Dugla (Deceased) Through Lrs & Others vs Chaman Lal (Deceased) Through Lrs

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 03.08.2002 passed by learned District Judge, Mandi, H.P. (learned Appellate Court) vide which the judgment and decree dated 14.12.2000 passed by learned Sub-Judge, First Class, Sarkaghat, District Mandi (learned Trial Court) were set aside. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that the plaintiff is the owner in possession of the suit land described in para- 1 of the plaint by virtue of a sale. A consequential relief of permanent prohibitory injunction and an alternative relief of possession were also sought. It was asserted that the predecessor-in-interest of the defendant made a sale in the plaintiff's favour and put the plaintiff in possession of the suit land on 18th Jeth, 2013. Defendant filed an application for partition. The plaintiff enquired from Patwari Halqa and found that the revenue entries in the record of right were incorrect. The plaintiff asked the defendant to correct the wrong entry, but in vain. Hence, the plaintiff filed the present suit to seek the relief mentioned above.

The defendants opposed the suit by filing a written statement taking preliminary objections regarding lack of maintainability and cause of action, the suit being bad for nonjoinder and misjoinder of the parties, the suit being barred by limitation, and the suit land having been partitioned by the competent authority. The plaintiff's claim was denied on the merits. It was specifically denied that the defendants' predecessor had sold the suit land to the plaintiff. It was asserted that the suit land was recorded in the joint ownership and possession of the plaintiff, replying defendant, proforma defendant and other co-sharers. Defendant filed a partition application on 08.01.1986, and the defendant's share was separated. The plaintiff knew of the partition proceedings, but he chose not to participate. The plaintiff filed a false suit without any basis. Hence, it was prayed that the present suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The following issues were framed by the learned Trial Court on 27.10.1999:

Whether the suit land was sold by the defendant in favour of the plaintiff on 18th Jeth, 2013, through a valid sale and the plaintiff was duly put in possession of the suit land? OPP.

If the aforesaid issue is proved, whether the plaintiff owner in possession of the suit land? OPP.

If the aforesaid issue is proved, whether the revenue entry showing the defendants as owners in possession is wrong and is not binding upon the rights of the plaintiff? OPP

Whether the suit is not maintainable? OPD

Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

Whether the suit is time-barred? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Relief.

The plaintiff died during the pendency of the suit, and his legal representatives were brought on record.

The parties were called upon to produce the evidence, and the plaintiff's legal representatives examined Chaman Lal (PW1), Sardaru (PW2), Bila Ram (PW3), Changu Ram (PW4), Sant Ram (PW5), and Chela Ram (PW6). The defendant examined himself (DW1), Ashwani Kumar (DW2), Gian Chand (DW3), Gian Chand, Patwari (DW4), and Daleep Singh (DW5).

Learned Trial Court held that the original plaintiff was a retired Revenue Officer. He was aware of the fact that any acquisition of the right had to be reported to the Patwari. He had not reported the sale to the Patwari for nearly 42 years. The suit land was partitioned by the competent authority. The possession was delivered to the owners after the partition. The plaintiff was aware of the wrong revenue entry in the year 1986, but he had not filed the suit immediately after coming to know of the revenue entries. The plaintiff was duly served and did not appear before the Revenue Court to contest the partition proceedings. Hence, the learned Trial Court answered issue No.6 in the affirmative, the rest of the issues in the negative and dismissed the plaintiff's suit.

Aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal, which was decided by the learned Additional District Judge, Mandi, H.P. (learned Appellate Court). Learned Appellate Court held that the service upon the original plaintiff was not valid because the Process Server had mentioned in his report that the plaintiff had been informed about the date of the hearing. The copy of the partition application did not accompany the summons, and the service was not valid. The plaintiff had proved the sale deed by producing a document that was more than 30 years old and carried a presumption under Section 90 of the Indian Evidence Act. The land described in the document tallied with the suit land. Learned Trial Court erred in dismissing the suit. Hence, the appeal filed by the plaintiff was accepted, and the suit was decreed.

Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendant has filed the present appeal, which was admitted on the following substantial questions of law on 23.09.2002:

Whether the jurisdiction of the civil Court is barred under Section 173 of the HP Land Revenue Act?

