Pawan Kumar And Another vs Dev Raj (Deceased) Through His Lrs Smt. Kamlesh Kumari And Others

Satyen Vaidya, J

By way of instant petition, the petitioners have assailed order dated 31.08.2016 passed by learned Civil Judge (Junior Division), Palampur, District Kangra, H.P. in CMA No. 260/2016 in Civil Suit No. 167/2015 whereby the application of the petitioners under Order 7 Rule 11 of the Code of Civil Procedure (for short, “Code”) has been dismissed.

The petitioners herein are the defendants in Civil Suit No.167 of 2015 and respondents herein are the plaintiffs. Hereafter, the parties shall be referred to by the same status as they hold in the civil suit.

The plaintiffs have filed Civil Suit No.167 of 2015 seeking relief in following terms:

“It is, therefore, prayed that the suit for declaration that the order dated 22.10.2007 showing partition of land comprising in Khata No. 98, Khatauni No. 195, Khasra No. 91, 739, 741, 749, 750 Kita 5 measuring 0-40-97 Hectares situated at Mohal Samlua Tehsil Palampur, District Kangra, H.P. entered in jamabandi 1995-1996, is wrong, illegal against the laws, arbitrary, against all norms of justice and principle of natural justice is null and void and is also nullity in the eyes of law and the plaintiffs are not bound by the same and it does not at all effects rights of the plaintiffs as co-owner in joint possession of the land and gives no right, title or interest to defendant No.1 & 2 to claim separation of land being manipulated one and is result of connivance and collusion between the defendants No. 1 & 2 the defendant No.5 the Tehsildar Palampur being a statuary authority as envisaged in the Land Revenue in accordance with is required to act with fundamental principal of judicial procedure and principal of natural justice had not acted in accordance with fundamental principal of judicial procedure and principal of natural justice has prepared false, baseless and wrong record to deliberately and intentionally in utter disregard to the principal of justice to show that no part of the land of parties the land under partition in case No. 209/2005 is on the road head or abutting road to cause loss to the plaintiff and wrongful gain, illegal advantage and benefit to the defendant No. 1 & 2 has wrongly and illegally passed the order dated 22-10-2007 so the subsequent change in the revenue record bearing a red note in the remarks column of the jamabandi 2005- 2006 showing the mutation No.1247 and thereafter Jamabandi for the year 2010-2011 showing land in separate Khatas is merely a paper entry and the plaintiff and performa defendant No.7 are not bound by the wrong entries of the record and will not effect the status of the plaintiffs, defendants No. 1 & 2 and performa defendant No. 7 of co-owner and in joint possession of the land and the entries are liable to be deleted and corrected in the column of ownership and possession in the revenue record prior to the order of the partitioned as joint owners and on joint possession no Dhakal of the partitioned has been issued to delivered the possession and no possession warrant has not been implemented so the order of the collector sub Division Palampur dated 03-12-2008 passed in case No.13/2008 and order dated 23-09-2010 passed in revision No. 98/2009 and order dated 30-12-2014 passed in by Financial Commissioner of Appeal H.P. Shimla passed on the basis of wrong record are also wrong, illegal and against all norms of justice are liable to be set aside with the consequential relief of permanent prohibitory injunction restraining the defendants from claiming any right to claim separation on the strength of order dated 22.10.2007 passed in case No. 209/2005 and also restraining the defendants, their relatives, friends, agents, servants, assignees and labourers, masons from interfering in the peaceful and physical possession of the plaintiff over the land and also from forcibly dispossessing the plaintiff from the land and also encroaching upon the land or its any portion by raising forcibly construction or in any manner whatsoever and for mandatory injunction to demolished structure if any raised during the pendency of the suit land to restore the land or any portion to its original nature and defendant No.6 from issuing possession warrant to deliver the possession to defendant No.1 & 2 on the strength of order dated 22.10.2007 be passed in favour of the plaintiffs and proforma defendants and against the defendants, in the interest of justice.”

The contents of plaint reveal that an order was passed by the Assistant Collector 1st Grade, Palampur in case No. 209/2005 on 22.10.2007 confirming the mode of partition in respect of joint land of the parties herein. The said order was assailed by the plaintiffs in appeal No. 13/2008 before the Collector Sub Division, Palampur, but remained unsuccessful. The plaintiffs further filed a revision bearing No.98/2009 before the Commissioner Kangra Division, which also was dismissed on 30.12.2014.

In the civil suit filed by the plaintiffs, challenge has been made to the legality of partition proceedings and the order passed by the Assistant Collector 1st Grade, Palampur on the grounds which were available to the plaintiffs in appeal under the Himachal Pradesh Land Revenue Act. The suit has been filed by the plaintiffs after exhausting the remedy of appeal and revision under the provisions of H.P. Land Revenue Act (for short, ‘the Act’).

