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2010 DIGILAW 1212 (HP)

Bal Krishan v. Surinder Kumar

2010-11-11

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J This petition is directed against the order dated 7.10.2009 passed by the learned Civil Judge (Junior Division), Anni, District Kullu whereby he dismissed the preliminary submission raised by the petitioners (hereinafter referred to as the ‘defendants’) that the Civil Court had no jurisdiction to decide the matter. 2. To understand the controversy between the parties, it would be relevant to give certain facts. Bhag Chand, predecessor-in-interest of the present petitioners and Sh.Magan Dass, predecessor-in-interest of the respondents were co-sharers of the said property. According to Bhag Chand, he had half share in the land whereas Magan Dass claimed that Bhag Chand had only 1/4th share in the land. To establish his right, Bhag Chand had to file a suit in the Court of the Sub Judge 1st Class, Rampur. The suit was dismissed but in the appeal, the learned Additional District Judge, Shimla vide judgment and decree dated 17.6.1984 came to the conclusion that Bhag Chand had half share in the land. Against the said judgment and decree, Magan Dass filed RSA No.142 of 1984 in this Court which was dismissed on 27.9.1984. Thereafter, Bhag Chand filed an Execution Petition and got symbolic possession of the land. However, since he had been held to be a co-owner, actual possession was not given to him. 3. Finally, Bhag chand filed an application for partition of the land before the Assistant Collector 1st Grade on 6.11.1997. All the co-sharers were served in such partition proceedings and thereafter, mode of partition which is Annexure P/3 was prepared on 30.5.2001. Thereafter, instrument of partition as per shares was prepared which has been attached as Annexure P/4 with this petition. The petitioners who are the legal heirs of Bhag Chand were held entitled to 1/2 share of land measuring 46-08 bighas and the respondents were given similar amount of land measuring 4609 bighas. The actual partition showed the Khasra numbers allotted to each party in the partition. Thereafter, the instrument of partition, Annexure P/5 was prepared on stamp paper. Thereafter, physical possession of the land was handed over to the parties by the revenue staff vide Annexure P/7 on 18.4.2006. 3. The plaintiff filed an appeal before the Collector, Sub Division, Anni on 6.2.2006 alleging that some revenue staff had made interpolations in the Khataunis prepared at the time of the partition. Thereafter, physical possession of the land was handed over to the parties by the revenue staff vide Annexure P/7 on 18.4.2006. 3. The plaintiff filed an appeal before the Collector, Sub Division, Anni on 6.2.2006 alleging that some revenue staff had made interpolations in the Khataunis prepared at the time of the partition. This appeal was dismissed by the Collector on 28.8.2007. After filing of the appeal but before decision thereof, the plaintiffs filed a suit in which the following prayer was made:-“It is, therefore, prayed that decree for declaration declaring the impugned order passed by the A.C. 1st Grade, Nirmand dated 28.4.2005 and the subsequent proceedings passed therein such as preparation of Sanat Takseem as illegal, void and not binding on the plaintiffs with consequential relief of injunction restraining the defendants from interfering in the possession of the land comprised in Khasra No.1489/1 and 1640 be kindly passed with cost for the ends of justice.” 4. The defendants raised a preliminary objection that the Civil Court had no jurisdiction to decide such a suit and this suit was expressly barred in terms of Section 171 (2) (xvii) and (xviii) of the H.P Land Revenue Act which read as follows:- “171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act-(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular- (2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely- (i) to (xvi) ….. ….. ….. ….. ….. … (xvii) 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; (xviii) any question as to the allotment of land on the partition of an estate holding or tenancy, or as to 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.” 5. The learned Trial Court vide its impugned order has rejected this contention only on the ground that tampering was done in the papers, i.e., Khataunis and since the order is being challenged on the basis of misrepresentation, therefore, Section 171 of the Land Revenue Act is not applicable. This order is under challenge before me. 6. I have heard Sh.H.K.Bhardwaj, learned counsel for the petitioners and Ms.Ritta Goswami, learned counsel for the respondents No.1 and 2. 7. A bare perusal of Section 171 (2) (xvii) (xviii) quoted hereinabove shows that the Civil Court has no jurisdiction whatsoever to interfere in partition proceedings relating to agricultural land. When the jurisdiction of the Civil Court is expressly barred and the revenue officer is empowered to take cognizance of dispute, the Civil Court cannot exercise jurisdiction. The learned Trial Court has failed to take note of the provisions of Section 171 aforesaid and has rejected the contention by a very cryptic and non-speaking order. 8. Ms.Ritta Goswami, learned Counsel for the respondents No.1 and 2 submitted that the jurisdiction of the Civil Court was not barred and she relied upon Section 46 of the Act which reads as follows:- “46.Suit for declaratory decree by persons aggrieved by an entry in a record.- If any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in [a periodical] record, he may institute a suit for a declaration of his right under [Chapter VI of the specific Relief Act, 1963].” 9. It is contended by Ms.Ritta Goswami that the suit would lie in view of Section 46 of the Act. 10. It is contended by Ms.Ritta Goswami that the suit would lie in view of Section 46 of the Act. 10. At the outset, I may state that no prayer has been made in the suit that there is any wrong entry in the record of rights which requires to be corrected. Therefore, Section 46 of the Act is not at all applicable. The main case of the plaintiffs appears to be that there was interpolation in the Khataunis and, therefore, the mode of partition was illegal. This contention cannot be accepted. Khataunis are not record of rights. After preparation of Khataunis, the actual document of partition, Annexure P/4 was prepared which depicts the land allotted to each party. This document was prepared on 28.4.2005 and in this document, Khasra No.1489/1 and 1640 which are the bone of contention have clearly been allotted to the petitioners herein. This document was the basis of the instrument of partition prepared in the year 2005. The respondents were well aware of the same but filed the appeal only in the year 2006 much beyond the period of limitation. They also thereafter filed a suit more than one year after the instrument of partition had been prepared. 11. The dispute whether there was any tampering in the Khataunis or not fell squarely within the purview of the revenue officers since Khataunies are not records of rights. Therefore, it was the Revenue Courts alone who had jurisdiction to decide the matter. The appeal filed by the respondents No.1 and 2 was dismissed by the Collector and they chose not to challenge the same in further proceedings. The suit filed by them is, therefore, barred in view of the provisions of Section 171 (2) (xviii). 12. In view of the above discussion, the petition is allowed. The order of the learned Trial Court is set aside and it is held that the Civil Suit No.26-1 of 2007 filed by the respondents No.1 and 2 is not maintainable and the Civil Court has no jurisdiction to entertain or decide the same. Resultantly, the suit filed by the plaintiffs is rejected. No order as to costs.