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2004 DIGILAW 248 (HP)

Brij Lal v. Todar

2004-09-29

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. This second appeal arises out of the judgment and decree of the learned District Judge, Mandi, dated 18th September, 2001. 2. It appears, respondents No.1 and 3, hereinafter referred to as the "plaintiffs", brought a suit for partition of the property, subject matter of dispute. The case of the plaintiffs was that out of 34 shares in the suit property plaintiff No.1 has ten shares, other two plaintiffs, Dharam Chand and Inder Singh, have four shares, defendant Brij Lal has fifteen shares including five shares relinquished by Smt. Astami in his favour and Het Ram and Khem Chand have five shares. 3. The suit was resisted by defendant No.1 Brij Lal, on the grounds that the Civil Court has no jurisdiction, a private partition had taken place between the parties and since then parties are in separate possession. The entries in the revenue record showing the parties to be joint owners in possession are wrong and illegal. He also disputed the shares as recorded in the revenue record. Another objection taken was that (sic-the suit) being for partial partition is not maintainable. Learned trial Judge on appreciation of the evidence on record found that the suit land in not "agricultural land" as there are houses and other buildings located on this land and therefore, the Civil Courts have jurisdiction. So far the question of suit being for partial partition is concerned, it was found that the plaintiffs had included the entire property in Muhal Kotli and the fact that they have some other joint land in different Muhal will be of no consequence. So far the shares of the parties are concerned, the learned trial court found that the shares of the parties, as reflected in the revenue record, are correct. The plea of the defendant that the property in question has been privately partitioned between the parties was rejected. 4. Dis-satisfied, defendant Brij Lal carried an appeal before the learned District Judge, which to was dismissed. Learned District Judge affirmed the findings of the trial court on appreciation of evidence. He concluded that the Civil Court has jurisdiction to try the suit and that suit as alleged is not for partial partition. The plea of the defendants that there have been private partitions between the parties too did not find favour with the first appellate Court. Learned District Judge affirmed the findings of the trial court on appreciation of evidence. He concluded that the Civil Court has jurisdiction to try the suit and that suit as alleged is not for partial partition. The plea of the defendants that there have been private partitions between the parties too did not find favour with the first appellate Court. Still aggrieved, the defendant Brij Lal is in this second appeal under section 100 of the Code of Civil Procedure. 5. This appeal was admitted on 25th November, 2002 on the following substantial questions of law: 1. Whether, in the facts and circumstances of this case, Civil Court had no jurisdiction to try the suit? 2. Whether the suit was not maintainable being for partial partition? Question No.1: 6. It is admitted position between the parties that houses, cow sheds and other immovable property is located on the land are (Sic) in dispute. It is well settled that if the land is not being used exclusively for agricultural purpose the Civil Court has Jurisdiction to try the suit for possession by partition. This apart defendant Brij Lal, also questioned the title of the Plaintiffs on the ground that he has thirty shares in the suit property and not fifteen shares as recorded in the revenue record. 7. Section 171 (2)(vii) of the H.P. Land Revenue Act itself stipulates that if question as to the title to any property, of which partition is claimed, is raised then the jurisdiction of Civil Courts will not be ousted to partition the rest land. 8. Questions relating to the disputed claims of parties for title to an immovable property can only be decided by the Competent Civil Courts. (See:-State of Rajstahana v. Harphool Singh (dead) through his L.Rs. (2000) 5 SCC 652 ). 9. In the present case it cannot be said that the Civil Court has no jurisdiction to try the suit. Question, is, accordingly, answered. Question No.2: 10. This question does, (sic) in the fact situation is misplaced. It is admitted position that suit as laid is not for partial partition. Both the trial Court and the first appellate Court concluded that the entire property in village Muhal Kotli is subject of the suit. Learned counsel for the appellant could not point out any joint property which was not included in the suit. Question is accordingly answered. 11. It is admitted position that suit as laid is not for partial partition. Both the trial Court and the first appellate Court concluded that the entire property in village Muhal Kotli is subject of the suit. Learned counsel for the appellant could not point out any joint property which was not included in the suit. Question is accordingly answered. 11. There is no merit in the appeal. Dismissed. No costs.