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2010 DIGILAW 1180 (HP)

Kaushlya Devi v. Kamla Devi

2010-10-21

SURJIT SINGH

body2010
JUDGMENT : Surjit Singh, Judge This Regular Second Appeal was admitted on the following substantial questions of law: “1. Whether in a Miscellaneous Appeal arising out of the order passed by the learned Trial Court on miscellaneous application, for grant of adinterim injunction, could the District Judge direct the Trial Court to appoint a Local Commissioner for partitioning of the agricultural land? Was not such order without jurisdiction, illegal, null and void? 2. Whether the judgments and decrees passed by both the courts below are illegal, erroneous, perverse and further without jurisdiction and are vitiated on account of grave procedural illegality and irregularity.” 2. Facts that need to be noticed for the disposal of the appeal are like this. Respondent deceased Ragha Singh, hereinafter called plaintiff and now represented by his legal representatives, i.e. respondents No.1 to 5, filed a suit for permanent prohibitory injunction, restraining the appellants from raising construction on any portion of land, bearing Khasra No.557, measuring 403 square metres and also for mandatory injunction, directing them (appellantsdefendants) to remove the construction, which they may happen to raise during the pendency of the suit. It was alleged that land bearing Khasra No.557, hereinafter called suit land, was joint of the plaintiff, present appellants, who were impleaded as defendants No.1 and 2 as also Gulab singh and Prabh Dayal, who were impleaded as proforma defendants. 3. An application, under Order 39 Rules 1 and 2 CPC had also been filed for temporary injunction. That application was allowed by the trial Court. Appeal was filed against that order before the District Judge, who disposed of the appeal, vide order dated 22.1.1998. When that appeal was being disposed of, a request was made by the counsel, representing both the parties that some Revenue Officer may be appointed as Local Commissioner to carry out partition of the suit land, by metes and bounds, so that the dispute between the parties was resolved once for all. Learned District Judge allowed that request and directed the trial Court to appoint a Local Commissioner, as per aforesaid wishes of the parties. 4. Learned Trial Court, vide order dated 12.3.1998 appointed Naib Tehsildar, Baldwara, as Local Commissioner. Said Local Commissioner submitted report Ext. CA alongwith the statements of the parties and the Tatima. 5. Total area of the land was 403 square metres. There were four cosharers, each of whom had 1/4th share. 4. Learned Trial Court, vide order dated 12.3.1998 appointed Naib Tehsildar, Baldwara, as Local Commissioner. Said Local Commissioner submitted report Ext. CA alongwith the statements of the parties and the Tatima. 5. Total area of the land was 403 square metres. There were four cosharers, each of whom had 1/4th share. Appellant Rup singh had one share. Other appellant Smt. Kaushlya Devi had no share. She was impleaded as defendant, because she being wife of appellant Rup Singh had allegedly been threatening to raise construction. 6. Trial Court decided the suit in accordance with the report of the Local Commissioner. It may be stated that objections were raised by the present appellants, with regard to the report of the Local Commissioner. It was alleged that appellant Kaushlya Devi wife of Rup Singh was an illiterate lady and that it was only she, who was present at the time of the visit of Local Commissioner to the spot, in the capacity of attorney of appellant Rup Singh, and on account of illiteracy could not understand the proposal of partition made by the Local Commissioner. Trial Court rejected the objections and passed the decree, in terms of the report of Local Commissioner. 7. Appeal filed by the appellants before the District Judge stands disposed of, vide judgment and decree dated 28.11.2000, which have been challenged by means of the present appeal. 8. I have heard learned counsel for the parties and gone through the record. 9. Parties themselves wanted the District Judge, when he was disposing of the appeal against the order of temporary injunction, that some Local Commissioner may be appointed to carry out partition, by metes and bounds, on the spot and they agreed that the partition so carried out would be binding on them. It was because of these wishes of the parties that the trial Court appointed a Local Commissioner, who went to the spot and in accordance with the position prevalent on the spot as also the statements made by the parties, carried out the partition and submitted the report. Each of the four cosharers was allotted a separate area according to his share. Appellant Rup Singh, who is recorded as coowner to the extent of 1/4th share in the Jamabandi, was allotted 101 square metres area, which is slightly more than his recorded share, because as per recorded share, his entitlement was 100.75 square metres. Each of the four cosharers was allotted a separate area according to his share. Appellant Rup Singh, who is recorded as coowner to the extent of 1/4th share in the Jamabandi, was allotted 101 square metres area, which is slightly more than his recorded share, because as per recorded share, his entitlement was 100.75 square metres. On this area he has his old house. Also this area includes the site on which he proposed to raise new construction. 10. Submission has been made on behalf of the appellants that the suit land being assessed to revenue, its partition could not have been ordered by the Civil Court. Submission has been noticed only to be rejected. Partition had not been carried out by the orders of the Court, but in accordance with the wishes of the parties, which they expressed before the District Judge at the time of disposal of the appeal against the order of temporary injunction. Therefore, partition carried out by the Local Commissioner is in the nature of a partition carried out by the parties without the intervention of Revenue Officer. Such a partition is permissible under Chapter IX of the H.P. Land Revenue Act, though it is subject to affirmation by the Revenue Officer, as per requirement of Section 135, Chapter IX of the said Act. 11. In view of the above stated position, both the substantial questions of law, on which the appeal was admitted, are answered against the appellants. Consequently, appeal is dismissed. However, it is clarified that the partition, which has been carried out in accordance with the report Ext. CA of the Local Commissioner, requires affirmation by a Revenue Officer of the rank of Assistant Collector, 1st Grade, per Section 135 read with section 138 of the H.P. Land Revenue Act.