Dismissed

Chamko Devi v. Mohinder Singh

Himachal Pradesh HC2 Oct 2010RSA/55/1999

Case brief

AI extract

What is this about?

In an appeal under Section 100 CPC, the High Court dismissed the suit seeking declaration and injunction regarding a partition of joint family holding. The court held that under Section 171 of the H.P. Land Revenue Act, 1954, the Civil Court lacks jurisdiction over partition matters and allotment of land, as the Revenue Officers acted within their statutory authority.

What did the court decide?

The appeal filed under Section 100 CPC is dismissed; the pending application is also dismissed; no order as to costs.

Chamko Devi Vs Mohinder Singh — Civil Procedure and Limitation | Himachal Pradesh HC (2010)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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RSA No.55 of 1999

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Date of Decision: 4^th October, 2010

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Smt. Chamko Devi and another	Appellants
Versus
Mohinder Singh and others	Respondents

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Coram

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The Hon’ble Mr. Justice Sanjay Karol,J.

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Whether approved for reporting¹ ?

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For the appellants: Mr. Dinesh Sharma, Advocate For the respondents: Mr. G.D.Verma, Sr. Advocate, with Mr.B.C.Verma, Advocate, for respondents No. 6 to 8.

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Sanjay Karol, J. (Oral)

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This is the plaintiffs’ appeal filed under Section 100 of the Code of Civil Procedure, 1908. Concurrent findings of fact recorded by the Courts below have been assailed.

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Smt. Chamko Devi, Shri Partap Singh and Smt. Sarju filed a suit for declaration and injunction against the predecessor-in-interest of the present respondents. For adjudication of the present appeal, appellants are referred to as the plaintiffs and the predecessor-in-interest of the respondents as the defendants.

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Plaintiffs filed a suit assailing order dated 11.6.1982 passed by the Assistant Collector, Grade-II, Solan. The same was resisted by the defendants.

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Whether the reporters of Local Papers are allowed to see the Judgment?

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The trial Court framed the following issues:-

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Whether the Khataunies prepared by the Revenue staff is not in accordance with mode of partition as alleged? OPP

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Whether Shri Sant Ram is the tenant of defendants as alleged. If so, its effect? OPP

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Whether proper inquiry regarding nature, possession and location have not been made, if so its effect? OPP

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

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Whether this Court has no jurisdiction to entertain the suit as alleged? OPD.

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Whether the suit is not within limitation? OPD. 7. Whether the suit is bad for non-joinder of necessary parties? OPD.

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In terms of judgment and decree dated 15.5.1990 passed by

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Senior Sub Judge, Solan, in Case No.244/1 of 1985, plaintiffs’ suit was dismissed in toto.

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Aggrieved of the same, plaintiffs filed an appeal before the District Judge. It is pertinent to mention that independently plaintiffs also assailed the order dated 11.6.1982 passed by Assistant Collector, 2^nd Grade, Solan, by way of revision petition before the Financial Commissioner as stipulated under the H.P. Land Revenue Act, 1954 (hereinafter referred to as the Act). During the pendency of the appeal, the said revision petition was dismissed on merits by Financial Commissioner (Appeals), H.P., Shimla vide order dated 4.10.1991. Plaintiffs sought amendment of the plaint and additional issue was framed by the lower appellate Court and vide order dated 28.8.1998 the matter

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was remitted to the trial Court for recording findings on additional issue No.7-A, which reads as under:-

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“7-A Whether the order dated 4.10.1991 passed by the Financial Commissioner, H.P. is illegal? OPP

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Vide judgment dated 28.8.1998, learned Senior Sub Judge, Solan, upheld the order passed by the Financial Commissioner.

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In terms of judgment and decree 21.11.1998 passed by in Civil Appeal No. 93-S/13 of 1990, District Judge, Solan, dismissed the plaintiffs’ appeal.

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It is urged by Mr. Dinesh Sharma, learned counsel for the plaintiffs that the Courts below have erred in returning the findings for the reason that before preparing “Fard Kabza” no inquiry was carried out by the revenue officials as per H.P. Land Records Manual. In any event the same was not prepared; before passing the order prescribing the Mode of Partition, notice to Partap Singh, who was minor was not issued; the land in question was not partitioned in accordance with the Mode of Partition (Ext.PX-5), as excess and better land stood allotted to the respondents. The Appellate Court did not deal with the evidence led by the plaintiffs in support of Issue No.7-A; and the land being in possession of a tenant, third party, was not considered by the appropriate authorities.

