Rawant Ram vs Havita Shree

Swatanter Kumar, J.—This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Sirsa dated 2.4.1997 dismissing the appeal preferred by the appellantplaintiff.

During the course of hearing, the learned Counsel appearing for the parties produced copies of relevant records. With the consent of the learned Counsel for the parties, appeal was heard on merit.

The facts as emerge from the record are that the plaintiffappellant herein had filed a suit for declaration to the effect that he is joint owner with the defendants as well as proforma defendants in the land measuring 459 kanals 8 marlas situated in Village Chadiwal as recorded in the jamabandi for the year 198586. It is alleged that partition had taken place between the parties which was recorded vide orders dated 5.10.1993 and 2.3.1994. It was averred that the orders of partition dated 5.10.1993 and 2.3.1994 passed by the Assistant Collector Ist Grade Sirsa and by the Collector in Appeal, respectively, are illegal and liable to the set aside as no instrument of partition had ever been prepared and actually taken place between the parties. It was further averred that defendant Havita Shree purchased the land measuring 45 kanals 19 marlas being 1/10th share of the total land and sale deed was executed on 10.8.1990 and mutation recorded thereupon. The said purchaser continued to be joint owner and partition as recorded was against statutory provisions of Sections 117 to 122 of the Punjab Land Revenue Act because it was made in a hasty manner. Until instrument of partition is prepared, partition cannot be effected. The said defendant is not entitled to the benefit of the orders and exclusive possession thereof. One of the pleas taken in the plaint was that the State of Haryana was necessary party to the proceedings before the Collector and the land measuring 54 kanals 4 marlas was declared surplus in the land of the coshares. This land was declared surplus in the hands of big landowners which was again incorrect. On these grounds, the orders of partition were challenged.

The suit was contested by defendant No. 1 who raised preliminary objections that the suit in the present form was not maintainable and the plaintiff has not right to challenge the partition. It was further pleaded that the suit is barred by the principles of res judicata because a revision is already pending in the Court of Commissioner, Hissar. It was averred that instrument of partition was prepared on 19.11.1993 and as such the plaintiff has no cause of action. The defendant claimed to be entitled to possession of 1/10th share as owner as the orders were in accordance with law, passed within the four corners of jurisdiction available to such Authorities and in the face of instrument aforestated, prayer for dismissal of the suit was made. On the pleadings of the parties, the learned trial Court framed the following issues :

Whether the plaintiff is coowner of the suit land as alleged ? OPP

Whether the order dated 5.10.1993 passed by the Assistant Collector Ist Grade, Sirsa is wrong, illegal and is liable to been set aside as alleged ? OPP.

Whether the suit is not maintainable in the present form ? OPD.

Whether the plaintiff has no locusstandi to file the present suit ? OPD.

Relief.

After having afforded opportunity to the parties to lead evidence, oral as well as documentary, the learned trial Court decided all the issues against the plaintiff and in favour of the defendants and dismissed the suit vide judgment and decree dated 20.11.1995. The plaintiffappellant unsuccessfully assailed the judgment and decree of the trial Court in the first appeal before the learned Additional District Judge, Sirsa as already noticed. This gives rise to the filing of the present regular second appeal.

Learned counsel appearing for the appellant has basically raised two contentions for considerations of the Court. One is that the learned Courts below came to the conclusion that there was no jurisdiction of the Civil Court to entertain such a suit and in that situation, the plaint should have to be returned under Order 7 Rule 10 CPC and the suit could not be dismissed. Secondly it was contended that the finding arrived at by the learned Courts below is contrary to the record. It is further averred that the State of Haryana being a necessary party before the revenue authorities and having not been so impleaded in the partition proceedings, the orders were liable to be set aside and the present suit of the plaintiff should have been decreed.

At the very outset, it needs to be noticed that both the Courts have given concurrent findings of fact deciding all the issues in favour of the defendantsrespondents herein. It has been noticed as a matter of fact that instrument of partition was executed and the authorities had passed the orders in accordance with law and the order dated 5.10.1993 was duly assailed in appeal by the plaintiff. The appeal before the Collector was dismissed on 2.3.1994 on merits upholding the contentions raised on behalf of the defendants in the suit. Once a party availed of departmental remedy and even revision against the order dated 2.3.1994 was dismissed by the Commissioner and the said order has become final as conceded during the course of hearing, it is not open to the plaintiffappellant herein to assail the order on the same grounds before the Civil Court in the present form. Having availed of remedy before the Forum of competent jurisdiction which the appellant plaintiff himself opted for, he in any case would be deprived from raising the plea of jurisdiction. The present suit thus would be hit by the principles of res judicata. In this regard reference can be made to the judgment of Division Bench of this Court in the case of Amarjit Singh and another v. Financial Commissioner, 1978 PLJ 228. Doctrine of merger which is well recognised principle in law would squarely apply to the facts of the present case and decision of the Commissioner in which both the orders against the present appellant were passed remained unchallenged. They became final between the parties and therefore, even on this ground, the contention of the learned Counsel for the appellant is not tenable.