Whether the suit for declaration filed after three years from the date of acquiring the constructive knowledge of the impugned entry, can be maintainable and the present suit barred by limitation as the same has been filed in the year 1997, though the constructive knowledge acquired in the year 1986?

Whether the present plaintiffs/respondents can seek declaration on the basis of a defective document of title, which is unstamped and unregistered?

I have heard Mr N.K. Thakur, learned Senior Advocate, assisted by Mr Divya Raj Singh, learned counsel for the appellants and Mr Neeraj Gupta, learned Senior Advocate, assisted by Mr Ajeet Pal Singh, learned counsel for respondents No.1 (a) to 1(d), 2 to 6, 8 and 9.

Mr N.K. Thakur, learned counsel for the appellants, submitted that the plaintiff was duly served in partition proceedings. He did not appear before the revenue authorities, and the land was partitioned by metes and bounds. The possession was delivered to the plaintiff. The civil court does not have the jurisdiction to hear and entertain the suit, because of the bar contained in Section 171 of the H.P. Land Revenue Act. The plaintiff was aware of the revenue entries in the year 1988, and he had filed the suit more than three years after gaining such knowledge. The learned Trial Court had rightly held that the suit was barred by limitation. The document of sale propounded by the plaintiff was unregistered and unstamped. The land mentioned in it could not be connected to the suit land, and the learned Appellate Court erred in holding that the suit land was sold by means of the document produced by the plaintiff. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside.

Mr Neeraj Gupta, learned Senior Counsel for the respondent, submitted that the plaintiff was not properly served. The Process Server had only made a report on the summons that the plaintiff was informed of the partition proceedings. The signatures of the plaintiff were not obtained regarding the service. Hence, the learned Appellate Court had rightly held that the service could not be held to be proper. The limitation would not start running unless the plaintiff knew of the partition proceedings. The revenue authorities had proceeded to partition the land without associating the plaintiff, which is a violation of the principle of natural justice. The document of sale was corroborated by an entry made in the revenue record, and the learned Trial Court erred in ignoring the document of sale. Hence, he prayed that the present appeal be dismissed. He relied upon the judgments in Dev Raj vs. Mansha Ram, Latest HLJ 2002 (HP) 1222 and Prakash Chand and others vs. Hans Raj and another 1994 (1) Sim. L.C. 114 in support of his submission.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

Substantial Question of Law No.1:

Section 171(2)(xvii) & (xviii) of H.P. Land Revenue Act reads as under: -

"171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. - Except as otherwise provided by this Act -

***

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely -

***

(xvii) any claim for the partition of an estate, holding, or tenancy, or any question connected with or arising out of proceedings for partition not being a question as to title in any of the property of which partition is sought;

(xviii) any question as to the allotment of land on the partition of an estate holding or tenancy, or as to the distribution of land subject by established custom to periodical redistribution, or as to the distribution of land revenue on the partition of an estate or holding or a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy."

It is apparent from the bare perusal of the Section that a Civil Court cannot exercise jurisdiction regarding any claim for the partition of an estate or any question connected with or arising out of the proceedings for partition, not being a question as to title. Therefore, the jurisdiction of the civil Court to determine the questions arising out of the partition proceedings is barred, and the civil Court is not competent to entertain any suit connected to the partition proceedings or any question arising out of the partition proceedings. This provision was considered by this Court in many cases.

In Gopi Chand Vs. Sonam Dass 1998(1) Shimla Law Cases 488, the question was whether the civil Court had jurisdiction regarding the delivery of possession of the land allotted in the partition. After analysing the proceedings of Section 171(2)(xvii), it was held by this Court that the civil Court does not have jurisdiction relating to the partition where such questions can be disposed of by the revenue authorities. It was observed:

"17. The matter with regard to the delivery of possession of the land in dispute consequent upon partition ordered by the Revenue Officer falls within the exclusive jurisdiction of such Revenue Officer within the ambit of Section 134 of the Revenue Act. Therefore, if the plaintiffs have failed to obtain possession under Section 134 of the Revenue Act, they cannot approach the Civil Court for such relief of possession. The Civil Court has no jurisdiction in view of the provisions contained in Section 171(1) and Section 171(2)(xvii) of the Revenue Act."

