Mohinder Singh and others vs Dalip Singh

L.N. Mittal, J.—Mohinder Singh etc. sons and legal representatives of original defendant Bakhshish Singh since deceased have filed this second appeal, having been unsuccessful in both the courts below. Suit was filed by respondent-plaintiff Dalip Singh against his brother Bakhshish Singh-defendant for partition of suit land measuring 1 Kanal comprised of Khasra No. 143//13/3 situated in abadi deh of village Ghal Kalan. Ancillary relief of injunction was also claimed.

The plaintiff alleged that both plaintiff and defendant are owners of the suit land in equal shares having been purchased by Pala Singh and defendant vide dale deed dated 05.09.1967. Mutual partition was effected between them but the same was not recorded in revenue record. After death of Pala Singh, his share in the suit land was inherited by the plaintiff vide inheritance mutation No. 7903. The plaintiff also constructed a room in his portion and planted some trees.

The defendant controverted the plaint allegations and pleaded that plaintiff has become owner of the suit property on the basis of some forged documents. Family partition between Pala Singh and defendant was denied. Pala Singh resided with the defendants. Jurisdiction of Civil Court to try the partition suit was pleaded to be barred. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Moga vide judgment and decree dated 16.04.2009 decreed the plaintiff''s suit and passed preliminary decree of partition. First appeal preferred against the same by defendant through legal representatives has been dismissed by learned Additional District Judge, Moga vide judgment and decree 08.11.2010. Feeling aggrieved, legal representatives of defendant have filed this second appeal.

I have heard Learned Counsel for the appellants and perused the case file.

It is established by ample oral and documentary evidence on record that both parties are joint owners of the suit land in equal shares. Consequently suit of the plaintiff has been rightly decreed by the Courts below. It may be added that Jaswant Singh appellant No. 2 himself while appearing in the witness box admitted the version of the plaintiff. He admitted the possession of plaintiff over portion of the suit property as claimed by the plaintiff and also admitted common wall between the houses of the parties. Jamabandi also reveals that plaintiff and defendant are cosharers of the suit land to the extent of half share each. Jaswant Singh also admitted family partition between the parties. He stated that he constructed his house on his share and common wall was constructed between the portions of both the parties. The plaintiff has also constructed a room in his portion.

In view of the aforesaid, it cannot be said that there is any infirmity, much less illegality or perversity in the impugned judgments of the courts below, thereby decreeing the suit of plaintiff-respondent.

However counsel for the appellants contended that jurisdiction of civil Court to try the suit is barred by Section 158(2) (xvii) of the Punjab Land Revenue Act, 1887 and only Revenue Officer has exclusive jurisdiction to try the case of partition. The contention cannot be accepted. The plaintiff specifically pleaded that the suit land is situated within abadi deh of the village. This plea of plaintiff was not controverted by defendant in the written statement. Even otherwise, the suit land is not agricultural land because appellant No. 2 himself admitted in the witness box that they have constructed house in their portion of the suit property. Plaintiff has also contracted a room in his portion. Thus the suit land measuring only 1 kanal is not agricultural property but is being used as residential property by both the parties. Consequently on both counts, the suit land being in abadi deh and also the suit land being residential property, jurisdiction of civil Court to try the partition suit is not barred. On the contrary, only civil Court has jurisdiction to try this suit and Revenue Officer or Court has no jurisdiction over it. For the reasons aforesaid, I find no merit in this second appeal. No question of, law much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine.