was allotted to them in partition. 16. The plaintiffs, instead of taking recourse to the provisions contained in Section 134 of the Revenue Act, have filed the present suit for possession of the land in dispute. 16. The plaintiffs, instead of taking recourse to the provisions contained in Section 134 of the Revenue Act, have filed the present suit for possession of the land in dispute. Such a suit is clearly barred from the purview of the Civil Court in view of Clause (xvii) of sub-section (2) of Section 171 of the Revenue I Act, which provides: "(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. (Emphasis supplied) Sub-section (i) of Section 171 also lays down that a Civil Court shall not have jurisdiction in any matter which the State Government or 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 the Act. 17. The matter with regard to delivery of possession of the land in dispute consequent upon partition ordered by the Revenue Officer falls within the exclusive jurisdiction of such Revenue Officer within the ambit of Section 134 of the Revenue Act. Therefore, if the plaintiffs have failed to obtain possession under Section 134 of the Revenue Act, they cannot approach the Civil Court for such relief of possession. The Civil Court has no jurisdiction in view of the provisions contained in Section 171(1) and Section 171(2)(xvii) of the Revenue Act. 18. There is yet another aspect of the case. Admittedly, on an earlier occasion a mandatory decree for demolition of the superstructure was granted ex parte in favour of the plaintiffs. Such decree never came to be executed by the plaintiffs. 19. Article 135, Limitation Act, 1963, provides for a period of limitation of three years for execution of a decree for mandatory injunction. The requisite period stands expired and the decree has remained unexecuted. Due to expiry of the period of limitation, the plaintiffs have lost the remedy of mandatory injunction. The plaintiff, therefore, are debarred from enforcing such remedy by way of the present suit. The requisite period stands expired and the decree has remained unexecuted. Due to expiry of the period of limitation, the plaintiffs have lost the remedy of mandatory injunction. The plaintiff, therefore, are debarred from enforcing such remedy by way of the present suit. Be it stated that the present suit for mandatory injunction is based on the same cause of action on which the previous suit was based and as such the present suit will be barred under Section 11, Code of Civil Procedure. Resultantly, the present appeal fails and the same is accordingly dismissed, leaving the parties to bear their own costs. Appeal dismissed.