Shri Prit Singh vs Shri Sudhan Singh and Others

Sanjay Kishan Kaul, J.—The plaintiff has filed a suit for partition. It is stated in the plaint that the plaintiff is a son of Shri Sudhan Singh,

defendant No. 1 and is a member of the coparcenery. There is stated to be a residential plot at Maidan Garhi where the parties are residing. The

total land is stated to be measuring 43 bighas and 6 bids was in Village Maidan Garhi. The plaintiff claims 1/6th share in the property and with that

allegation the partition suit has been filed.

The plaintiff did not file any documents in support of the plaint nor produced any evidence in respect thereof. The plaintiff has only filed his

affidavit in examination-in-chief whereby what is stated in the plaint has been reiterated. The defendants were earlier appearing in the matter and

filed written statement but thereafter failed to appear and were proceeded ex parte. The suit was thus set down for final hearing.

In a partition suit, the plaintiff was, in my considered view, required to file either proper title documents or certified copies of revenue records to

show the nature and character of the land. The plaintiff has failed to do so.

The defendants have filed their written statement but thereafter stopped appearing. A perusal of the written statement brings to light two

important aspects. The first is that the plaintiff had earlier filed a suit for declaration and partition for the same property in the year 1987 being Suit

No. 10/1987. The suit was dismissed on 23.9.1992 and the plaintiff took no steps seeking the reinstatement of the said suit since the said suit is

stated to have been dismissed for non-prosecution by the plaintiff. There is a vague mention in paragraph 11 of the plaint of the plaintiff having filed

a prior suit but even the fate of this suit is not specified therein.

In my considered view in view of the earlier suit of the plaintiff having been dismissed and the plaintiff having taken no steps to revive the same

and unless the plaintiff shows that a fresh cause of action has arisen it may not be permissible for the plaintiff to file another suit for the same relief

as the earlier suit already stands dismissed.

The second aspect is arising from the provisions of Section 185 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the said Act).

The land in question is Bhumidhar land. Learned counsel for the plaintiff states that the plaintiff is residing on the same. In my considered view that

would not make any different since there is no dispute about the nature and character of the land. The provisions of Section 185 of the said Act

read as under:

Congnizance of suits, etc., under this Act. - (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of

Schedule 1 shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), take congnizance of any suit, application,

or proceedings mentioned in column 3 thereof.

(2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in column 3 of the Schedule

aforesaid.

(3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof.

(4) A second appeal shall lie from the final order passed in an appeal under Sub-section (3) to the authority, if any, mentioned against it in column

9 of the Schedule aforesaid.

A perusal of Schedule 1 at Serial No. 11 reads as under:

S. Section of Description of Period of Time Proper Court of Court of Court of

No. the Act suit application Limitation from Court original 1st App- 2nd App-

and other which fees jurisdi- eal eal

proceedings period ction

begins

55 Suit for partit- None None As in Revenue Deputy Chief

ion of holding the Assistant Commiss- Commiss-

of a Bhumidhar. Court ioner ioner

Fees in case

Act, of Bhum-

1870, idhar only.

on land

revenue

payable.

A reading of the aforesaid provisions shows that in case of a suit for partition of holding of a Bhumidhar it is the Court of Revenue Assistant

before whom the proceedings has to be initiated and the Civil Court is not to look into the matter.

In view of both the aforesaid reasons the suit is not maintainable and is dismissed.