Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 351 (HP)

Ujaal Sukh v. Mansua

2002-12-23

R.L.KHURANA

body2002
JUDGMENT : R.L. Khurana, J. This second appeal at the instance of the plaintiff has been directed against the judgment and decree dated 14.1.2000 of the learned District Judge, Kinnaur at Rampur, reversing the judgment and decree dated 18.9.1997 of the learned Senior Sub Judge, Kinnaur in Civil Suit No. 19 of 1995. 2. The plaintiff filed a suit claiming the following relief: - "Decree for declaration declaring the plaintiff to be the owner in possession of land comprised in Khasra No. 1003, measuring 0-10-23 hect. of Up-Mohal Kashmir, Tehsil Kalpa of District Kinnaur and that the order of partition and the proceedings thereafter are void, illegal, arbitrary and not binding upon the plaintiff with consequential relief of injunction restraining the defendant No.1 (Mansua) from interfering into the possession of the plaintiff over the suit land." 3. The pedigree table showing the relationship of the parties as per Ex. DW 1/G is as under: - IMAGE 4. It appears that defendant No. 1 on 8.10.1987 had approached the Assistant Collector 1st Grade, Kalpa, for the partition of the joint holdings, including the suit land. In such partition proceedings the plaintiff, defendants No. 2 to 4 were arrayed as respondents. The Assistant Collector on 10.12.1987 passed a preliminary order directing the partition of the joint holdings by metes and bound in accordance with the respective shares oil the parties on the terms and conditions contained in the said order. Such preliminary order dated 10.12.1987 appears to have been passed with the consent of the parties since none had preferred objections to the partition of the joint holdings. 5. After the passing of the preliminary order dated 10.12.1987, land belonging to the parties was partitioned by metes and bound and the final document of partition was drawn up by the Assistant Collector on 27.6.1989 on and form which date the partition was ordered to take effect. The final document of partition is Ex. DW 1/B. As per this partition, the suit land comprising of khasra No. 1003 was divided into two parts and allotted khasra Nos. 1003/1 and 1003/2. Land measuring 0-04-74 hectares comprising of khasra No. 1003/1 was allotted to the plaintiff, while land measuring 0-05-49 hectares comprising of khasra No. 1003/2 was allotted to defendant No.1. it appears that thereafter the parties were placed into possession of the land falling to their respective shares as per the partition. 1003/1 and 1003/2. Land measuring 0-04-74 hectares comprising of khasra No. 1003/1 was allotted to the plaintiff, while land measuring 0-05-49 hectares comprising of khasra No. 1003/2 was allotted to defendant No.1. it appears that thereafter the parties were placed into possession of the land falling to their respective shares as per the partition. The necessary mutation Ex. DW1/C in accordance with the partition was sanctioned and necessary effect of partition was incorporated in the revenue record. The partition proceedings were ultimately consigned to the records on 28.2.1990 as having been duly carried out. The parties thereafter appear to have accepted the partition since none assailed the same by way of an appeal or otherwise. 6. On 16.5.1995 the suit, out of which the present appeal has arisen, came to be filed by the plaintiff seeking the reliefs as detailed above. It was averred that though the suit land is recorded under the joint ownership of the parties in the revenue record, the same is in exclusive possession of the plaintiff for the last more than 30 years. An orchard was planted therein by the plaintiff in the year 1968, the plaintiff has been enjoying the suit land without any interference from any one. His possession over the suit land has been open, hostile, peaceful, continuous and the knowledge of the defendants. He has thus acquired title thereto by virtue of his continuous adverse possession. 7. It was further pleaded that there has been a private partition between the parties more than 30 years back and the suit land had fallen to the share of the plaintiff. Such private partition was duly reported to the revenue authorities and the separate possession of the parties came to be recorded. Inspite of a private partition having been effected between the parties, the defendants approached the Assistant Collector 1st Grade, Kalpa for the partition of their land. In such proceedings, a specific plea was raised by the plaintiff that the land of the parties stood-partitioned. The partition proceedings were, however, wrongly decided ex-parte without going into the question of private partition. As such the order of partition passed on 30.8.1989 insofar as suit land is concerned, was illegal, null and void and not binding on the plaintiff. 