The court emphasized the importance of evidence in establishing a family partition and upheld the validity of the Assistant Collector's partition order.

Kuldip Singh, Judge.

This petition is directed against judgement dated 5.6.2012 passed by learned District Judge, Kinnaur Civil Division, at Rampur Bushahr in Civil Misc. Application No. 1 of 2012 affirming the order dated 14.3.2012 passed by learned Civil Judge (Junior Division) Rampur Bushahr in case No. 62-1 of 2011 in CMP No. 48-6 of 2012.

2. The facts in brief are that petitioner has filed a suit for declaration and injunction against the respondents and others that he and his two brothers had inherited the landed property from their father Azeem Ulla, who constituted Hindu Joint Family. In April 1969 the petitioner and his two brothers entered into a family settlement and in such family settlement land comprised in specific khasra numbers had been allotted to each brother according to their convenience. After the settlement, the area so allotted in family settlement had been coming in their possession since then. The petitioner has developed the share, which came to him in family settlement and planted an apple orchard. The land comprised in khasra Nos. 31, 35, 41, 42, 44, 45, 46, 47, 48, 49, 50 and 55, kitas 12, measuring 01-20-51 hectares as per jamabandi for the year 2003-04 has been developed by the petitioner since the year 1969. The petitioner is exclusively enjoying this land which came to him in family settlement.

3. Biju son of Paras Ram had sold his half share to respondent No. 3 vide sale deed No. 208/2007. The respondent No. 3 filed an application for partition of the land before Assistant Collector Ist Grade, Kumarsain (for short, Assistant Collector). The petitioner in partition case raised specific plea that land has already been partitioned in the year 1969, there is question of title, therefore, land again cannot be partitioned. In any case, respondent No. 3 could claim an area out of land comprised in khasra Nos. 14, 27 and 58 measuring 00-98-54 hectares, which is recorded in possession of Biju after the settlement.

4. The revenue officer failed to decide the question of title either by converting into a civil court or by referring the parties to the civil court. The revenue officer has committed serious illegality. The mode of partition prepared by Assistant Collector in case No. 10/10 dated 23.3.2011 is illegal and not binding on the petitioner. The respondents No. 1 to 3 are threatening to interfere over the property in possession of the petitioner. The petitioner prayed for decree of injunction against respondents No. 1 to 3 regarding land comprised in khasra Nos. 31, 35, 41, 42, 44, 45, 46, 47, 48, 49, 50 and 55 as per jamabandi for the year 2003-04, Mouza Kehari, which is in possession of petitioner. The petitioner further prayed declaration that he may be declared exclusive owner of the aforesaid land which came to him in family partition effected in the year 1969. The order dated 23.3.2011 passed by Assistant Collector may be declared null and void.

5. The suit was contested by respondents No. 1 and 2. They took preliminary objections of jurisdiction of the civil court to try the suit, under section 171 of H.P. Land Revenue Act. The petitioner has been allotted his share in the partition proceedings. The order passed by Assistant Collector has attained finality. The petitioner is estopped from filing the suit. On merits, the respondents No. 1 and 2 denied any family partition took place in the year 1969.

6. The respondent No. 3 filed separate written statement and contested the suit. He has pleaded that entire holding owned and possessed by the petitioner and his two brothers Paras Ram and Ganga Ram was joint and each one of them was having 1/3rd share. The respondent No. 3 has stated that he has purchased half share of respondent No. 1 vide sale deed No. 208/2007. Thereafter he filed an application for partition of the land. He has denied any family partition in the year 1969. The Assistant Collector has allowed the partition application of respondent No. 3 and turned down the plea of q