Harish Chander and Another vs Bahadur Chand and Another

J.V. Gupta, J.—This appeal is directed against the judgment of the Additional District Judge, Hissar dated September 24, 1986, whereby the decree and judgment of the trial Court passed in favour of the Plaintiff was set aside and the plaint was ordered to be returned for presentation to the proper forum.

The Plaintiffs-Appellants filed the suit for separate possession of the agricultural land on the allegations that the parties were governed by Hindu Dharamshastras in the matters of alienations and that the suit property was coparcenary property. It was also alleged that the Plaintiff Harish Chander was the adopted son of Kanhaya Lal and, thus, they were entitled to one third share in the suit land after the death of Kanhaya Lal. However, the suit was contested and ultimately the trial Court decreed the Plaintiff''s suit. In appeal, it was contended on behalf of the Defendants that the civil Court had no juris-diction to try the suit as the suit land was agricultural land and the Plaintiff had filed the suit for separate possession. Admittedly, no such objection was taken in the written statement or during the trial.

However, this objection prevailed with the learned Additional District Judge and he came to the conclusion that the jurisdiction of the civil Court was barred u/s 158(2) (xvii) of the Punjab Land Revenue Act, 1887 (hereinafter called the Act). Consequently, the decree of the trial Court was set aside

The learned Counsel for the Appellants submitted that since the question of title was involved, Section 158(2) (xvii) of the Act was not attracted in this case. In any case, argued the learned Counsel a decree could be pused and for actually petitioning the agricultural land, the parties could be directed to approach the revenue authorities, but there was no occasion for setting aside the decree passed by the trial Court on that ground.

After hearing the learned Counsel for the parties, I find force in the contention raised on behalf of the Appellant.

Section 158 (5) (xvii) of the Act reads.-

Except as otherwise provided by this Act.-(1) .........

(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely,-(i) to (xvi) ... . .

(xvii) any claim for 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 ;

It is, therefore, evident that if a question of title to the property is involved, the jurisdiction of the civil Court is not barred thereunder. It could not be disputed in this Court on behalf of the Defendants-Respondents that the question of title was involved in this case. Thus, the view taken by the learned Additional District Judge was wholly wrong illegal and misconceived.

Consequently, this appeal succeeds and is allowed. The order dated September 24, 1986, passed by the Additional District Judge is set aside and the case is sent back to the District Judge, Hissar, for deciding the appeal on merits in accordance with law. The parties have been directed to appear is his Court on August 19, 1987.