Kundan Lal vs Jai Lal

V.K. Jhanji, J.—Jai Lal made an application to the Assistant Collector for partition of the agricultural land. During the pendency of the partition application before the Assistant Collector, petitioner i.e. Kundan Lal, and Ratti Ram filed a suit, challenging the proceedings before the Assistant Col-lector. During the pendency of the suit, partition was sanctioned on 23.7.1979. This order was challenged in appeal In appeal, the order was set aside and the case was remanded to the Assistant Collector. The Assistant Collector vide his order dated 19th December, 1980, again passed an order of partition, which was also challenged in appeal. Appeal was allowed and the case was once again remanded to the Assistant Collector. The civil suit which was pending was withdrawn on 16.11.1981. On 193.1984 the Assistant Collector allowed the application and passed an order partitioning the land. The petitioner i.e. Kundan Lal, challenged this order in the suit out of which the present revision petition has arisen. In the suit, declaration is being sought to the effect that the petitioner is owner in possession of the property in dispute, and the order of the Assistant Collector 1st grade, Sonepat, dated 19.3.1984, in partition proceedings in nonest, null and void, without jurisdiction and has no effect on the rights, title and interest of the petitioner. The petitioner also sought relief of permanent injunction, restraining defendant No. 1 from interfering in his peaceful possession over the house and the plot in dispute and from demolishing any part of the said house. Along with the suit, an application was filed for grant of ad-interim injunction, which was granted by the trial Court, but in appeal the same was vacated. The order of the appellate Court vacating the order of ad-interim injunction is being impugned in this revision petition.

Learned counsel for the petitioner contended that die Assistant Collector had no jurisdiction to pass an order of partition in respect of die property, on which residential house has been constructed upon. He also contended that die appellate Court ought not to have presumed that Gair Mumkan Makan on plot No. 122 is not meant for tethering cattle and storing fodder.

On the other hand, learned counsel for the respondents submitted that the petitioner is not entitled to restrain the respondents from executing the order of partition which was passed after affording reasonable opportunity of hearing to the petitioner.

Having heard the learned counsel for the parties, I find no merit in this revision petition. The petitioner before the civil court has challenged the order of partition on the ground that the Assistant Collector had no jurisdiction to partition the land, as it was not an agricultural land, the land was allotted to the parties in consolidation of holdings for extension of their abadi. However, the order of the Consolidation Authorities or the Scheme under which the land was allotted to the parties in consolidation of holdings for extension of their abadi, has not been brought on record. In the absence of such an order or scheme, it cannot be held that the land is not an agricultural land and was allotted for extension of abadi. The petitioner, otherwise, has not been able to prove that the land in dispute was meant for residential purpose. He has not placed on record any receipt regarding payment of "chulha tax" or house-tax. Counsel for the petitioner produced two receipts for perusal, Which reveal that the same were issued by the Gram Panchayat during the pendency of the partition proceedings. The receipts were rightly not taken into consideration by the Courts below because these were issued during the pendency of litigation between the parties. There is no receipt prior to the filing of the application for partition.

Consequently, I find that the first appellate Court was right in refusing to restrain the respondents from executing the order of partition. The revision petition is accordingly dismissed, with no order as to costs.