Nand Singh and Others vs Labh Singh and Others

V.K. Jhanji, J.—This is plaintiff''s second appeal directed against the judgment and decree of the Additional District Judge, Ropar whereby while allowing the appeal filed by the defendants the judgment and decree of the trial Court was set aside and in consequence thereof, suit filed by the plaintiffs was dismissed.

Plaintiffs had filed suit for declaration that land measuring S3 kanals 16 marlas situated in village Thalipur, District Ropar, had already been partitioned among the co-sharers and so orders dated 13.8.1985 and 22.7.1987 passed by the Collector and the Commissioner and the order of the Financial Commissioner passed in revision, ignoring the private partition were illegal. Plaintiffs had also sought consequential relief of injunction for restraining defendant No.1, Labh Singh, from getting the land partitioned through the Revenue Agency. Plaintiffs in their suit averred that the land in suit was partitioned among the co-sharers at the time of consolidation and the land so taken in partition was duly recorded in the cultivation column of jamabandi. Shyama, father of Labh Singh (defendant No.1) wanted to get the land partitioned again through the Revenue Court at which some of the appellants filed civil suit No. 85 of 1971 for declaration against Shyama. In the said suit filed against Shyama, plaintiffs therein sought declaration that the land had already been partitioned and the parties are in possession of their respective shares since 1952. In that case, a compromise was effected between the parties and a decree was passed in favour of the plaintiffs therein and against Shyama, deceased, on the basis of the compromise. Thereafter, Shyama died and his son, Labh Singh inherited the land in suit. Labh Singh filed an application for partition of the land before the Assistant Collector, 1st grade against the plaintiffs (appellants herein) and defendants 2 to 9 who had acquired the land from previous owners. In that application, plaintiffs filed objections stating that the land had already been partitioned. Assistant Collector Ist grade dismissed the application filed by Labh Singh by stating that question of title is involved. However, on appeal, the Collector set aside the order of the Assistant Collector Ist grade by saying that the decree passed in civil suit No. 85 of 1971 was never given effect to and since a period of more than 12 years has elapsed after the passing of the decree, it cannot be given effect to. The Collector also found that there had been no private partition between the parties, nor the same was ever reflected in the revenue record. Plaintiffs filed an appeal before the Commissioner and further revision to'' the Financial Commissioner. Appeal as well as the revision were dismissed. It is only thereafter that the civil suit was filed. On notice of the suit, Labh Singh, defendant No.1, filed written statement contesting the claim set up by the plaintiffs in the suit. In his written statement, Labh Singh submitted that the land in dispute had not been partitioned and the same is jointly owned and possessed by the parties. He further submitted that the plaintiffs have already exhausted their remedy before the revenue Authorities right upto the Court of Financial Commissioner, but have failed in their effort. He submitted that the Civil Court has got no jurisdiction to try and entertain the suit as the plaintiffs raised question of title before the Revenue Court and that question of title had been decided against them. He also submitted that a decision having been given by the Revenue Officers that there had been no partition, the issue of partition operates as res-judicata against the plaintiffs. Trial Court relying upon the decree passed in civil suit No. 85 of 1971, decreed the suit by saying that the land in suit already stood partitioned among the co-sharers. Orders of the Collector, Commissioner and the Financial Commissioner were set aside being illegal and without jurisdiction. Defendant, Labh Singh was restrained from getting the land partitioned through the Revenue Agency. However, in appeal by Labh Singh, judgment and decree of the trial Court was set aside and resultantly, suit filed by the plaintiffs was dismissed. The first appellate Court held that the suit before a Civil Court challenging the order of the Revenue Court was not'' competent as the jurisdiction of the Civil Court is barred. Hence, this second appeal.

Learned counsel for the plaintiffs contended that the Revenue Officer did not give any finding on the question of title raised during the partition proceedings and as such, the Civil Court had the jurisdiction to entertain (the suit. Counsel contended that the first appellate Court has illegally and -erroneously held that against the order of the Collector, an appeal to the District Judge was competent. Counsel further contended that such a finding is contrary to the provisions of the Act. Against this, counsel for the defendant, Labh Singh, contended that not only the question of title was raised before the Revenue Officer, but was decided and so, the only remedy available under the provisions of the Punjab Land revenue Act was to challenge the order of the Collector before the District Judge in appeal and this having not been done, the jurisdiction of the Civil Court is barred.

