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2006 DIGILAW 47 (JK)

Mela Ram v. Shamsher Singh

2006-03-22

J.P.SINGH

body2006
1. Mela Ram and seven others have filed this civil second appeal arraying Shamsher Singh and twenty two others as party respondents against decree and judgment dated 17.09.2004 of learned District Judge, Udhampur, whereby he had upset order dated 07.07.2003 of Tehsildar Settlement, Udhampur. 2. Facts leading to the filing of this civil second appeal may be summarized, thus:- 3. Mela Ram and others filed an application on 08.05.1990 seeking partition of land comprised in Khewat No.20/20 of village Kalsote, Tehsil Udhampur, claiming that they were co-sharers in Khewat No.20/20 and as per the entries in the cordelier revenue records, they have 1/4th share in the land. Hari Saran, Jagdev Singh, Badri Singh and about sixteen other persons were impleaded as party respondents in this application. 4. It appears from the records that after setting the respondents ex-parte, the Tehsildar Settlement directed the Patwari concerned to produce Naksha No.3, proposing partition of the land between the parties. The proceedings in the case, however, continued as the Patwari concerned had not complied with the direction issued by the Tehsildar Settlement and in the meanwhile objections were filed by Sh. Durga Dass Kotwal, Advocate, on behalf of the respondents, objecting to the partition. It further comes out that Hari Saran died during the pendency of the proceedings but his legal representatives were not brought on record by the applicants. The proceedings before the Tehsildar appear to have continued in a haphazard manner and ultimately these proceedings resulted in passing of order dated 07.07.2003, allowing partition proceedings sought for in an application dated 08.05.1990 of Mela Ram and others. Objection raised by the respondents that the property stood already partitioned more than sixty years ago, does not appear to have been decided by the Tehsildar Settlement. 5. Aggrieved by the order of Tehsildar Settlement, Udhampur, Shamsher Singh, Anchal Singh, Fateh Singh, Pritam Singh, Roma Devi and Meena Devi filed an appeal before District Judge, Udhampur, who vide his judgment dated 17.09.2004 upset the order of the Tehsildar Settlement, Udhampur, and directed disposal of the partition application afresh after following the provisions contained in Section 111-A of the Land Revenue Act. 6. Sh. B. B. Kotwal, learned counsel for respondents, raised a preliminary objection that the civil second appeal is not maintainable because the order impugned in the appeal is not a decree and even otherwise not appealable under any provisions of law. 7. 6. Sh. B. B. Kotwal, learned counsel for respondents, raised a preliminary objection that the civil second appeal is not maintainable because the order impugned in the appeal is not a decree and even otherwise not appealable under any provisions of law. 7. Sh. O. P. Thakur, learned counsel for appellants on the other hand, submits that order of remand impugned in the civil second appeal, is an order under Order XLI Rule 23/23-A of the Code of Civil Procedure, hence appealable under Order XLIII of the Code of Civil Procedure. 8. I have considered the submissions of learned counsel for the parties on the preliminary objection raised by Sh. Kotwal. 9. Any order made under Rule 23 or 23-A of Order XLI remanding a case, where an would lie from the decree of the Appellate Court, is appealable under Order XLIII of the Code of Civil Procedure. 10. The order impugned in the appeal satisfies both the conditions prescribed under Order XLIII Rule 1(u) of the Code of Civil Procedure. If the Appellate Court had passed a decree in the appeal , it would be appealable before this Court under Section 100 of the Code of Civil Procedure read with Section 112 of the Land Revenue Act. 11. I, thus, do not find any force in the preliminary objection of Sh.B.B.Kotwal. This objection is, accordingly , overruled and appeal held maintainable. 12. On merits of the controversy, Sh. O. P. Thakur, submits that the learned District Judge has erred in directing the Tehsildar Settlement to proceed in accordance with Section 111-A of the Land Revenue Act, in that, Section 111-A had no application to the facts of the present case, which was allowed by the Tehsildar Settlement under Sections 105/110 of the Land Revenue Act. 13. Sh. B. B. Kotwal, on the other hand, submits that the respondents had raised a specific objection before the learned Tehsildar Settlement that the property stood partitioned sixty years ago and the respondents were in possession of their respective shares since then and had perfected their title by adverse possession. This plea, according to Sh. Kotwal, could not be dismissed summarily and the Tehsildar Settlement was required to proceed only under Section 111-A and not in the manner as suggested by learned counsel for the appellants. 14. This plea, according to Sh. Kotwal, could not be dismissed summarily and the Tehsildar Settlement was required to proceed only under Section 111-A and not in the manner as suggested by learned counsel for the appellants. 14. In order to appreciate the submission of learned counsel for the parties, I will refer to three Sections of the Land Revenue Act referred by learned counsel, which are reproduced hereunder:- "105. Application for partition. Any joint holder of land or any joint tenant of a tenancy in which a right of occupancy or protected tenancy subsists, or any mortgagee with possession of the share of such holder or tenant, may apply to a Revenue officer for partition of his share in the land or tenancy, as the case may be, if-- (a) at the date of the application the share is recorded under Chapter IV as belonging to him, or (b) his right to the share has been established by a decree which is, still subsisting at that date; or (c) a written acknowledgement of that right has been executed by all persons interested in the admission or denial thereof. 110. Procedure on objection that partition has already been made privately. If it is alleged by any of the co-sharers that the land or the tenancy has already been divided by a partition made privately, the Revenue officer, notwithstanding anything to the contrary in section 32 of this Act, shall proceed as though the objection was an application under section 118 of this Act, and if he finds that private partition has in fact been made, may pass orders affirming it, and refusing the application made under section 105 of this Act. 111-A. Objection raising question of title. (1) If any objection is made by a recorded co-sharer involving a question of proprietary title to which has not been already determined by a Court of competent jurisdiction, the Revenue officer may either- (a) decline to grant the application until the question in dispute has been determined by a competent Court, or (b) require any party to the case to institute within three months a suit in the Civil Court for the determination of such question, or (c) proceed to enquire into the merits of the objection. (2) When the proceedings have been postponed under clause (b), if such party fails to comply with the requisition, the Revenue officer shall decide the question against him. If he institutes the suit the Revenue officer shall deal with the case in accordance with the decision of the Civil Court. (3) If the Revenue officer decides to enquire into the merits of the objections, he shall follow the procedure laid down in the Code of Civil Procedure for the trial of original suits." 15. Learned counsel were not at variance regarding raising of objection by respondents before Tehsildar Settlement to the effect that the property stood partitioned more than sixty years ago and that they were in possession of their respective shares and had perfected their title by adverse possession. 16. This position is established from a bare reading of the application of the respondents. Section 110 of the Land Revenue Act gives jurisdiction to the Revenue Officer to refuse application under Section 105 of the Act, if he finds that private partition has in fact been made. This Section does not give any other power to the Revenue Officer. If the Officer does not proceed under Section 110 in dismissing the application under Section 105, he has no other option except to deal with the objection by having resort to the three options provided under Section 111-A(a)(b) and (c) of the Land Revenue Act. 17. Learned Tehsildar has neither resorted to any of the options provided under Section 111-A of the Land Revenue Act nor dealt with the plea of the respondents that the property stood partitioned sixty years ago. He has dealt with only one objection of the respondents that plea of adverse possession was not available to them. 18. Learned District Judge, Udhampur, has, thus, taken a correct view of the law in directing re-trial of the application for partition moved by the respondents. 19. I do not find any error of jurisdiction or illegality in the order of the learned District Judge, Udhampur. This appeal is, thus, without any merit and is, accordingly, dismissed.