Genuine Promoters Pvt. Ltd. vs Vinod Kumar

Jaswant Singh, J.—Plaintiff is in revision under Article 227 of the Constitution aggrieved against the orders passed by the Courts below i.e. order dated 08.01.2014 passed by the learned Additional District Judge, Gurgaon and order dated 10.04.2012 passed by the learned Civil Judge (Jr. Divn.), Gurgaon whereby its application under Order 39 Rules 1 & 2 CPC for grant of temporary injunction has been declined.

In brief, facts are that the plaintiff/company filed a suit for permanent and mandatory injunction to the effect that the learned Assistant Collector Grade-I Sohana be restrained from passing the orders on an application for Takseem (partition) filed by defendant no. 1. Along with the suit, an application under Order 39 Rule 1 and 2 was moved by the plaintiff for restraining the AC Grade-I, Sohana to proceed with the case of partition till the pendency of the present suit and also for grant of injunction against the defendants and its heirs, agents, successors etc., from alienating, selling, disposing of the property during the pendency of the suit. Reply was filed by the respondent no. 1 whereby it was averred that the Revenue Court is competent to proceed with the proceedings of the partition case titled as "Vinod Kumar Vs. M/s. G.D. Goenka" and the Authority created under a particular Act cannot be restrained from exercising its jurisdiction under law.

Learned Counsel for the petitioner has argued that the learned Courts below have failed to appreciate the fact that as per Section 158(2)(xvii) of the Punjab Land Revenue Act, if on an agricultural land plots have been carved out and houses have been constructed, then the Revenue Court has no jurisdiction to partition the land and the Revenue Courts lose their jurisdiction. It has been further argued that the present petitioner has already moved an application under Order 1 Rule 10 CPC before the Revenue Authority in the partition proceedings to become a party, as the petitioner is the actual owner of the property in question and not defendant no. 1-Vinod Kumar and thus, it was argued that the learned Revenue Authority had no jurisdiction to pass the order on the partition application of Vinod Kumar in the absence of petitioner-company. It has been further argued that the learned District Judge has declined the relief of injunction to the petitioner primarily for the reasons that there is a bar u/s 117 of the Punjab Land Revenue Act for Civil Courts to entertain the suit upon which the Revenue Authority has jurisdiction by illegally ignoring the principle that Civil Courts are competent to entertain a suit where a question of title has been raised and thus, in view of the above, the impugned orders are liable to be set aside.

After hearing learned Counsel for the petitioner and perusing the paper book with his able assistance, this Court is of the considered view that the present petition is devoid of any merit and the same deserves to be dismissed.

Admittedly, defendant no. 1-Vinod Kumar has filed the suit for partition by impleading co-owner M/s. G.D. Goenka on the basis of revenue entries which exists in his favour in the year 2011, in which the petitioner herein is not a party and also, prima-facie, is not concerned with the suit property. It is also not in dispute that AC Grade-I is competent to entertain such application for partition pertaining to agricultural land. It is also not disputed that the present plaintiff/petitioner has moved an application under Order 1 Rule 10 CPC for being impleaded as a party and said application is still pending adjudication before AC Grade-I. In other words, the alleged sister concern (M/s. G.D. Goenka) of the present petitioner which is a party as a co-owner before the Revenue Officer has not filed the present suit raising the plea of Section 158(2) (xvii) of Punjab Land Revenue Act. The question of land having lost its agricultural nature is yet to be decided by any court of competent jurisdiction and at present prima facie there appears to be no evidence at all to hold that there is construction which has been raised by either of the parties. In totality of the circumstances, there appears to be no violation of any procedure or law committed by the Revenue Officer in dealing with the application for partition. Thus, no Revenue Authority or officer can be estopped from proceeding in a matter in accordance with law. Learned Counsel for the petitioner has relied upon Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, & Krishan Lal Vs. State of Jammu & Kashmir, to argue that the Civil Courts jurisdiction is not barred wherein order is in violation of the mandatory provisions of a statute, is without jurisdiction and nullity which amounted to jurisdictional error. There is no quarrel to the proposition of law laid down by the judgments of Hon''ble Supreme Court, however, it is evident from the facts observed earlier, Defendant no. 1-Vinod Kumar has approached the appropriate forum for the redressal of his grievance, and therefore, there is no violation of any statute and under these circumstances the Civil Court cannot debar or injunct this quasi judicial Authority i.e. Assistant College Grade-I from proceeding in accordance with law.

The argument that construction has already been raised by the alleged sister concern of the petitioner company i.e. M/s. G.D. Goenka, therefore, Assistant Collector Grade-I has no authority to partition the land as per Section 158(2) of the Punjab Land Revenue Act, this Court is of the opinion that this argument cannot be raised by the petitioner company for two reasons. Firstly, it is an admitted fact that petitioner is not a party to the lis pending before AC Grade-I and, therefore, at present is not aggrieved by the proceedings pending before the said Authority. Secondly, there is no prima facie evidence that there is construction over the agricultural land which has changed the nature of the suit land from being an agricultural land. As per Section 158(2) of the Punjab Land Revenue Act, 1887 a Civil Court is debarred from exercising its jurisdiction regarding assessment of revenue of an estate or holding which comes under the purview of the Revenue Officers. Although, the Division Bench of this Court in Surjit Singh Vs. F.C. Appeal to Punjab & Ors. 2012(5) RCR (Civil) 683 has held that if on an agricultural land construction has been shown then the said agricultural land loses its nature by the Act of the parties especially if it has been done by the person who is seeking partition. In the present case, there is no evidence that defendant no. 1-Vinod Kumar has done any kind of construction over the agricultural land which would debar him due to his own Act and conduct from seeking partition. This fact can only be ascertained by leading cogent evidence and if the plea of their being construction over the suit land is correct then the said plea is legally maintainable before the AC Grade-I where the proceedings have already been initiated. Learned Counsel has not been able to point out that the M/s. G.D. Goenka, sister concern of the petitioner-company has moved any such application before the AC Grade-I. In these circumstances, at present the Court cannot hold that the proceedings pending before AC Grade-I are prima facie beyond its jurisdiction. Similarly, the judgments Khushal Singh & Ors. Vs. Gurdip Singh 1987 RRR 469 & Kalyan Dass Vs. Som Nath 1987 RRR 48 are also not applicable to the facts of the present case.

Finally, learned Counsel for the petitioner has relied upon Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass, to say that till the pendency of the present petition the parties should maintain status quo regarding alienation so that no third party right is created which may cause unnecessary multiplicity of litigation. This argument again is of devoid of any merit because every co-sharer has a right to sell of its property and the person who purchases the property would step into the shoes of its seller. Further, the intention of the Hon''ble Supreme Court as well the statute has never been to create a clog on the rights of the owner merely because there is pendency of a suit.

In view of the above, finding no merit in the present revision petition, the same is hereby dismissed.