Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2414 (HP)

Label Chand alias Albel Chand v. Sita Devi

2016-11-16

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the judgment and decree dated 6.12.2004 passed by learned District Judge, Solan in Civil Appeal No. 39-S/13 of 2003 whereby learned Lower Appellate Court has dismissed the appeal and affirmed the judgment and decree dated 8.1.2003 passed by learned Sub Judge Ist Class, Kasauli at Solan district Solan in Civil Suit No. 100/1 of 1998. 2. The subject matter of dispute in the present lis is the land entered in Khewat Khatauni No. 43/53, Khasra Nos. 295/19, 34, 41, 297/48 and 81, Kitas 5, measuring 9 bighas 11 biswas situate in village Nandal, Pargana Keontan-I Tehsil and District Solan. The appellant (hereinafter referred to as the ‘plaintiff’) claims the same to be in his possession and that of his sister Sita Devi, the respondent (hereinafter referred to as the ‘defendant’) in equal shares. On an application filed by the defendant, learned Assistant Collector Ist Grade, Solan has ordered the partition of the suit land and ignored the objections the plaintiff raised against the partition proceedings. His claim is that he was in cultivating physical possession of the suit land since time immemorial and the defendant after her marriage in village Kyar never remained in possession of the suit land. The objections so raised were rejected by the Assistant Collector Ist Grade and while allowing the application for partition had approved the mode of partition. Consequently, the Khataunies and Sanad Taksim were prepared taking into consideration the nature and possession of the suit land. According to the plaintiff though he had objected to the mode of partition and Sanad Taksim whereby the best piece of suit land was allotted to the defendant, however, the objections so raised by him were erroneously rejected. Therefore, by filing the suit he had sought the decree of declaration that the order of partition dated 7.5.1997 is null and void and also for permanent prohibitory injunction restraining the defendant from causing any interference in the suit land. 2. The defendant on entering appearance had contested the suit. In preliminary, she has raised the objections qua maintainability thereof and that the plaintiff is estopped due to his own act, conduct and acquiescences to file the suit and also that in view of the provision contained under Section 171(XVII) of the H.P. Land Revenue Act the civil court has no jurisdiction to try and entertain the suit. In preliminary, she has raised the objections qua maintainability thereof and that the plaintiff is estopped due to his own act, conduct and acquiescences to file the suit and also that in view of the provision contained under Section 171(XVII) of the H.P. Land Revenue Act the civil court has no jurisdiction to try and entertain the suit. On merits, while denying the plaintiff’s case being incorrect it has been asserted that the suit land was rightly ordered to be partitioned and the parties allotted the land taking into consideration its kind and possession. 3. On such pleadings of the parties, following issues were framed: 1. Whether the order dated 7.5.1997 qua Sanad Taksim is illegal null and void as alleged passed by Ld. A.C. Ist Grade Solan in case No. 14/9 of 1991/92 titled as Sita Devi Vs. Lavel Chand? ……OPP 2. In case issue No. 1 is decided in affirmative, whether the plaintiff is entitled to the relief of injunction? ….OPP 3. Whether the suit is not maintainable in the present form? ….OPD 4. Whether the plaintiff is estopped from filing the present suit by his own acts, conduct and acquiescence? ….OPD 5. Whether the suit is bad due to the provisions of section 171(XVII) of H.P. Land Revenue Act? ….OPD 6. Relief. 4. Learned trial Court after holding full trial has taken issues No. 1, 3 and 5 for consideration all together and while issue No. 1 has been answered against the plaintiff whereas issues No. 3 and 5 in favour of the defendant has dismissed the suit being not maintainable as well as barred under the provisions of Section 171 (XVII) of the H.P. Land Revenue Act. Consequently, the plaintiff was not held entitled to the relief of permanent prohibitory injunction and as such issue No. 2 was answered against him. 5. Learned Lower Appellate Court in appeal has affirmed the judgment and decree passed by the trial Court and dismissed the appeal. 6. The judgment and decree passed by learned Lower Appellate Court has been assailed in the present appeal on the grounds, inter-alia, that in view of Sanad Taksim was illegal, the order of partition was not executable. The suit as such was not barred under sub Section (1) of Section 171 (XVII) and XVIII) of the H.P. Land Revenue Act. 6. The judgment and decree passed by learned Lower Appellate Court has been assailed in the present appeal on the grounds, inter-alia, that in view of Sanad Taksim was illegal, the order of partition was not executable. The suit as such was not barred under sub Section (1) of Section 171 (XVII) and XVIII) of the H.P. Land Revenue Act. The partition proceedings being not carried out in accordance with law, it is urged that the declaration as sought should have been granted. In any event the plaint should have been ordered to be returned for presentation in appropriate Court instead of dismissal of the suit or rejection of the plaint. 7. The appeal has been admitted on the following substantial question of law: Whether in view of the findings that the Civil Court had no jurisdiction to try the suit, ordering rejection of the plaint is sustainable? 8. Mr. Kapil Dev Sood, learned Senior Advocate assisted by Mr. Mukul Sood, Advocate has argued that in the given facts and circumstances at the most the plaint should have been ordered to be returned to the plaintiff for presentation before the competent Court having jurisdiction to adjudicate the dispute between the parties. This is the short question which has been sought to be adjudicated in the preset appeal by Mr. Kapil Dev Sood, learned Senior Advocate. In support of the submissions so made Mr. Kapil Dev Sood has placed reliance on the judgments of the Apex Court in R.S.D.V. Finance Co. Pvt. Ltd., v. Shree Vallabh Glass Works Ltd., AIR 1993 Supreme Court 2094, Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR 1965 Supreme Court 338 and that of the High Court of Allahabad in Governing Council of Kayastha Pathshala, Prayag and others v. Ram Chandra Srivastava and others, AIR 1992 Allahabad 158. The law laid down in these judgments amply demonstrate that where the Court arrives at a conclusion that it has no jurisdiction to try a suit the appropriate order to be passed should not be dismissal of the suit but qua the return of the plaint for presentation before the appropriate forum. Admittedly, the jurisdiction of the civil Court to try and entertain a suit of this nature is barred under Sub Section (1) of Section 171 clause (XVII) and XVIII) of H.P. Land Revenue Act. Admittedly, the jurisdiction of the civil Court to try and entertain a suit of this nature is barred under Sub Section (1) of Section 171 clause (XVII) and XVIII) of H.P. Land Revenue Act. The remedy available against an order of partition is to file an appeal/revision before the revenue authorities i.e. Collector. 9. Divisional Commissioner and even Financial Commissioner also in hierarchy. Being so, there is substance in the submissions made on behalf of the respondent-defendant that an order to return the plaint in this case may not serve any purpose. According to Mr. G.D. Verma, learned Senior Advocate, an order allowing the plaintiff to withdraw the suit with liberty reserved to seek remedy against the order of partition available under the provisions of the HP Land Revenue Act would serve the ends of justice. Mr. Kapil Dev Sood, learned arguing counsel on behalf of the appellant-plaintiff is also not averse to the submissions so made on behalf of the defendant. Therefore, the judgment and decree under challenge in this appeal is ordered to be quashed and set aside and the plaintiff is permitted to withdraw the suit with liberty reserved to resort to the remedy available to him to challenge the order of partition before appropriate forum having jurisdiction to entertain and decide the controversy between the parties in accordance with law. 10. The present appeal is disposed of accordingly with no order so as to costs. Pending applications, if any, also stands disposed of.