8. According to the plaintiff, defendants on 27.4.1995 tried to take forcible possession of the land in dispute. Resultantly, the suit was filed. 9. As such the order of partition passed on 30.8.1989 insofar as suit land is concerned, was illegal, null and void and not binding on the plaintiff. 8. According to the plaintiff, defendants on 27.4.1995 tried to take forcible possession of the land in dispute. Resultantly, the suit was filed. 9. The suit was resisted and contested only by defendant No. 1. It was pleaded that the plaintiff earlier was coming in "Hissedar" possession on the suit land which was joint of the parties. The same was partition alongwith other joint lands of the parties by the Assistant Collector 1st Grads vide order dated 27.6.1989. No question of title was raised by the plain ' before the Assistant Collector in the partition proceedings. Nor the case of private partition was set up by him. Out of the suit land an area measuring 0-05-49 hectares came to the share of defendant No.1 while the remains area of 0-04-74 hectares fell in the share of the plaintiff and since after such partition, the parties are coming in possession of their respective area out of the suit land. 10. On the pleadings of the parties, following issues were framed by the learned trial Court: 1. Whether the plaintiff has become owner of the suit land by way of adverse possession, as alleged? OPP 2. Whether the suit land has been allotted to plaintiff in a family partition, which took place thirty years ago, as alleged, if soils effect? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff is estopped from filing this suit by his ad and conduct? OPD 5. Whether the suit is not properly valued for the purposes of Court fees and jurisdiction? OPD 6. Whether order of partition dated 30.8.1989 is illegal, void and arbitrary, as alleged ? OPP 7. Relief. 11. The learned trial Court decided issues No.1 and 6 against the plaintiff and issues No. 3 to 5 against the defendants. Under issue No.2 though the learned trial court found that the suit land was not allotted to the plaintiff in private family partition and that the suit land stood partitioned under the orders of the Assistant Collector 1st Grade, came to the conclusion that the plaintiff was in possession of the whole of the suit land. Under issue No.2 though the learned trial court found that the suit land was not allotted to the plaintiff in private family partition and that the suit land stood partitioned under the orders of the Assistant Collector 1st Grade, came to the conclusion that the plaintiff was in possession of the whole of the suit land. The learn trial Court on 18.9.1997 while dismissing the suit for declaration granted a decree for permanent injunction in favour of the plaintiff thereby restrains the defendants from interfering with the possession of the plaintiff over that part of the suit land which was allotted to defendant No.1 in partition comprising of khasra No. 1003/2 till he was evicted there from by due process of law. Insofar as land measuring 0-04-49 hectares comprising of khasra No. 1003/1 is concerned, the plaintiff was held to be the owner and in possession thereof in pursuance of the order of partition passed by the Assistant Collector 1st Grade, Kalpa. 12. Feeling aggrieved by the partial dismissal and partial decretal of the suit by the learned trial court, the plaintiff as well as defendant No.1 went up in appeal before the learned District Judge, being Civil Appeals No. 39 and 28 of 1998. The learned District Judge, vide a common judgment dated 14.1.2000 dismissed the appeal of the plaintiff and allowed the appeal preferred by the defendant. Consequently, the judgment and decree of the learned trial court granting permanent injunction against the defendants were set aside and the suit of the plaintiff was dismissed in its entirety. The learned District Judge came to the conclusion that the suit land stood partitioned by the Assistant Collector 1st Grade and since after such partition the defendant No.1 is the owner and in possession of land measuring 0-05-49 hectares comprising of khasra No. 1003/2 out of the suit land while the plaintiff is the owner and in possession of the land measuring 0-04-74 hectares comprising of khasra No. 1003/1 out of the suit land. The plea of the plaintiff as to private partition was negatived. 13. The plaintiff has, thus, approached this court by virtue of the present second appeal, which was admitted for hearing on 1.6.2000 on the following substantial questions of Law : 1. The plea of the plaintiff as to private partition was negatived. 