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2016 DIGILAW 156 (HP)

Nikku alias Nikka Ram v. Bhola Singh

2016-03-01

RAJIV SHARMA

body2016
JUDGMENT : Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 23.8.2003 rendered by the Additional District Judge, Una in Civil Appeal No. 24/2000/99. 2. “Key facts” necessary for the adjudication of this appeal are that the appellant-plaintiff (hereinafter referred to as the “plaintiff” for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as the “defendants” for convenience sake) praying for permanent prohibitory injunction thereby to restrain the defendants from causing interference or forcibly ousting him from the suit land and further to restrain the defendants from cutting the trees or digging or raising construction over the land measuring 0-01-24 hectares bearing Khewat No. 129 min, Khatauni No. 436 min, Khasra Nos. 1509, 1523/1 as entered in the Khatauni Bandobast 1986-87 situated in village Nari, Tehsil Amb, District Una. Plaintiff claimed that he had been coming as owner in possession of the suit land in which his abadi situated. The suit land has been carved out of Khasra No. 640 and as per partition he was allotted the suit land. He has stated that earlier Khasra number was 2754/640/6, out of which the suit land was allotted in his favour and the mutation of which also stood attested in his favour. However, the defendants have been threatening to cause interference in the suit land. 3. The suit was contested by defendants. According to the defendants, old Khasra number of the suit property was 2755/640 as per copy of Jamabandi for the year 1979-80. The abadi was raised by Sh. Chatru, father of defendant Nos. 1 and 2 and of plaintiff about 40 years ago. Chatru died intestate about 18 years ago and his property was succeeded by his widow defendant No.3 and four sons including defendants, plaintiff and one Kuldip Singh alongwith one sister. Thus, it was joint property between the parties. Plaintiff got the land partitioned in connivance with revenue officials at the back of defendants without giving any opportunity of being heard. Defendants were living in the abadi comprised in the suit land from the very beginning and have no alternative to live. The house was old and it collapsed in the year 1988. It was rebuilt by defendant Nos. 1 and 2. 4. Plaintiff filed replication. Issues were framed on 26.2.1992 and thereafter issue No.1 was modified on 23.2.1996. Defendants were living in the abadi comprised in the suit land from the very beginning and have no alternative to live. The house was old and it collapsed in the year 1988. It was rebuilt by defendant Nos. 1 and 2. 4. Plaintiff filed replication. Issues were framed on 26.2.1992 and thereafter issue No.1 was modified on 23.2.1996. Learned Sub Judge 1st Class, Court No.2 decreed the suit on 29.5.1998. Defendant Bhola Singh preferred an appeal before the Additional District Judge, Una. He allowed the same on 23.8.2003. Hence, the present appeal. It was admitted on 22.9.2003 on the following substantial question of law: “Whether the revenue Court is only competent forum for partition of the land which is assessed to land revenue irrespective of the fact that over it some super structure of the co-owner is existing?” 5. Mr. N. K. Thakur, learned Senior Advocate, on the basis of the substantial question of law framed, has vehemently argued that the revenue court was competent to partition the land since it was assessable to land revenue. 6. Mr. R.K. Gautam, learned senior Advocate for the respondents has supported the judgments and decrees passed by the first appellate court. 7. I have heard the learned counsel for the parties and have gone through the records carefully. 9. Ex.D-1 and Ex.P-5 are copies of Jamabandi for the year 1979-80 of Village Nari, Tehsil Amb, District Una wherein Khasra No.2755/640 measuring 1-19 has been recorded as Gair Mumkin abadi. Plaintiff has based his suit on the basis of copy of Bandobast Missal Hakiat for the year 1986-87, i.e. Ex.PA and Ex.P-6. The suit land recorded in the name of plaintiff according to Ex.PA and Ex.P-6 was carved out of Khasra No.2754/640. The land recorded was as Gair Mumkin abadi. Plaintiff has appeared as PW-1. In his cross-examination, he has admitted that the suit land is Gair Mumkin abadi and its partition was affected by Tehsildar. Towards the end of his cross-examination, he has again admitted that the suit land continued as Gair Mumkin abadi. It is duly proved that the suit land was recorded as abadi-deh since 1979-80. It could not be partitioned by Tehsildar/Asstt. Collector 1st Grade. The partition order Ex.P-2 passed by the Tehsildar is required to be ignored as nonest. Towards the end of his cross-examination, he has again admitted that the suit land continued as Gair Mumkin abadi. It is duly proved that the suit land was recorded as abadi-deh since 1979-80. It could not be partitioned by Tehsildar/Asstt. Collector 1st Grade. The partition order Ex.P-2 passed by the Tehsildar is required to be ignored as nonest. Learned first appellate court has come to a right conclusion on the basis of revenue record as well as statement of plaintiff Nikka Ram that the suit land was abadi-deh. The land bearing Khasra No. 2755/640 measuring 1-19 recorded as Gair Mumkin abadi recorded in Jamabandi Ex.D-1 for the year 1979-80 has rightly been declared by the first appellate court deemed to be unpartitioned and in joint ownership and possession of the co-owners and the entries to the contrary were null and void. The substantial question of law is answered accordingly. 27. No other point was raised at the time of arguments. 28. According, In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.