In regard to the jurisdiction of the Civil Court, the plaintiff himself has filed the suit. No issue was claimed with regard to jurisdiction of the Civil Court as is clear from the above noted issues. Learned Counsel for the appellant has attempted to misread the finding given by the learned Courts below. Learned Ist Appellate Court observed that even if Civil Court has no jurisdiction as the question of title was not involved, within the purview of section 158 of the Punjab Land Revenue Act as the party has already exhausted his complete remedy available to him before the revenue authorities under the Special provisions of the Act. As such, impugned orders were no way liable to be set aside. I am unable to see any error of jurisdiction in this regard. These are mere observations of the Court recorded on the basis of the arguments advanced before the Court. There was neither any issue framed on the question of jurisdiction nor was it raised as a ground of attack before the first Appellate Court. Learned Courts below had not decided the issue of jurisdiction because it never arose for their consideration. On the contrary, based on exhibit D.7, the Courts below came to the conclusion that the State of Haryana was not necessary party and the orders in question had been duly acted upon between the parties. The trial Court had held that after giving full opportunity to the parties in the partition proceedings, naksha be was prepared, the parties were given time to file objections and arguments were heard. Certificate of partition Ex. D.7 had also come in existence which was subsequent to the impugned orders. Based upon the documentary evidence and conduct of the plaintiff, the suit was dismissed. The Ist Appellate Court declined to interfere on any ground raised. Learned Counsel appearing for the appellant while relying upon the case of Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and another, AIR 1963 Supreme Court 786 argued that the State of Haryana was necessary party and in the absence thereof, the orders impugned in the suit are liable to be set aside. This case has no application to the facts of the present case. In that case, necessary party i.e. the party in whose favour the order was passed by the authority was not impleaded as party and the Hon''ble Supreme Court held that they ought to have been impleaded as parties and rejected the partition between the parties. That is not the case here admittedly. State of Haryana was neither necessary nor proper party to these proceedings. The question of surplus land has to be determined keeping in view the case of the State and the claim of the alleged cosharers in the land in question, while the question of partition resulting from sale deed would be determined between the cosharers and the State would neither be concerned nor affected by such proceedings. The surplus land already stood vested in the State and reliance placed by the learned Ist Appellate Court on Amar Singh v. Gram Panchayat Sabun and others, 1992 PLJ 69 : 1992(1) RRR 42 (P&H), Sucha Singh and another v. Nand Singh and others, 1980 PLJ 434 (Punjab and Haryana and Sohan Lal v. Financial Commissioner and others, 1993 PLJ 796 : 1994(1) RRR 183 (P&H)apparently appears to be correct.

At this stage, in the facts and circumstances of the present case, even if it is assumed for the sake of argument that the question of jurisdiction of Civil Court was considered, even then it can safely be concluded that observations of the learned Ist Appellate Court are correct and well founded in law. It is not necessary for the Court concerned to return the plaint where on merits it comes to the conclusion that the suit was not maintainable because of bar created in law itself. In the present case, admittedly the party has already exhausted his remedy available to it under the Punjab Land Revenue Act and in that situation return of plaint in any case would be inconsequential and would be an order in futility. No plaint could be presented before the revenue authority is in any case. While considering the somewhat similar question, this Court in RSA 2555 of 1997 Punjab Wakf Board v. Abdul Latif and others, decided on 29.3.1998 held as under :

"Therefore, the question directly falling for determination before the Court was whether the property is owned or is vested in Panchayat under the provisions of the said Act. Once that question arises for consideration, the jurisdiction of the Civil Court is completely barred. The learned Courts below have relied upon the judgments of this Court for coming to that conclusion. This view apparently is in consonance with the settled principles governing the subject.

Once the Court had come to a conclusion that the suit was not maintainable for inherent lack of jurisdiction of the Civil Court, in view of the provisions of Section 13 of the Act then order to return the plaint for presentation before the revenue authorities would not be an appropriate exercise of jurisdiction. It would also not be the logical result of the above discussion. The learned Courts below had arrived concurrently at a final view of the matter that the Civil Courts had no jurisdiction. This conclusion of the Courts below is well reasoned one. It that event the only proper course of action for the Court was to reject the plaint and not to direct its return under the provisions of Order 7 Rule 10 of the Code of Civil Procedure. In the case of AS Overseas Private Limited v. Shri Ishwar Chinta Haran Shiv Thakur, reported as 1994(3) Civil Law Journal 530, a Division Bench of the Calcutta High Court held that jurisdiction of the Civil Court was barred as the dispute related to land stated to be vested in the society and jurisdiction of the Civil Court being barred the proper course was to reject the plaint. It needs to be noticed in the present case that the learned trial Court upon appreciation of oral and documentary evidence and report of the local Commissioner decided issue No. 1 as well against the plaintiff, thus apparently concluding that the land in question was not in the ownership and possession of the plaintiff."

I have already noticed that both the Courts below have come to concurrent finding of the fact based upon proper appreciation of documentary evidence that the partition had actually been effected between the parties and impugned orders have been passed in accordance with law. Nothing could be brought to the notice of the Court by the learned Counsel for the appellant which would justify interference in the concurrent findings of fact, by this Court in the regular second appeal. Merely because it may be possible to take another view on the same facts, is no ground for interference. The scope of interference by the High Court in RSA in concurrent findings of fact is very limited one and is controlled by various limitations spelt out by the Hon''ble the Supreme Court in various judgments. In this regard, reference can be made to the case of Ramanuja Naidu v. Kanniah Naidu and another, JT 1996(3) SC 164 : 1996(2) RRR 554 (SC).

In view of detailed discussion above, I find no merit in this appeal and the same is dismissed. However, there shall be no order as to costs.