13. The plaintiff has, thus, approached this court by virtue of the present second appeal, which was admitted for hearing on 1.6.2000 on the following substantial questions of Law : 1. Whether delivery of physical possession of land on the basis of exparte order passed by revenue officer, partitioning the joint holding can be presumed, merely on the basis that the mutation on the basis of such partition order stands sanctioned. Court the courts below raise presumption of delivery of physical possession of such property, without there being legal evidence of delivery of possession through warrant on the basis of instrument of partition, as envisaged under the provisions of H.P. Land Revenue Act? Are not the findings of the courts below vitiated on account of wrong assumption of correct legal position? 2. When the trial court accepted the claim of plaintiff-appellant regarding division of property by private partition, could the court by relying on entries in revenue record hold that the possession of plaintiff on such land is in the capacity of joint owner, for denying the relief of declaration and injunction to the plaintiff-appellant? 3. Whether findings of both the courts on the alternative plea raised by the plaintiff - appellant regarding acquisition of exclusive title by adverse possession are vitiated on account of rejecting material evidence as well as by relying on inadmissible evidence while deciding such issue? 4. Whether the lower appellate court has illegally and without any legal or justifiable cause set aside the findings of the trial court, granting injunction to the plaintiff-appellant for part of the suit land? 14. During the course of hearing of the appeal, it was contended on behalf of the defendant No. 1, at the very out-set that the substantial questions of law, on which the present appeal was admitted do not arise in the present case. It was further contended that the suit of the plaintiff as laid was neither within the jurisdiction of the Civil Court nor the same was within time. 15. Taking the question of jurisdiction first, it may be noticed that the plaintiff has sought the following reliefs in the suit. It was further contended that the suit of the plaintiff as laid was neither within the jurisdiction of the Civil Court nor the same was within time. 15. Taking the question of jurisdiction first, it may be noticed that the plaintiff has sought the following reliefs in the suit. (a) Declaration to the effect that : (1) The land in dispute was allotted to him in a family partition; (2) Alternatively he has acquired title to the suit land by adverse possession; and (3) The order of partition dated 30.8.1989 of the Assistant Collector is illegal, null and void and not binding on the rights of the plaintiff, and Permanent injunction as a consequential relief. 16. There is no dying that the Assistant collector 1st Grade, under the provisions of H.P. Land Revenue Act, 1953, has the jurisdiction to partition the suit land unless a question of title had been raised before him by any of the parties. It is on record that no question of title was raised by the plaintiff before the Assistant Collector 1st Grade during the partition proceedings. Rather the plaintiff had consented to the partition of the joint lands of the parties. 17. Section 171 (2), H.P. Land Revenue Act, 1953, bars the jurisdiction of the Civil Courts in the matters falling under Clauses (i) to (xxvi) thereof. Under Clauses (Xvii) and (xviii) the jurisdiction of the Civil courts in respect of the following matters has been ousted: (a) 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; and (b) any question as to the allotment of land on the partition of an estate, holding or tenancy, or as to the distribution of land subject by established custom to periodical redistribution, 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. 18. 18. By claiming the relief (a)(iii) above for declaring the order of partition dated 30.8.1989 of the Assistant Collector to be illegal, null and void and not binding on his rights, the plaintiff in fact is seeking to assail the validity of the partition proceedings, which in the absence of question as to title having been raised before the Assistant Collector, was within the jurisdiction of the Assistant Collector under the H.P. Land Revenue Act, 1953. Vide section 171 (2)(xvii) and (xviii) above, the jurisdiction of the civil court is barred. Therefore, the relief detailed as (a)(iii) above is beyond the jurisdiction of the civil court. 19. Assuming for the sake of arguments that such a relief can be granted by the civil courts, the suit of the plaintiff insofar as this relief is concerned, is barred by time having been filed beyond the period prescribed under Article 100. Limitation Act, 1963. 