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There is no dispute that vide order dated 17.6.1977, on an application filed by the defendants, Assistant Collector, Ist Grade, Solan, had prepared the Mode of Partition. Importantly title of the land and respective share holding of the parties was not in dispute. On 8.1.1982 Instrument of Partition (Ext.PX-1) was prepared. On the basis of revenue record Khatauni (Ext.PX-4) was prepared. Entries of mutation were also prepared (Ext.PX-2). On 11.6.1982 Assistant Collector, Ist Grade, passed

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an order partitioning the suit land. Importantly at this stage no grievance either with regard to location, non-adherence of provisions of the Act or violation of the principles of natural justice was raised by any of the parties. The order was passed in the presence of the parties and their counsel. At the time of passing the order no objection was raised with regard to non-compliance of the relevant provisions adopted at the time of preparation of Mode of partition (17.6.1977). Importantly, plaintiffs filed suit which also was dismissed on 16.9.1983. Thereafter, on 3.8.1985 the instant suit was filed by the plaintiffs. As already noticed plaintiffs had simultaneously instituted proceedings before the Financial Commissioner . The same were also instituted on 3.8.1985 itself. Delay of three years in instituting appropriate proceedings gains significance and importance for the reason that apparently plaintiffs accepted the order passed by the Collector and only as an after-thought, in order to defeat the rights of the defendants, subsequently instituted the relevant proceedings. Importantly before the Revisional Authority only two pleas were raised (i) that before passing the order the Collector did not appoint any guardian for minor Partap Singh (ii) No notice was issued to plaintiff Chamko Devi before the matter was decided by the Assistant Collector, Ist Grade. The Revisional Authority after perusing the record rejected the contentions by holding :-

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“6. I have gone through the record of the case very carefully and have also heard the arguments adduced by S/Shri Sashi Pandit, Advocate, counsel for the respondents. The revision petitions have been drafted very vaguely and do not mention specifically the irregularities in the orders of the Revenue Officers below. The learned counsel for the petitioners pointed out some minor variations in the different kinds of land, which has been allotted to the

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parties. Since the partition had been affected in accordance with the mode of partition, which had been upheld by all the Revenue Courts above, Assistant Collector, Ist Grade, minor variations in areas do not constitute an irregularity, which would vitiate the entire partition proceedings. The learned counsel for the petitioners cited 1988-PLJ-203 and 1988 PLJ-390 in support of his contention but these are of no help to the petitioners since the mode of partition was adhered to by the learned Assistant Collector, Ist Grade. In respect of case pertaining to Samlech village, the learned counsel for the petitioners for the first time raised the issue regarding tenancy of Shri Ramoo, deceased respondent and this matter was never raised before the Revenue Officers below. There has been no miscarriage of justice since the issue of tenancy of Shri Ramoo even if it is allowed, will not cause any appreciable change in the partition proceedings. The present revision petitions are against order dated 2.7.1985 of the learned Divisional Commissioner, Shimla, who had dismissed the revisions in default and for non-prosecution. The petitioners are not likely to get any tangible relief even if the orders of dismissal of the revision petitions in default are quashed since there are concurrent findings of two Revenue Officers below. The petitioners instead of filing applications for restoration of their revisions before the Divisional Commissioner, chose to challenge the said orders before this court, which appears to be a delaying tactic. The petitioners right from the year 1977 have been adopting tactics to delay the partition proceedings on one pretext or the other. They were afforded enough opportunity by the various Revenue Officers, who had been conducting the partition proceedings during the last 14 years. There has been no irregularity or illegality in the orders of the Revenue Officers below and as such no interference is called in the orders in which final partition proceedings were sanction by the Assistant Collector, Ist Grade. As a

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result, the revision petitions do not succeed and are dismissed. Orders dated 8.1.1982 and 11.6.1982 of the Assistant Collector, Ist Grade, relating to Village Shamlech and Anji sanctioning partition respectively are upheld. Copy of the order be placed on the case files of Revision Petitions No.154/85, 215/85, 216/85 and Misc. Application No.31/85.”

