The jurisdiction of Civil Courts is fundamental and must be specifically addressed; failure to do so vitiates the judgments.

JUDGMENT :

Satyen Vaidya, J.

This Regular Second Appeal has been filed by the appellants against judgment and decree dated 05.12.2014 passed in Civil Appeal No. 0000060/2013 by learned District Judge, Kinnaur at Rampur Bushahar whereby judgment and decree dated 30.09.2013 passed by learned Civil Judge (Senior Division), Kinnaur at Reckong Peo in Civil Suit No.24-1 of 2006 was affirmed.

2. Respondent No.1 herein (hereinafter referred to as plaintiff) filed a suit ( Civil Suit No. 24-1 of 2006) against the appellants and respondents No. 2 to 4 herein (hereinafter referred to as the defendants) in respect of land comprised in Khewat Nos. 57 and 58, Khatauni Nos. 195 to 199, Khasra Nos. 53, 54, 55, 88, 89, 92, 94, 452, 486, 487, 488, 489, 490, 491, 492, 498, 524 total kitas 18, measuring 1-40-96 hectares, situated in Mauza Molgi, Pargana 15/20, Tehsil Rampur Bushahar, District Shimla (for short, “Suit Land”). It was alleged that the plaintiffs and defendants were joint owners of the suit land and a decree to that effect was prayed. Further, it was also prayed that the order passed by the Assistant Collector 1st Grade, Rampur in partition case No.9/86 dated 17.01.1990 be declared illegal, wrong, void and without jurisdiction. In nutshell, the case of the plaintiffs was that the suit land was still joint and the claim of the defendants on the basis of an order of partition passed by Assistant Collector 1st Grade on 17.01.1990 was wrong, illegal and not binding on their rights. As per plaintiff, in the partition proceedings held by the Assistant Collector 1st Grade, when the file was sent to the field agency by the Assistant Collector 1st Grade, Rampur, the plaintiff was never summoned and in this manner the plaintiff had been condemned unheard. In this manner violation of mandatory provisions of law was alleged.

3. The suit was contested by the appellants herein. In their written statement objections qua cause of action, locus standi, estoppel, limitation, valuation and the suit being barred under Section 171 of the H.P. Land Revenue Act, were raised. It was alleged that the partition had been finalized in pursuance to the orders dated 17.01.1990 by the Assistant Collector 1st Grade. The instrument of partition stood prepared and the partition had been implemented on spot also.

4. On the basis of pleadings of the parties, learned trial Court framed the following issues:

1. Whether the plaintiffs are joint owner in possession of the suit land as alleged? OPP

2. Whether order of AC 1st Grade dated 17.1.1990 and subsequent mutation dated 11.3.1997 is to be declared null and void as alleged? OPP

3. Whether the plaintiffs are entitled to the relief of injunction? OPP

4. Whether the suit of plaintiffs is not maintainable in the present form? OPD

5. Whether the plaintiffs are estopped from filing the present suit by their own act, conduct and omission? OPD

6. Whether the suit of plaintiffs is barred by limitation? OPD

7. Whether the suit of plaintiffs is not properly valued for the purpose of court fee and jurisdiction? OPD

8. Whether the plaintiffs have no locus-standi to file the present suit, as alleged? OPD

9. Whether the plaintiffs have no cause of action to file the present suit? OPD

10. Relief.

Issues No. 1 to 3 were decided in affirmative. Remaining issues were decided in negative and the suit of the plaintiffs was decreed. The plaintiffs and defendants were declared as joint owners in possession of the suit land. The order passed by the Assistant Collector 1st Grade, Rampur dated 17.01.1990 and mutation No. 33 dated 11.3.1997, attested on its basis, were declared illegal, wrong, null and void.

5. In first appeal filed by the defendant No.1, the judgment and decree dated 30.09.2013 passed by learned trial Court has been affirmed. Hence this appeal.

6. This appeal has been admitted vide order dated 20.03.2015 on the following substantial questions of law:

“1. Whether both the learned Courts below erred in appreciating the provisions of law applicable,