Point of Law: Orders passed in partition proceedings are to be adjudicated by Revenue Courts.

JUDGMENT :

Vivek Singh Thakur, J.

Appellant has approached this Court against judgment and decree dated 15.1.2020, passed in Civil Appeal No. 52-13/2017, titled as Krishan Dass and others Vs. Rama Nand and others by Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh, whereby judgment and decree dated 7.10.2017, passed in Civil Suit No. 121-1 of 2017/12, titled as Rama Nand Vs. Krishan Dass and others by Civil Judge Court No. 3, Ghumarwin, District Bilaspur, H.P. has been reversed and suit preferred by respondent No. 1 Rama Nand seeking permanent prohibitory injunction by restraining the defendants from dispossessing the plaintiff from his share from the suit land, has been dismissed.

2. Appellant Rama Nand is plaintiff, whereas respondents No. 1 to 3 and performa respondent No. 4 are defendants in the suit and they shall, herein after for convenience, be referred as per their status in the Civil Suit.

3. Plaintiff had preferred a suit for permanent prohibitory injunction against the defendants. Defendant No. 2 Ghan Shyam did not contest the suit and was proceeded against ex parte, whereas other defendants had contested the suit, who are respondents herein.

4. Civil Judge (Trial Court) decreed the suit of plaintiff by passing a decree for permanent prohibitory injunction by restraining the defendants from dispossessing the plaintiff from his share and possession in the suit land by demolishing the construction already made by obstructing the path, air, light to the existing house of the plaintiff or in any manner personally or through agents, servants and family members etc. till the suit land is not finally partitioned.

5. Appeal preferred by contesting defendants has been allowed by Additional District Judge by passing impugned judgment and decree.

6. Undisputedly suit land was in joint ownership and possession of parties and partition proceedings were concluded by the Assistant Collector 1st Grade, Jhandutta on 22.2.2011 and appeal filed by the plaintiff against order passed by Assistant Collector 1st Grade was dismissed by Collector Sub Division, Ghumarwin vide order dated 6.1.2012. Order dated 6.1.2012 has been placed on record Ex. D1. Thereafter, possession was delivered to the parties on the spot as per land allotted on the basis of partition and entry in this regard was recorded in the roznamcha dated 12.11.2014, maintained by Patwari, copy whereof has been placed on record as Ex. D2.

7. Revenue appeal preferred by plaintiff before Sub Divisional Collector was dismissed vide order dated 6.1.2012. The said order has been assailed by plaintiff, as stated in the plaint before Divisional Commissioner, Mandi. After that present suit has been filed on 18.4.2012 claiming that defendants are trying to dispossess the plaintiff from the land occupied by him in the joint land, whereas partition proceedings have not attained finality. Copy of roznamcha dated 12.11.2014 indicates that no stay order was granted by the Divisional Commissioner against the order dated 6.1.2012 (Ex. D1) passed by Sub Divisional Collector dismissing the appeal preferred by the plaintiff against the order dated 22.2.2011 passed by Assistant Collector 1st Grade, Jhandutta in partition proceedings between the parties and it appears that instead of approaching the higher Revenue Court for obtaining stay order, realizing that on merit there was no possibility of grant of stay by revenue authorities, plaintiff, instead of filing appropriate application/appeal/ revision seeking stay of order passed by Assistant Collector 1st Grade, Jhandutta and Sub Divisional Collector, has approached the Civil Suit seeking permanent prohibitory injunction against the defendants.

8. Prayer in the plaint reflects that plaintiff did not file suit for permanent prohibitory injunction till the completion of proceedings/litigations related to partition proceedings pending before the Revenue Courts, but for permanent prohibitory injunction forever. Claim of the plaintif