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1993 Supreme(P&H) 108
PUNJAB & HARYANA HIGH COURT
G.R.Majithia and A.S.Nehra JJ.
Fauja Singh
Versus
Pritam Singh And Anr.
Regular Second Appeal No. 721 of 1988,
Decided On : JANUARY 29, 1993
A civil court lacks jurisdiction to partition land that is part of an estate, and an order of partition passed by a revenue officer is valid unless it is shown that the land was being used as abadi land at the time of partition.
Headnote:
PARTITION - PUNJAB LAND REVENUE ACT, 1887 - SEC. 112, 158 - PUNJAB TENANCY ACT, 1887 - SEC. 4 - CIVIL COURT JURISDICTION - ABADI LAND - PARTITION - REVENUE OFFICER - CIVIL COURT - JURISDICTION - ABADI LAND - PARTITION - REVENUE OFFICER - CIVIL COURT - JURISDICTION.
Fact of the Case:
Plaintiff filed a suit for separate possession of 1 kanal of abadi land out of 4 kanals 10 Marias of land, alleging joint ownership and possession with defendants. Defendants contested the suit, claiming separate possession and alleging prior partition of the suit property.
Finding of the Court:
The court held that the land in dispute was part of an estate and could not be partitioned by a civil court under Section 158(2) of the Punjab Land Revenue Act, 1887. The court also held that the order of partition passed by the revenue officer was valid as there was no evidence to show that the land was being used as abadi land at the time of partition.
Issues: 1. Whether the plaintiff is a joint owner of the property in dispute? 2. If issue No. 1 is proved in the affirmative, whether the plaintiff is entitled to separate possession? 3. Whether the plaintiff is not in possession of any part of the property in dispute? 4. Whether the suit is properly valued for the purpose of court fee and jurisdiction? 5. Whether the plaintiff has no cause of action to file the present suit? 6. Whether the land has been partitioned already as alleged in the written statement? 7. If issue No. 6 is proved in affirmative whether the order of Collector is illegal as alleged in the replication?
Ratio Decidendi: 1. The definition of "land" under Section 4 of the Punjab Tenancy Act, 1887, excludes land occupied as the site of a building in a town or village and used for agricultural purposes. 2. Section 112 of the Punjab Land Revenue Act, 1887, restricts the partition of certain properties, including land occupied as the site of a town or village and assessed to land revenue, if such partition is likely to cause inconvenience or diminish the utility of the property. 3. Section 158(2) of the Punjab Land Revenue Act, 1887, bars civil courts from exercising jurisdiction over matters related to the partition of an estate, including any question connected with or arising out of partition proceedings. 4. The order of partition passed by the revenue officer was valid as there was no evidence to show that the land was being used as abadi land at the time of partition.
Final Decision: The appeal was dismissed, upholding the lower court's decision that the civil court lacked jurisdiction to partition the suit property and that the order of partition passed by the revenue officer was valid.
A.S.Nehra, J.
1. This appeal is directed against the judgment and decree dated 16.1.1988 passed by the District Judge, by which the appeal filed by the plaintiff-appellant was dismissed and the judgment and decree passed by the Additional Senior Sub Judge on 7.3.1986 dismissing the suit of the plaintiff, was upheld.
2. Plaintiff filed a suit against the defendants for, separate possession of 1 kanal of abadi land out of land measuring 4 kanals 10 Marias situated in the revenue estate of Village Nangal Bihalan, Hadbast No. 226 Khataunies No. 38.39,40 and 41 bearing Khasra Nos. 16R/5/4 min, 17R/1/12 min, 16R/5/4 min and 17R/J/1/2 min as entered in the jamabandi forthe year 1980 8) by partitioning the said land by metes and bounds. It was averred in the plaint that the plaintiff and defendants are the joint owners in joint possession of the land measuring 4 kanals 10 Marias; that most part of the suit land is under abadi and the remaining part is lying vacant and is not an agricultural land ; that the suit land is also not assessed to land revenue and plaintiff has got 20/90 share of the suit land, whereas defendant No. 1 has 4490th share and the share of defendant No. 2 is 26/90th ; that the plaintiff is in possession of the area which is much less than his share, whereas the defendants are in possession of the more area than their share and that the plaintiff is entitled to get his share in the suit land and therefore, he is entitled to get separate possession of his share of the suit land by partitioning by metes and bounds.
3. Defendant No. 1 in his written statement controverted the plaintiffs allegations and alleged that the plaintiff was not in possession of any part of the suit land, therefore, the suit of the plaintiff was not maintainable in the present form. Defendant No. I filed separate written statement. He also controverted the plaintiffs allegations and, inter alia, alleged that the suit property has already been partitioned.
4. On the pleading of the parties, following issues were framed :-
1. Whether the plaintiff is joint owner of the property in dispute. If so, to what share ? OPP.
2. If issue No. 1 is proved in the affirmative, whether the plaintiff is entitled to the separate possession ? OPP
3. Whether the plaintiff is not in possession of any part of the property in dispute ? If so, its effect ? OPD
4. Whether the suit is properly valued for the purpose of Courtjfee and jurisdiction ? OPP
5. Whether the plaintiff has no cause of action to file the present suit ? OPD
6. Whether the land has been partitioned already as alleged in the written statement ? OPD.
7. If issue No. 6 is proved in affirmative whether the order of Collector is illegal as alleged in the replication ? OPP.
8. Relief.
5. Issue No. 1, 2 and 7 were decided against the plaintiff Issues No. 3, 5 and 6 were decided in favour of the defendants Issue No. 4 was treated as preliminary issue and was decided earlier. As a result of the decision on issues No. 1, 2, 3, and 5 to 7, tile suit filed by the plaintiff was dismissed.
6. Learned counsel for the appellant has assailed the findings of the learned lower Courts on issues No. 6 and 7 and submitted that it has been admitted in the written statement filed by defendant No. 1 that there are houses on the land in dispute for the last 20 years, which means for the last 20 years the suit land is not being used as agricultural land, but the same is being used as abadi land and that being so, this land could not be partitioned by the Revenue Officers. He has further submitted that the order of partition passed by the Revenue Officer in respect of the suit land, copy of which is Exhibit D-ll is illegal In support of his arguments, learned counsel for the appellant has relied upon Khushal Singh v. Gurdip Singh, 1987 P. L. J. 369.
7. Correctness of the decision given by the learned Single Judge in Khushal Singhs case (supra) was doubted. Therefore, this appeal was admitted and referred to a larger B
