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2014 Supreme(HP) 2041
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
PIAR SINGH RANA, J.
SHYAM SINGH. - Appellant
Vs.
PREM SINGH - Respondent
RSA No. 438 of 2002
Decided on : 30-06-2014
Advocate Appeared:
For the Appellant :Jyotsna Rewal Dua, Advocate
For the Respondent:Ramakant Sharma and P.C. Sharma, Advocate
The main legal point established in the judgment is that the jurisdiction of the Civil Court is barred under the HP Land Revenue Act regarding partition proceedings, and the remedy for the appellant was to challenge the partition proceedings under the Act.
Headnote:
Civil Court Jurisdiction - HP Land Revenue Act - [FACT OF THE CASE] [FINDING OF THE COURT] [ISSUES] [RATIO DECIDENDI] [FINAL DECISION]
Fact of the Case:
The plaintiffs filed a suit challenging a partition order and instrument of partition, claiming that it was illegal and not binding upon them. The defendants contended that the suit was not maintainable before the Civil Court and that the partition proceedings were concluded under the HP Land Revenue Act.
Finding of the Court:
The trial court and the first appellate court held that the Civil Court had no jurisdiction to entertain the suit against partition proceedings under the HP Land Revenue Act, and rejected the plaint under Order 7 Rule 11 of the Code of Civil Procedure. The High Court affirmed the decision, stating that the remedy for the appellant was to challenge the partition proceedings under the HP Land Revenue Act and to file execution proceedings regarding the consent judgment and decree passed in a previous civil suit.
Issues: The main issue was whether the Civil Court had jurisdiction to entertain the suit against partition proceedings under the HP Land Revenue Act.
Ratio Decidendi: The court held that the jurisdiction of the Civil Court was barred under the HP Land Revenue Act, and the remedy for the appellant was to challenge the partition proceedings under the Act.
Final Decision: The High Court affirmed the decisions of the lower courts, dismissing the appeal and leaving the parties to bear their own costs.
JUDGMENT :
PIAR SINGH RANA, J.
1. Judgment: Present appeal filed against the judgment and decree passed by learned District Judge Sirmour District at Nahan HP in Civil Appeal No. 52-CA/13 of 2001 titled Shyam Singh Vs. Prem Singh and others.
2. Brief facts of the case as pleaded are that Shyam Singh and others plaintiffs filed suit for declaration that partition order dated 4th December 1997 and the instrument of partition made in the partition case No. 60 of 1993 titled Prem Singh Vs. Shyam Singh prepared by Assistant Collector Ist Grade Paonta Sahib HP is illegal and not binding upon the plaintiffs being contrary to civil decree passed by the Civil Court in Civil Suit No. 16/1 of 1987 titled Gajey Singh Vs. Prem Singh which was decided on 23rd December, 1987. It is pleaded that as per compromise decree passed by Civil Court suit property situated in khasra No. 33, 38 and 146 measuring 42-8 bighas and khasra No. 34 and 163 measuring 17-12 bigha total immovable land measuring 60 bighas situated in Mauza Danda Tehsil Paonta Sahib District Sirmour HP was to be divided in equal shares between Gajey Singh, Prem Singh and Shyam Singh. It is further pleaded that it was decided in Civil Suit No. 16/1 of 1987 that 17-12 bighas of land situated in khasra No. 34 and 163 will be clubbed together with the land measuring 42-8 bighas comprised in Khasra No. 33, 38 and 144 and thereafter the land will be partitioned amongst three brothers i.e. Gajey Singh, Prem Singh and Shyam Singh in equal shares after maintaining their respective possession with regard to Abadi of the parties. It is further pleaded that revenue officials while effecting partition did not implement the decree passed by Civil Court on 23rd December 1987 in Civil Suit No. 16/1 of 1987 and prayer for grant of decree as mentioned in relief clause of the plaint sought.
3. Per contra written statement filed on behalf of defendant No. 1 Sh Prem Singh pleaded therein that suit is not legally maintainable. It is further pleaded that Civil Court has no jurisdiction to entertain and try the suit qua partition matters decided under HP Land Revenue Act. It is pleaded that remedy lies under HP Land Revenue Act. It is further pleaded that Civil Suit is clearly barred before the Civil Court qua partition proceedings effected under HP Land Revenue Act. It is further pleaded that aggrieved party did not file appeal against the mode of partition. It is further pleaded that no question of title was raised before the revenue officials in partition proceedings as required under HP Land Revenue Act. It is further pleaded that present suit is bad for non-joinder of necessary party. It is further pleaded that present suit has been filed in collusion with plaintiff No. 1 and plaintiffs No. 2 to 9. It is admitted that vide compromise decree dated 23rd December 1987 titled Gajey Singh Vs. Prem Singh and others the parties were declared owners in possession in equal shares maintaining their respective possession with regard to Abadi. It is further pleaded that after passing of the decree on dated 23rd December 1987 in Civil Suit No. 16/1 of 1987 Sh Shyam Singh plaintiff No. 1 filed another Civil Suit No. 59/1 of 1993 titled Shyam Singh Vs. Gajey Singh for declaration that compromise executed between the parties in Civil Suit No. 16/1 of 1987 titled Gajey Singh Vs. Shyam Singh be declared void ab-initio and that subsequent change in revenue entries on the basis of said decree be rectified. It is pleaded that Civil Suit No. 59/1 of 1993 was dismissed. It is further pleaded that thereafter appeal was filed before Additional District Judge Sirmour at Nahan i.e. Civil Appeal No. 28-N/13 of 1995 titled Shyam Singh Vs. Gajey Singh and another and the same was also dismissed on 18.11.1997. It is further pleaded that thereafter Regular Second Appeal No. 19 of 1998 was filed before the Hon'ble High Court titled Shyam Singh Vs. Dhanvir Singh and others and the same was also dismissed by Hon'ble High Court of HP on d