In Bal Krishan Vs. Surinder Kumar 2011(1) Shimla Law Cases 312, a civil suit was filed regarding the tampering of the Khataunis. It was held that the dispute regarding the tampering of Khatauni was within the exclusive jurisdiction of revenue authorities, and the civil court had no jurisdiction to entertain the suit relating to the same. The plea that such a suit is maintainable under Section 45 of the H.P. Land Revenue Act. Section 46 of the H.P. Land Revenue Act was also negated, and it was held: -

"11. The dispute whether there was any tampering in the Khataunis or not fell squarely within the purview of the revenue officers since the Khataunis have no records of rights. Therefore, it was the Revenue Courts alone who had jurisdiction to decide the matter. The appeal filed by respondents No. 1 and 2 was dismissed by the Collector, and they chose not to challenge the same in further proceedings. The suit filed by them is, therefore, barred in view of the provisions of Section 171 (2) (xviii)."

In Khalil Vs. Meena @ Yamin 2016 (2) Himachal Law Reporter 869, the revenue authority had proceeded to determine the question of title. However, the procedure was not followed, and the decree sheet was not prepared. It was held that the plaintiff has to avail the remedy of appeal, and the civil suit cannot be filed before the Court. It was observed: -

"12. On the asking of the appellants, the Revenue Officer did proceed to determine the title of the parties in the proceedings for partition pending before him. It being a different matter that he did not follow the procedure, nor was any decree sheet prepared by him. But then, as has been held by this Court in State of Himachal Pradesh v. Chet Ram, 2000 (3) Shim. L.C. 344, the appellants have a remedy of filing an appeal and not independently assail the order by way of a civil suit. In fact, appellants did prefer an appeal and had to exercise remedies only in accordance with the special statute."

In Label Chand alias Albel Chand vs. Smt. Sita Devi 2017 (1) Him. L.R. 44, a civil suit was filed to contend that the best portion was allotted to the defendants by the revenue authorities in the partition proceedings. It was held that civil courts do not have jurisdiction to entertain such suits. It was observed:

"Admittedly, the jurisdiction of the civil Court to try and entertain a suit of this nature is barred under Sub Section (1) of Section 171, clause (XVII) and XVIII) of H.P. Land Revenue Act. The remedy available against an order of partition is to file an appeal/revision before the revenue authorities, i.e., the Collector."

In Chamko Devi vs. Mohinder, Latest HLJ 2011 (1) HP 101, a civil suit was filed asserting that the inferior quality land was allotted to the plaintiff contrary to the mode of partition. It was held that the suit was barred. It was observed:

"16. Now, in the instant case, the title of the land is not in dispute. The shareholding is not in dispute. It is urged that, in violation of the Mode of partition, poor quality and less land have been allotted to the plaintiffs. The Courts below have repelled this contention on the merits. I see no infirmity in the same. That apart, the jurisdiction of the Civil Court to go into this aspect of the matter is specifically barred. In the instant case, it cannot be said that either there has been a violation of principles of natural justice or any procedural irregularity adopted by the revenue authorities while passing the orders under challenge."

Thus, it is apparent that the jurisdiction of the civil Court to go into the question related to the partition proceedings is barred as per Section 171 of the H.P. Land Revenue Act. In the present case, the suit land was partitioned by the revenue authorities, and the Civil Court cannot declare that the suit land was purchased by the plaintiff, ignoring the partition proceedings. It was laid down by this Court in Dev Raj versus Mansha Ram, latest HLJ 2002(2) HP 1222, that Tehsildar settlement is a competent authority under the Land Revenue Act for the correction of revenue entries, and an order passed by him would constitute a res-judicata before the Civil Court. It was observed:

"6. In this regard, it may also be appropriate to observe that the Tehsildar settlement is a competent authority under the Land Revenue Act to have ordered the correction of the revenue entries, as in the present case. It is a case of the order having been passed by an authority having limited jurisdiction, which could have passed the same under the law. The same having not been challenged in accordance with the law is also not disputed at the hearing of this appeal. Here, Mr Ajay Sharma submitted that his client was not present when this order was passed. This plea is factually incorrect, being contrary to the contents of Ext. D-5, as it clearly records not only his presence, but also the plaintiff having led evidence and thereafter, having been heard by the Revenue Officer. This decision, i.e. Ext. D-5 clearly attracts provisions of section 11 (viii) of the Code of Civil Procedure and operates as res judicata."

