Attar Singh and Others vs Rajbir Singh and Others

L.N. Mittal, J.—Plaintiffs Attar Singh etc., having been non-suited by both the courts below, have filed this second appeal. Plaintiffs/appellants alleged that they are joint owners in possession of half share of 161 kanals 07 marlas land. They also sought permanent injunction restraining the defendants from raising construction on any specific portion of the said land and for demolishing the construction, if any raised, during pendency of the suit.

The plaintiffs claimed to be owners of half share of the aforesaid land on the basis of decree dated 19.11.1987 suffered in their favour by their father. It was alleged that partition orders dated 25.10.2000 and 30.11.2000 of the aforesaid joint land passed by Assistant Collector First Grade, Beri are illegal and null and void being not as per shares of the plaintiffs.

Contesting defendants controverted the averments of the plaintiffs and pleaded that the joint land has been rightly partitioned by the Revenue Court and no extra share has been given to the defendants. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Jhajjar, vide judgment and decree dated 01.09.2009, dismissed the plaintiffs'' suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Jhajjar, vide judgment and decree dated 21.04.2012. Feeling aggrieved, plaintiffs have filed this second appeal.

I have heard counsel for the appellants and perused the case file.

Counsel for the appellants contended that plaintiffs/appellants were declared owners in possession of half share of the aforesaid land vide Civil Court decree dated 19.11.1987, but in partition proceedings, they have been given lesser share in the joint land. It has also been pointed out that partition orders of the Revenue Court have been passed ex-parte. It was also submitted that first appeal has been dismissed by the lower appellate court on technical ground that only judgment of the trial court and not decree of the trial court was challenged by way of first appeal.

I have carefully considered the aforesaid contentions, but the same are completely meritless.

Admittedly, plaintiffs were party to the partition proceedings in the Revenue Court. Consequently, plaintiffs could raise the question of their share or title before the Revenue Court. The same cannot be raised in the instant suit after the partition proceedings had attained finality. Jurisdiction of Civil Court to challenge the partition orders passed by Revenue Court is barred u/s 158 of the Punjab Land Revenue Act, 1887. Ex-parte partition orders passed by Revenue Court are as good and as legal and valid as the orders passed on contest, unless set aside. Consequently, plaintiffs have been rightly non-suited by the courts below because partition proceedings have attained finality and cannot be challenged in the Civil Court.

As regards dismissal of first appeal on technical ground that decree of the trial court was not challenged, this contention is also misconceived because the first appeal has also been dismissed on merits by the lower appellate court and not only on the aforesaid technical ground.

For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below to non-suit the plaintiffs is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. On the contrary, the said finding is the only reasonable finding that can be arrived at on appreciation of evidence on record. Consequently, the said finding does not warrant any interference nor gives rise to any question of law, much less substantial question of law, for adjudication in this second appeal. On the contrary, even on the basis of admitted factual position, plaintiffs cannot succeed. The appeal is completely meritless and is, therefore, dismissed in limine.