On going through the record and hearing the learned counsel for the parties, I am of the view that the appeal is without any merit. As noticed earlier, on an application made by Labh Singh to the Assistant Collector Ist Grade for partition of the land in suit, plaintiffs appeared before the Assistant Collector and raised question of title by saying that the land already stood partitioned. In this regard, plaintiffs referred to the judgment and decree passed in civil suit No. 85 of 1971. Assistant Collector after taking the evidence, came to the conclusion that the land already stood partitioned and so, dismissed the application filed by Labh Singh. In appeal, the Collector held that there had been no private partition between the parties. In regard to the decree passed in civil suit No. 85 of 1971, the Collector held that the decree was never given effect to within the period of limitation and so, it cannot be given effect to. Plaintiffs instead of filing an appeal before the District Judge, as provided under Clause (c) of Sub-section Section (2) of Section 117 of the Act, filed an appeal before the Commissioner and further revision to the Financial Commissioner. In my view, the learned District Judge is right in saying that since the plaintiffs failed to avail of the remedy of appeal as provided u/s 117 of the Act, the jurisdiction of the Civil Court is barred. Section 117 of the Act is reproduced hereunder:

Disposal of question as to title in property to be divided''

(1) Where there is a question as to title in any of the property of which partition is sought, the Revenue Officer may decline to grant the application for partition until the question has been determined by a competent Court, or he may himself proceed to determine the question as though he were such Court.

(2) Where the Revenue Officer himself proceeds to determine the question, the following rules shall apply, namely :-

(a) If the question is one over which a Revenue Court has jurisdiction, the Revenue Officer shall proceed as Revenue Court under the provisions of the Punjab Tenancy Act, 1887.

(b) If the question is one over which a Civil Court has jurisdiction, the procedure of the Revenue Officer shall be that applicable to the trial of an original suit by a Civil Court and he shall proceed a judgment and decree containing the particulars required by the CPC to specified therein.

(c) An appeal shall lie from the decree of the Revenue Officer under Clause

(b) as though that decree were a decree of a Subordinate Judge in an original suit. (d) Upon such an appeal being made, the District Court or High Court, as the case may be, may issue an injunction to the Revenue Officer, requiring him to stay proceedings pending the disposal of the appeal.

(e) From the appellate decree of a District Court upon such an appeal, a further appeal shall lie to the High Court if such a further appeal is allowed by the law for the time being in force."

It is clear from a reading of the Section that if on receiving application for partition the Revenue Officer finds that question of title is involved, he may stay the application for partition until the question has been determined by a competent Court or he may proceed to determine the question as though he was such a Court. In Siraj Din v. Narain Das and Ors. AIR 1927 Lah 412 Chief Justice Shadi Lal (as his Lordship then was) speaking for the Division Bench, after referring to a judgment of Division Bench of the Punjab Chief Court in Aft. Lachmi Bai v. Mt. Hondi Bai, held that "the only power which Section 117 of the Punjab Land Revenue Act gives to a Revenue Officer acting as a Court is to determine the question of title arising in the partition proceedings, It will be observed that a revenue Officer as such has no jurisdiction to determine any civil dispute, but an exception has been made in the case of a Revenue Officer dealing with an application for partition. In such a case if a question of title is raised, he cannot order partition until that question is determined by a competent authority. A civil Court is the only authority having jurisdiction to adjudicate upon a dispute relating to title, but in order to expedite partition proceedings the legislature has created an exception to the ordinary rule and invested the Revenue Officer with jurisdiction to determine the question of title as if he were a Court." On determination of question of title by the Revenue Officer, an appeal lies to the District Judge under Clause (c) of Sub-section section (2) of Section 117 of the Act, Second Appeal is provided to the High Court. In the present: case, the order of the Collector indicates that before the Collector regarding title two questions had been raised. Firstly, the question relating to private partition among the co-sharers at the time of consolidation and secondly, the effect of decree passed in civil suit No. 85 of 1971. The Collector on the basis the revenue record produced before him, found that there had been no private partition as the same did not reflect in the revenue record. In fact, in the revenue record, land had. been shown to be joint. On the question relating to the effect of the decree passed in civil suit No. 85 of 1971, the Collector found that it was not given effect to, nor it could be given effect to after more than 12 years from the date it was passed. Thus, both the question relating to title came to be decided by the Collector in his capacity as a Revenue Officer within the meaning of Clause (b) of Sub-section section (2) of Section 117 of the Act. Plaintiffs instead of filing an appeal as provided under Clause (c), filed an appeal before the Commissioner and further revision to the Financial Commissioner. On their failure to file appeal before the District Judge against the order of the Collector, in my view the order of the Collector as affirmed by the Commissioner and Financial Commissioner became final and cannot be called in question in Civil Court. Section 158(1) of the Act excludes the jurisdiction of the Civil Court of any matter which the Revenue officer is empowered under the Act to dispose of or in which the Revenue Officer exercises any power vested in him. The Collector being a Revenue Officer had the power to determine the question of title and the question having been decided and not challenged in appeal before the District Judge, the jurisdiction of the Civil Court has rightly been held to be barred.

Faced with this situation, counsel for plaintiffs contended that the finding of the Collector and also of the Commissioner that the Civil Court decree cannot be given effect to after a period of 12 years, is erroneous in law inasmuch as there is no limitation. I am afraid to go into this contention as this contention could have been raised by the counsel only in appeal before the District Judge if one had been filed under Clause (c) of Sub-section-section (2) of Section 117 of the Act. The Civil Court would not sit in appeal against the order of the Collector.

Consequently, the appeal shall stand dismissed. No costs.