Civil Courts cannot adjudicate matters concerning partition as per H.P. Land Revenue Act, Section 171, which restricts jurisdiction in partition disputes, asserting that remedy lies within revenue authorities.

JUDGMENT :

Rakesh Kainthla, J.

1. The present petition is directed against the order dated 30.11 2022 passed by learned Additional District Judge (CBI)Shimla, District Shimla, (Learned First Appellate Court) vide which appeal filed by the appellant (defendant No.1 before the learned Trial Court) was partly allowed and the order dated 14.07.2021 passed by the learned Civil Judge, Junior Division, Court No.4, Shimla, (Learned Trial Court) was modified. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that the plaintiffs filed a Civil Suit before the learned Trial Court for seeking a declaration that the they are the joint owners in exclusive possession of the land comprised in Khewat No. 57, Khatauni No.109-113, Kite-37, measuring 02-53-08 hectare, situated at Mohal Kwalag, Tehsil & District Shimla H.P.,(hereinafter referred to as the ‘suit land’). The documents of the private partition and mutation No. 215, dated 29.01.2021 are illegal, null and void and inoperative against the rights of the plaintiffs. The plaintiffs have acquired a title by way of ouster against defendants No. 2 to 4 and transfer of the suit land by registered Sale Deed does not create any right in favour of defendant No.1. A decree of permanent prohibitory injunction for restraining the defendants from dispossessing the plaintiffs from the suit land, changing its nature or creating any charge or lien, on the same and a mandatory injunction directing the defendants to restore the suit land to its original condition in case they succeed in changing its nature during the pendency of the suit was also sought. It was pleaded that the plaintiffs and proforma defendants are joint owners in separate exclusive possession of the suit land. The suit land was earlier jointly owned by Shaunkia and Chimru. They had entered into an oral family arrangement for better enjoyment and use of the property and were residing separately. Defendant No.2 left the village after the death of Chimru and started residing in her parental home. Defendants No.2 to 4 were never allowed to occupy their share in the suit land. The plaintiffs are in continuous, peaceful and uninterrupted possession of the suit land. They have become owners by way of adverse possession. Defendants No. 2 to 4 managed to get the suit land transferred in favour of defendant No.1 by way of a Sale Deed. The Sale Deed does not operate qua the rights of the plaintiffs. Defendant No.1 filed an application under Section 123 of the H.P. Land Revenue Act for the partition of the land. The mode of the partition was ordered to be prepared on 13.12.2020, behind the back of the plaintiffs. The proper opportunity of hearing was not provided to the plaintiffs by learned AC IInd Grade. The mode of partition was framed on 17.12.2020 without determination of the question of title. Learned AC IInd Grade was not competent to proceed with the mode of partition without the determination of the question of the title. Learned AC IInd Grade directed the Field Agency to carry out the fie