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2002 DIGILAW 399 (PNJ)

Jai Singh v. Bhanti

2002-04-10

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This is a revision petition directed against the order dated 6.2.2002 passed by the Additional District Judge, Hisar dismissing the appeal of the plaintiff-petitioners which was directed against the order dated 13.12.2001 passed by the Additional Civil Judge (senior Division), Hansi. The Additional Civil Judge vide his order dated 13.12.2001 has dismissed the application of the plaintiff-petitioners filed under order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure, 1908 (for the brevity, the Code). 2. Brief facts of the case necessary for deciding the contrary raised in this petition are that the plaintiff-petitioners filed a suit for declaration with consequential relief of permanent injunction against the defendant-respondent alleging that they are owner of the suit land as detailed in the head note of the plaint. The basis of this assertions was that they became owner in possession of the suit land by way of release deed No. 716 dated 9.6.2000. It was further asserted that the proceedings initiated by them for partition of the suit land before the Assistant collector IInd Grade where the question of title has also been raised were without jurisdiction, illegal, void ab-initio. Further assertion was made that the defendant-respondent was bent upon to dispossess the plaintiff-petitioners from the suit land. Along with the suit an application under order 39 rules 1 and 2 read with section 151 of the Code was also filed praying for stay of dispossession of the plaintiff- petitioners. 3. Defendant-respondent filed written statement taking the stand that the plaintiff-petitioners have no locus standi nor have any cause of action to file the suit. It was further alleged that they have suppressed material facts from the Court. Defendant-respondent asserted that the disputed land measures 60 kanals 13 marlas and he claimed 1/5th share which was jointly owned and possessed by the defendant-respondent along with the father of the plaintiff-petitioners to the extent of 4/5th share. It was claimed that the defendant-respondent filed an application for partition and in that application the mode of partition was prepared on 19.12.1991 which attained finality as no appeal or revision was filed by the either of the parties. He also relied on an order where it was held by the Assistant Collector IInd Grade that the defendant-respondent was the joint owner in possession to the extent of 1/5th share. He also relied on an order where it was held by the Assistant Collector IInd Grade that the defendant-respondent was the joint owner in possession to the extent of 1/5th share. It was further claimed that the jurisdiction of the Civil Courts are expressly barred by the provisions of 158 of the Punjab Land Revenue Act, 1887 (for brevity, the Act). The trial Court after considering the rival contention of the parties declined the prayer for interim relief of the plaintiff-petitioners on the ground that they had not approached the court with clean hands and suppressed the material facts from the Court inasmuch as it was not disclosed that the partition in respect of the suit land has already been effected and the appeal filed by the father of the plaintiff- petitioners had already been dismissed by the Collector, Hisar. Further facts suppressed were that the execution petition filed by the defendant-respondent was pending in the court of Assistant Collector IInd Grade, Hansi and warrant of partition has already been issued. On appeal, the learned Additional District Judge, Hisar affirmed the view taken by the trial Court. 4. I have heard Shri N.S. Panwar, learned counsel for the plaintiff- petitioners and Shri Ashok Kumar Verma, Advocate for the defendant-respondent and have perused the record with their assistance. 5. The only argument raised by Shri Panwar is that the land comprised in Khasra No. 549 measuring 10 marlas is recorded as Gair Mumkin Bara in the jamabandi for the year 1994-95 and, therefore, unless it is shown that it was being used for agricultural purposes or subservient to agriculture, this piece of land could not be subjected to partition by the revenue authorities. For this proposition, the learned counsel has placed reliance on a judgment of this Court in the case of Bhagiratha v. Janak and others, 1987 PLJ 2. He has drawn by attention to the provisions of section 4(1) of the Punjab Tenancy Act, 1887 and argued that to bring this Bara in dispute within the meaning of land as defined in section 4(1) of the Act it is essential to aver and prove that Bara in dispute was not being used for agricultural purposes or for purposes subservient to agriculture. 6. 6. On the other hand, Shri Ashok Kumar Verma, learned counsel for the defendant-respondent has argued that the jurisdiction of the civil court under section 158 of the Act is barred and the appeal filed by the plaintiff- petitioners before the Collector has been dismissed. According to the learned counsel, at best it can be maintained in respect of land described in the revenue record as Gair Mumkin Bara. 7. Having heard learned counsel for the parties and I am of the considered opinion that this revision petition is devoid of merit and is, thus, liable to be dismissed because both the Courts below have exercised their discretion which does not suffer from any illegality or irregularity which may warrant interference of this Court except the one stated hereinafter. The land measuring 10 marlas described as Gair Mumkin Bara has not been shown as being used for agricultural purposes or purposes subservient to agriculture. In respect of this land, the revenue Courts would have no jurisdiction unless it is shown that it is being used for agricultural purposes or purposes subservient thereto. Therefore, in respect of this 10 marlas of land status quo is ordered to be maintained. However, in respect of rest of the land, the revision petition is liable to be dismissed. For the reasons recorded above, this revision petition fails subject to the condition that the parties must maintain status quo with regard to land measuring 10 marlas described in the jamabandi for the year 1994-95 as Gair Mumkin Bara. However, it is made clear that anything observed in this order shall not be taken as an expression of opinion on merit and the same shall not prejudice the final decision of the suit. Revision dismissed.