A party who has exhausted his departmental remedies cannot challenge revenue authorities' partition orders in a civil court.

Swatanter Kumar, J.

1. This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Sirsa, dated 2.4.1997 dismissing the appeal preferred by the appellant-plaintiff.

2. During the course of hearing, the learned counsel appearing for the parties produced copies of relevant records. With the consent of the learned counsel for the parties, appeal was heard on merit.

3. The facts as emerge from the record are that the plaintiff-appellant herein had filed a suit for declaration to the effect that he is joint owner with the defendants as well as proforma defendants in the land measuring 459 Kanals 8 Marias situated in village Chadiwal as recorded in the Jamabandi for the year 1985-86. It is alleged that partition had taken place between the parties which was recorded vide orders dated 5.10.1993 and 2.3.1994. It was averred that the orders of partition dated 5.10.1993 and 2.3.1994 passed by the Assistant Collector, Ist Grade, Sirsa and by the Collector in appeal, respectively, are illegal and liable to be set aside as no instrument of partition had ever been prepared and actually taken place between the parties. It was further averred that defendant Havita Shree purchased the land measuring 45 kanals 19 marlas being l/10th share of the total land and sale-deed was executed on 10.8.1990 and mutation recorded thereupon. The said purchaser continued to be joint owner and partition as recorded was against statutory provisions of Sections 117 to 122 of the Punjab Land Revenue Act because it was made in a hasty manner. Until instrument of partition is prepared, partition cannot be effected. The said defendant is not entitled to the benefit of the orders and exclusive possession thereof. One, of the pleas taken in the plaint was that the State of Karyana was necessary party to the proceedings before the Collector and the land measuring 54 Manals 4 Marias was declared surplus in the hand of the co-sharers. This land was declared surplus in the hands of big land owners which was again incorrect. On these grounds, the orders of partition were challenged.

4. The suit was contested by defendant No. 11 who raised preliminary objections that the suit in the present form was not maintainable and the plaintiff has no right to challenge the partition. It was further pleaded that the suit is barred by the principles of res-judicata because a revision is already pending in the Court of Commissioner, Hissar. It was averred that instrument of partition was prepared on 19.11.1993 and as such the plaintiff has no cause of action. The defendant claimed to be entitled to possession of l/10th share as owner as the orders were in accordance with law, passed within the four corners of jurisdiction available to such Authorities and in the face of instrument aforestated prayer for dismissal of the suit was made. On the pleadings of the parties, the learned trial Court framed the following issues:-

(1) Whether the plaintiff is co-owner of the suit land as alleged? OPP.

(2) Whether the order dated 5.10.1993 passed by the Assisiant Collector, Ist Grade, Sirsa is wrong, illegal and is liable to be set aside as alleged? OPP.

(3) Whether the suit is not maintainable in the present form? OPD.

(4) Whether the plaintiff has no locus standi to file the present suit? OPD.

(5) Relief.

5. After having afforded opportunity to the parties to lead evidence, oral as well as documentary, the learned trial Court decided all the issues against the plaintiff and in favour of the defendants and dismissed the suit vide judgment and decree dated 20.11.1995. The plaintiff-appellant unsuccessfully assailed the judgment and decree of the trial Court in the first appeal before the learned Addl. District Judge, Sirsa, as already noticed. This gives rise to the filing of the present regular second appeal.

6. Learned counsel appearing for the appellant has basically raised two contentions for consideration of the Court. One is