JUDGMENT

Mr. Amit Rawal, J. (Oral):- CM-10726-C-2017

For the reasons stated in the application, which is supported by an affidavit, delay of 138 days in re-filing the appeal is condoned.

CM stands disposed of.

MAIN CASE

2. The short point involved in the present regular second appeal is whether the Civil Court would have the jurisdiction to pass a preliminary decree, in respect of land, reflected in the revenue record as abadi deh or the Revenue Court, in view of the provisions of Section 158 of the Punjab Land Revenue Act, 1887 (in short ‘the 1887 Act’).

3. Mr. Khurana, learned counsel appearing on behalf of the appellant-defendant submitted that the jointness amongst the co-sharers is not in dispute as the jamabandi reflected to be gair mumkin. It will not take away the character of the property as agricultural land, as, for abadi deh, the field numbers are allocated and maintained in the field book. In support of his contentions, relies upon the decision dated 19.08.2011, of this Court rendered in CWP No.2619 of 2010 titled as “Raghbir Singh and others V/s State of Haryana and others”.

4. I am afraid the aforementioned argument is not sustainable as the appellant-defendant has not discharged the onus by placing on record the khasra girdawairs, if it was agricultural land. It is, over a period of time, agricultural lands, become the abadi deh and gair mumkin, owing to increase of lal dora or the municipal limits. No such evidence has been placed on record.

5. The Division Bench of this Court in “Surjit Singh V/s Financial Commissioner Appeals-II, Punjab and others”, [2011(1) Law Herald (P&H) (DB) 573 : 2011(1) Land.L.R. 462 (P&H) (DB)] : 2012 (5) RCR (Civil) 683, by relying upon the provisions of Sections 111 and 158 (2) of the 1887 Act, dealt with the similar controversy and held that where plots carved out and houses constructed on agricultural land, the remedy would be of a Civil Court and not of a partition. For the sake of brevity, para Nos.8 to 10 of the judgment read as under:-

‘’8. After considering the submissions made by the counsel for the appellant, we do not find any force in the same. It is uncontroverted fact that after filing the partition application, the appellant himself has carved out plots on the land in their possession for residential purposes on which construction has been raised by the purchasers. This factum of large scale construction in and around the land in dispute and construction of roads and houses on the plots carved out has been confirmed by the Local Commissioner. Undisputedly, the subsequent development had taken place before the final order of partition was passed. Initially, at the time of confirmation of the mode of partition, the respondent raised objections in this regard.

9. It is true that the agricultural land, which is part of an estate, which has been defined under the Land Revenue Act, cannot be partitioned by the Civil Court in view of Section 158 (2) of the said Act. But, when the agricultural land before partition loses its nature as such by the acts of the parties, particularly, who is seeking partition, then such land cannot be partitioned by the revenue Court. During the partition before the Revenue Officer, a co-sharer can raise an objection that the land, which has been shown in the revenue record as agricultural and assessed to land revenue, should not be partitioned as the same due to the acts of the other co-sharer, who is seeking partition, loses its nature as an agricultural land. Exactly this thing has happened in the present case and by taking into consideration the subsequent development and the acts of the appellant himself, the revenue Court refused to partition the land with liberty to the appellant to seek the remedy of partition before the Civil Court. In Auja Singh’s case (supra), cited by the learned counsel for the appellant, some observations have been made by the Division Bench of this Court which do not support the case of the appellant, rather those o