The plaintiff was required to assert his claim of the title before the competent authority, and once it was not done and the partition was effected, it is impermissible to re-agitate the same claim before the Civil Court, as this question would be barred by the principle of constructive res judicata.

It was submitted that the plaintiff was not properly served and there is a violation of the principle of natural justice, which would confer jurisdiction upon the Court. Learned Appellate Court had also held that the service of the plaintiff during the partition proceedings was not as per law because the signatures of the plaintiff were not obtained, and the copy of the partition application had not accompanied the summons. Neither of these reasons is sustainable. Copy of the summons (Ext.D7) shows that the plaintiff was informed about the pendency of the partition proceedings and that the matter was listed on 24.06.1986 at 10 a.m., and in case of non-appearance, the ex parte proceedings would be held against him. The endorsement on the summons reads that "श्रीमान जी सूचि'त हुआ, Sir, I am informed". Thereafter, it bears the signatures of a person in English with the date 14.06.1986. It also contains the endorsement of Hira Lal, Process Server, that a copy of the notice was served upon Girdhari Lal, and the report was submitted for further action. Therefore, the conclusion drawn by the learned Appellate Court that the notice was not delivered to the plaintiff was incorrect. The report contains the endorsement of the plaintiff regarding the receipt of the information and the endorsement of the Process Server that the summons was served upon Girdhari Lal.

It was submitted that the defendant had not examined Hira Lal, who had effected the service, and it is impermissible to hold that the summons was duly served upon the plaintiff. This submission is not acceptable. Every official act is presumed to have been done regularly under Section 114 of the Indian Evidence Act, and in the present case, the summons was served upon the plaintiff by a Public Official while discharging his official duties. Therefore, the presumption under Section 114 of the Indian Evidence Act would apply to the present case, and the burden would shift upon the plaintiff to prove the contrary. The plaintiff did not produce any contrary evidence. The plaintiff Girdhari Lal could not appear before the Court because he had died during the pendency of the proceedings. His legal heir, Chaman Lal (PW1), denied for want of knowledge that the defendant had filed an application for partition before the learned AC First Grade. He could not say whether the summons had the signatures of his father. Thus, his statement is not sufficient to rebut the presumption of correctness attached to the official record, and it could not have been concluded that the summons was not delivered to Girdhari Lal.

The learned Appellate Court also held that there was no proof of the fact that copy of the application accompanied the summons and it was "settled position of law" that unless the copy of mutation (sic petition) is enclosed along with the summons mere service of summons is not a proper legal service Learned Appellate Court had not referred to any provision of law in support of its conclusion that it was a settled position of law, and it appears that the Order V Rule 2 of the Code of Civil Procedure, 1908 (CPC) influenced this conclusion. Order V Rule 2 of the CPC reads as follows:

Copy of the plaint annexed to the summons. -Every summons shall be accompanied by a copy of the plaint.

It was laid down by this Court in Ishwar Dass vs Mansha Ram, AIR 2005 HP 44, that the provisions of Order V of CPC do not apply to the partition proceedings and they are governed by Section 21 of the HP Land Revenue Act. It was observed:

"5. The only ground taken before me by the learned counsel for the plaintiffs/appellants is that the plaintiffs/appellants had not been served in the partition proceedings before the Assistant Collector in accordance with law, since the provisions of Order 5, C.P.C. had not been complied with and that the Assistant Collector had illegally proceeded ex parte against the plaintiffs/appellants in the partition proceedings. However, I find no force in this submission of the learned counsel for the plaintiffs/appellants. As referred to above, the partition proceedings were pending before the Assistant Collector and not before a Civil Court. The provisions of Order 5, CPC would have no application to the partition proceedings which were pending before the Assistant Collector. On the other hand, the provisions of Section 21 of the Himachal Pradesh Land Revenue Act 1953 would apply to the partition proceedings which were pending before the Assistant Collector. Section 21 of the said Act reads as under: -

"21. Mode of service of summons.-

(1) A summons issued by a Revenue Officer shall, if practicable, be served (a) personally on the person to whom it is addressed or failing him (b) his recognised agent (* * *)

(2) If service cannot be so made, or if acceptance of service so made is refused, the summons may be served by posting a copy thereof at the usual or last known place of residence of the person to whom it is addressed, or if that person does not reside in the district in which the Revenue Officer is employed and the case to which the summons relates has reference to land in that district, then by posting a copy of the summons on some conspicuous place in or near the estate wherein the land is situated.