The defendants filed an application before learned trial Court for rejection of plaint under Order 7 Rule 11 of the Code. It was averred that the jurisdiction to decide partition proceedings was with the revenue courts and the said courts having finally decided the issues inter se the parties, the jurisdiction of Civil Court was specifically barred under Section 171 of the Act. In nutshell, the plea raised by the defendants was that the suit was barred by law.

The plaintiffs contested the application on the ground that their legal right has been infringed. It was also averred that the question of title was involved and cloud had been cast upon the title of the plaintiffs.

Learned trial Court dismissed the application of the defendants by upholding the contention of the plaintiffs that since the question of title was involved, the Civil Court had jurisdiction to try the suit.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

The facts are not in dispute. The land in respect of which Civil Suit No. 167/2015 has been filed by the plaintiffs was subject matter of partition proceedings inter se the parties before the revenue courts.

The plaintiffs have sought to challenge the partition proceedings by way of Civil Suit on the ground that the partition ordered by the revenue courts was not equitable as the valuable land on the road side was not allotted to the share of the plaintiffs.

Section 171 of the Himachal Pradesh Land Revenue Act, reads as under:

“171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.- Except as otherwise provided by this Act-(1) A Civil Court shall not have jurisdiction in any matter which the State Government or a Revenue Officer is empowered by this Act, to dispose of or take cognizance of the manner in which the State Government or any Revenue Officer exercises any powers vested in it or him by or under this Act; and in particular-

(2) A Civil Court shall not exercise jurisdiction over any of the following matters, namely-

(i)   …..

(ii)   …..

(iii)  …..

(iv)  …..

(v)   …..

(vi)  …..

(vii)  …..

(viii) …..

(ix)  …..

(x)   …..

(xi)  …..

(xii)  …..

(xiii) …..

(xiv) …..

(xv)  …..

(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;

(xviii) any question as to the allotment of land on the partition of an estate holding or tenancy, or as to distribution of land subject by established custom to periodical redistribution, or as to the distribution of land-revenue on the partition of an estate or holding or on a periodical redistribution of land, or as to the distribution of rent on the partition of a tenancy;

(xix) …..

(xx) ……

(xxi) …..

(xxii) ……

(xxiii)……

(xxiv) …..

(xxv) ……

(xxvi)……

Thus, once the jurisdiction vested in revenue courts/authorities is legally exercised, their action cannot be made subject matter of civil action unless a question of title is involved. In the instant case the plaintiffs have nowhere alleged that they had raised a question of title before the revenue courts/ authorities.

Indisputably, the Civil Court will have jurisdiction to try all civil suits unless barred expressly or impliedly. Section 171 of the Act bars the jurisdiction of Civil Courts on the matters which fall exclusively in the domain of revenue courts. The partition of land, indisputably falls in the domain of revenue courts. Once, the courts/authorities having jurisdiction have decided the issues involved inter se the parties, the same cannot be assailed by way of Civil Suit except on the grounds of lack of inherent jurisdiction and violations of principles of judicial procedure.

As noticed above, the plaintiffs had availed the remedy of appeal and revision against the order of partition passed by the Assistant Collector 1st Grade, Palampur. Thus, the plaintiffs had the opportunity to challenge the order of partition on available grounds including on the merits of the decision. It is not the case of the plaintiffs that the Assistant Collector 1st Grade, Palampur had no jurisdiction to decide the partition proceedings. No violation of fundamental principles of judicial procedure has been pleaded. The only case of the plaintiffs is that they had not been allotted the valuable land in partition, which by itself cannot vest the Civil Court with jurisdiction to decide the issues already decided by the competent court of jurisdiction.

Order VII Rule 11 of the Code, reads as under

Rejection of plaint. The plaint shall be rejected in the following cases-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

(e) where it is not filed in duplicate:

(f) where the plaintiff fails to comply with the provisions of rule 9.

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

Rule 11 (a) of Order 7, prescribes a ground for rejection of plaint in case the plaint is found to be without cause of action. The cause of action has to be inferred from the averments made in the plaint. The plaint, as held above, does not specify any cause of action for filing the civil suit save and except laying challenge to the partition proceedings decided by revenue courts on merits. Further, the suit of the nature filed by the plaintiffs is barred by Section 171 of the Act.

Learned trial Court has clearly erred in dismissing the application of defendants for rejection of plaint by holding that the question of title was involved. It is not understandable as to from where such an inference has been drawn. The plaintiffs have not challenged the title vested in the defendants, as such. Their only challenge is to the partition proceedings on the ground that the plaintiffs have not been allotted the valuable land on road side.

In light of above discussion, the petition is allowed, order dated 31.8.2016 passed by learned Civil Judge (Jr. Division), Palampur, District Kangra in CMA No. 260/2016 in Civil Suit No. 167/2015 is set-aside. The application of the defendants i.e. CMA No. 260 of 2016 under order VII Rule 11 of the Code seeking rejection of the plaint is allowed. The plaint in Civil Suit No. 167 of 2015 is ordered to be rejected.

The petition is accordingly disposed of in the aforesaid terms, so also the pending application(s), if any.