20. It is significant to note that the plaintiff in his suit has assailed the order of partition dated 30.8.1989 passed by the Assistant Collector 1st Grade. In fact there is no order dated 30.8.1989. The preliminary order of partition was passed by the Assistant Collector on 10.12.1987 while the final order was passed on 27.6.1989. As stated above, the Assistant Collector 1st Grade, in the absence of question of title having been raised before him, had the jurisdiction to pass the order for partition. Therefore, such order has necessarily to be avoided by the plaintiff before the relief can be granted to him. 21. It has been held by this court in Maj. Sudhir Sewal and others v. Madan Kishore and others {1998 (1) Sim. L.J. 138 and in Atama Ram (deceased) through his L.Rs Roop Ram and others v. Lachmi, 1998 (1) Sim.L.C. 190 that if the impugned order is such that it has to be set aside before any relief can be granted, the provisions of Article 100, Limitation Act, 1963 would be attracted. If, however, the order had been passed without jurisdiction, the same can be ignored as nullity and it is not necessary to get it set aside. In such a case Article 100 would not apply but the case would be governed by residuary Article 113 if no other particular Article of the Limitation Act is shown to be applicable. 22. If, however, the order had been passed without jurisdiction, the same can be ignored as nullity and it is not necessary to get it set aside. In such a case Article 100 would not apply but the case would be governed by residuary Article 113 if no other particular Article of the Limitation Act is shown to be applicable. 22. Even if the residuary Article 113 is applied in the present case, the suit in respect of relief (a) (iii) above would be barred by time. Insofar as other reliefs claimed in the suit are concerned, the same, undisputedly, are within the jurisdiction of the civil Court and the suit to that extent is within time. 23. Having dealt with the above two objections raised on behalf of the defendant No. 1, now proceed to examine and determine the substantial a questions on which the present appeal was admitted for hearing. 24. This question does not arise on the facts and in the circumstances of the case. Firstly, the question pertains to the validity or otherwise of the order of partition passed by the Assistant Collector 1st Grade. Such question has been held above neither to be within the jurisdiction of the civil court nor within time. Secondly, the plaintiff has not set up the case in his pleadings that consequent upon the order of partition, the parties were never placed into possession of their respective lands. In the absence of specific pleadings, the question does not arise and cannot be gone into Question No.2. I 25. This question also does not arise in the present case. The fact whether there has been a private partition between the parties or not, again would touch the validity of the order of partition passed by the Assistant Collector. It has been held above that the validity of the order of partition as passed by the Assistant collector cannot be gone into since such question is neither within the jurisdiction of the civil court nor the same is within time. Question No. 3. 26. On the basis of evidence coming on the record, the two courts below have rightly held that the plaintiff has not acquired title to the suit land by adverse possession. There has been no misreading or mis-appreciation of evidence by the two courts below. Neither any material evidence has been rejected nor any inadmissible evidence has been relied upon. 26. On the basis of evidence coming on the record, the two courts below have rightly held that the plaintiff has not acquired title to the suit land by adverse possession. There has been no misreading or mis-appreciation of evidence by the two courts below. Neither any material evidence has been rejected nor any inadmissible evidence has been relied upon. The plaintiff himself while appearing as PW 1 has not stated even a single word about his adverse possession. The case put forth by him as PW 1 is that consequent upon the private partition between the parties which took place more than 30 years before the suit, the suit land had fallen to his share. He has not stated that he is adverse possession and if so, since when. Question No.4. 27. The suit land stood partitioned between the parties in terms of the order of the Assistant collector. In the absence of pleadings and evidence that actual possession of such partitioned land was never delivered to the parties, the learned first appellate court has rightly held the plaintiff and defendant No. 1 to be the owners and in possession of the respective areas tailing to their share and in declining the relief of injunction in favour of the plaintiff. 28. As a result the present appeal fails and the same is accordingly dismissed with costs throughout.