(3) If the summons relates to a case in which person having the same interest are so numerous that personal service on all of them is not reasonably practicable, it may, if the Revenue Officer so directs, be served by delivery of a copy thereof to such of those persons as the Revenue Officer nominates in this behalf and by proclamation of the contents thereof for the information of the other persons interested.

(4) A summons may, if the Revenue Officer so directs, be served on the persons named therein either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered under Part III of the Indian Post Office Act, 1898.

(5) When a summons is forwarded in a letter, and it is proved that the letter was properly addressed and duly posted and registered, the Revenue Officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of post."

From a perusal of the above, it would be clear that where the summons has been issued by the revenue officer, the same shall, if practicable, be served personally on the person to whom it is addressed or upon his recognised agent. It is further provided therein that if service cannot be so made, or if acceptance of notice so made is refused, the summons may be served by positing a copy thereof at the usual or last known place of residence of the person to whom the summons has been addressed. In the present case, the service had been duly effected upon the appellants by following the procedure provided under Section 21 of the aforesaid Act. Under these circumstances, in my opinion, it cannot be said that the plaintiffs/appellants had not been served in the partition proceedings before the Assistant Collector in accordance with law, merely because provisions of Order 5, CPC had not been complied with. As referred to above, in the partition proceedings pending before the Assistant Collector, the provisions of Section 21 of the said Act would apply and not the provisions of Order 5, CPC, especially when there is a specific provision regarding the mode of service of summons provided under the provisions of the Himachal Pradesh Land Revenue Act, 1953.

Therefore, the learned Appellate Court erred in applying the provisions of Order V of the CPC to the present case.

This Court further held in Ishwar Dass (supra) that when the service was proved to have been effected as per Section 21 of the HP Land Revenue Act, the Civil Courts do not have the jurisdiction. It was observed:

"7. Once it is found that the plaintiffs/appellants were duly served with the summons in the partition proceedings before the Assistant Collector, in my opinion, it cannot be said that the orders passed by the revenue authorities in the partition proceedings suffered from any legal infirmity, which may give jurisdiction to the Civil Court. In fact, under Chapter IX of the aforesaid Act, revenue officers have been empowered to entertain the partition proceedings in respect of the agricultural land. Section 171 of the aforesaid Act excludes the jurisdiction of the Civil Court in matters within the jurisdiction of the revenue officers, where the revenue officer has exercised any of the powers vested in him under the said Act. It is also provided therein that a Civil Court shall not exercise jurisdiction in respect of any claim for partition of an estate, etc. or any question connected therewith or arising out of the partition proceedings, not being a question of title. In this view of the matter, in my opinion, both the Courts below were perfectly justified in dismissing the suit of the plaintiffs, whereby they had challenged the legality of the orders passed by the Assistant Collector, Collector and the Divisional Commissioner in respect of the partition proceedings."

Therefore, the civil suit in the present case was barred by the provisions of Section 171 of the H.P. Land Revenue Act and this substantial question of law is answered accordingly.

Substantial Questions of Law Nos. 2 and 3:

It has been found above that the Civil Court has no jurisdiction to hear and entertain the present suit. Therefore, it is impermissible to give any findings on the other substantial questions of law. It was laid down by the Hon'ble Supreme Court in Athmanathswami Devasthanam Vs. K. Gopalaswami Ayyangar AIR 1965 S.C. 338, that once the Court concludes that it had no jurisdiction, it should not give any findings on the merit. It was observed: -

"13. The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of a certain amount paid by the respondent. This contention is correct. When the Court has no jurisdiction over the subject matter of the suit, it cannot decide any question on the merits. It can simply decide on the question of jurisdiction and, con-cluding that it had no jurisdiction over the matter, had to return the plaint."

Therefore, in view of the binding precedents of the Hon'ble Supreme Court, these substantial questions of law have become redundant.

Final Order:

In view of the above, the present appeal is allowed, and the judgment and decree passed by the learned Courts below are set aside, and the plaint is ordered to be returned to the plaintiff for presentation before the competent court having jurisdiction.

The appeal stands disposed of, so also the pending application(s), if any.

Records of the learned Courts below be sent down forthwith.