Civil courts lack jurisdiction over partition proceedings unless fundamental judicial principles are violated; mere erroneous orders do not constitute jurisdictional errors.

JUDGMENT :

(Bipin Chander Negi, J.)

The instant petition has been preferred against the order dated 30.10.2023 passed by learned Civil Judge Junior Division, Court No.8, Shimla in Civil Suit No. 105 of 2019, whereby an application filed under Order 7 Rule 11 by the present petitioner has been dismissed.

2. Respondents No.1 and 2 in the case at hand were the plaintiffs before the Trial Court. They had filed a suit seeking declaration to the effect that the partition proceedings as carried out in Case No.38 IX/XII passed by the Assistant Collector, First Grade, Rural Shimla dated 17.10.2014 decided on 28.10.2017 titled as Virender Singh vs. Madan Singh and others and the instruments of partition dated 27.09.2017 drawn in pursuance to the aforesaid partition proceedings are illegal, wrong, void ab initio and do not affect the joint status of the parties. A further declaration was sought with respect to the mutation attested in pursuance to the aforesaid partition orders. A decree for permanent prohibitory injunction was sought by respondents No. 1 and 2 against the present petitioner and proforma respondents restraining them from dispossessing respondents No.1 and 2, alienating the suit land or encumbering the same by creating third party rights.

3. The present petitioner who was defendant No.2 before the trial Court filed an application under Order 7 Rule 11 CPC. His contention was that in terms of Sub Section XVII and XVIII of Section 171 of the H.P. Land Revenue Act, 1954, the Civil Court had no jurisdiction to deal with a matter which pertained to partition proceedings. As per the petitioner, partition proceedings filed in the suit lay within the exclusive domain of the revenue courts in terms of the aforesaid provisions.

4. Per contra, the sole contention urged on behalf of the respondents No. 1 and 3 i.e. plaintiffs before the trial Court is that the statutory tribunal has not acted in conformity with fundamental principles of judicial proceedings. In this respect it is contended that the partition proceedings have not been conducted by the Assistant Collector, 1^st Grade in accordance with the law/guidelines as prescribed under the H.P. Land Records Manual and the H.P. Land Revenue Act. It is further alleged that the proceedings have been conducted against dead persons without bringing on record their legal heirs. Other than the aforesaid, it is contended that some of the respondents had not been served in accordance with law during the partition proceedings. Last but not the least it is alleged that though served parties to the proceedings had not been given a right to file objections.

5. Heard counsel for the parties. Perused the pleadings.

6. It is well settled that the jurisdiction of the Civil Court to determine questions arising out of partition proceedings is barred. A civil Court is not competent to entertain any suit in connection to partition proceedings or any questions arising out of partition proceedings (See judgment dated 21.06.2024 passed in CMPMO No. 62 of 2022 titled Sachin Dogar vs. Rattan Dass and others). Even otherwise, in terms of law laid down in (1991) 1 SLC 223 titled as Chunnia Devi vs. Jindu Ram an order made by the competent authority under the H.P. Land Revenue Act, 1954 is open to challenge before a Civil Court to the extent that it relates to matters falling within the ambit of Section 37(3) and Section 46 of the H.P Land Revenue Act. The same is not the case at hand.

7. It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (Refer Dhulabhai v. State of M.P., (1968) 3 SCR 662 : AIR1