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Both the Courts below have concurrently held that the plaintiffs’ suit was not maintainable keeping in view of the provisions of Section 171 of the Act. The Act is a complete Code in itself. It lays down complete procedure and mechanism for dealing with matter falling within the ambit and scope of the Act. Chapter IX deals with partition of the land jointly held by the parties. It lays down a complete mechanism for partitioning the land. Any person aggrieved of the order passed by the officers can assail the same before the Appropriate authorities duly constituted under Chapter II of the Act. Section 171 specifically excludes jurisdiction of Civil Court with respect to matter falling within the jurisdiction of the Revenue Officer. For deciding the controversy in issue relevant provisions of the Act are reproduced as under:-

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“171. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers – Except as otherwise provided by this Act-

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i. 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 matter 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 –

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ii. A Civil Court shall not exercise jurisdiction over any of the following matters, namely –

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(i) Any question as to the limits of any land which has been defined by a Revenue officer as land to which this Act does or does not apply;

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(ii) to (xvi)………………………………………………

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(xvii) Any claim for partition of an estate holding or tenancy, or any question connected with, or arising out

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of proceedings for partition not being a question as to title in any of the property of which partition is sought. (xiii) 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.”

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The provisions of the Act are unambiguous and clear. In the absence of any question of title in respect of property for which partition is sought jurisdiction of Civil Court is barred. Similarly question of allotment of land on the partition of the holding is not to be gone into by the Civil Court.

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The Court below fully appreciated the evidence led by the parties including the statement of Ramesh Chand (PW-5). In any event his statement does not help the plaintiffs. From the record produced during his examination he clarified that it could not be shown as to what nature, quality or location of the land was allotted to the parties.

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Importantly what is now sought to be urged by the plaintiffs is missing in the grounds of appeal.

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In the instant case, on the very same day plaintiffs instituted two proceedings (i) suit for declaration filed before the Civil Court (ii) revision petition filed before the appropriate authority in exercise of their right under Section 17 of the Act. Importantly, plaintiffs did not file any appeal as stipulated under Section 15 of the Act for the simple reason that it had become time barred. Suit as instituted was not maintainable. However, this question looses significance for the reason that subsequently plaintiffs were allowed to amend the plaint and assail the order passed by the Financial Commissioner.

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Now in the instant case, title of the land is not in dispute. The share holding is not in dispute. It is urged that in violation of Mode of partition, poor quality and less land has been allotted to the plaintiffs. The Courts below have repelled this contention on merits. I see no infirmity in the same. That apart, jurisdiction of the Civil Court to go into this aspect of the matter is specifically barred. In the instant case, it cannot be said that either there has been violation of principles of natural justice or any procedural irregularity adopted by the revenue authorities while passing the orders under challenge.

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Reliance on the decisions by Mr. Sharma, reported in Smt. Bhekhalu Devi vs. Smt. Ram Ditti, 2008 (2) Shim. L.C. 412, Dhanki Mahajan and others vs. Rana Chandubha Vakhatsing (dead) by his legal representatives and others, AIR 1969 SC 69 , Secretary of State vs. Mask & Co. AIR 1940 PC 105 , Chubniya Devi vs. Jindu Ram, 1991 (1) Sim. L.C. 223, is misconceived. The ratio is clearly distinguishable on facts.

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The Apex Court in Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna Ranganayakamma, 1997 (5) SCC 460, has held as under:-

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“Under the normal course of civil procedure, the jurisdiction of the trial of the civil suits in relation to the matters covered under the Acts being time-consuming and tardy the lack of financial support or otherwise incapacity in defending or working the rights in the civil courts and by hierarchy of appeals defeat justice. Obviously, therefore, the civil suits by necessary implication stand excluded unless the fundamental principles of procedure are not followed by the tribunal constituted under the land reform laws. In this case, the Act concerned extinguished the preexisting right, creates new rights under the Act and requires

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tribunals to enquire into the rival claims and a form of appeal has been provided against the order of the primary authority. Thereby the right and remedy made conclusive under the Act are given finality by the orders passed under the Act.”

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Further under Chapter VII of the Act the Revenue Officer has the jurisdiction to go into the question of title by converting himself as a Civil Court. No such prayer was either made or sought for before the Revenue Officer.

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No question of law much less substantial question of law arises for consideration in the present appeal.

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Both the Courts below have correctly appreciated the material on record. No illegality, infirmity or perversity can be said to have been committed by the Courts below. Consequently, the appeal is dismissed so also the pending application. There shall be no order as to costs.

Chamko Devi v. Mohinder Singh

Case brief

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Chamko Devi v. Mohinder Singh

Case brief

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